Barker J
In the matter, the Court considered an interlocutory application by the State of Western Australia (State) to strike out certain paragraphs of an amended application for compensation for extinguished or affected native title rights and interests. The area covered by the application for compensation includes the Gibson Desert Nature Reserve (Reserve 34606).
Submissions
The native title applicants had applied for compensation under s 61(1) of the Native Title Act 1993 (Cth) (NTA). They claimed that the reservation and vesting of Reserve 34606 validly extinguished native title and they were entitled to compensation under various provisions of the NTA and put forward 1 primary and 2 alternative arguments in support.
The State claimed that 2 of the applicant arguments were inconsistent with the judgment of Western Australia v Ward [2002] HCA 28 (Ward) and should be struck out.
The applicants accepted that the parts of its claim that the State relied on did not support its case but argued that it should be given the opportunity to advance an alternative case on the basis that the proceeding is acknowledged to be a “test case” by the State. The applicants also argued that they should be permitted to be in a position where, if the matter proceeds to the High Court through an appeal process, it is able to invite the High Court to reconsider the analysis of the relevant legal issues provided in the joint judgment in Ward.
Reasoning
The Court considered that:
on a logical or strict view of 2 of the 3 claims made, the prospects of success are narrow.
the issues raised are relatively novel and potentially highly significant to the future administration of the NTA
the arguments in support of the contentions are not 'fanciful'.
should the alternative arguments ultimately succeed, time and expense will be saved if evidence on all alternative contentions is taken at trial.
In all of these circumstances the Court did not consider it appropriate to strike out the passages that the State objected to.
Orders
The interlocutory application of the State was dismissed.