Jagot J
This matter concerned an own motion of the Court to dismiss an application filed by Marjorie May Strickland and Anne Joyce Nudding (the applicant) which had failed the registration test four times.
The Court has the power to make an order for dismissal when satisfied that the application is not likely to be amended in a way that would lead to a different outcome and there is no other reason why the application should not be dismissed.
The primary reason that the delegate of the Native Title Registrar refused registration was that the native title claim group was a subgroup only of the local descent group comprising the descendants of Kitty Bluegum.
The applicant sought leave to amend the application and argued that the Court could not conclude that the application was unlikely to be amended in a way that would lead to a different outcome once considered by the Registrar.
The State of Western Australia submitted that there was no power to amend the application to overcome the applicant’s authorisation failure. A different set of people cannot reauthorise a claim brought on behalf of another set of people.’
The applicant argued that there was not express limit on the power of amendment of an application and a defect in authorisation is not necessarily fatal.
The Court noted the logical difficulty of the State's argument that no changes to a claim group can ever be made, no matter what the reason, but did not consider it necessary to resolve the issue of power. The Court found that a deliberate decision was made to file an application that was patently by a subgroup only of a native title claim group and an amendment of the magnitude and significance proposed should not be permitted even if it is within power..
The Court was satisfied that the application was not likely to be amended in a way that would lead to a different outcome because the Court was not willing to permit the amendment application.
Orders
The application is dismissed