Mansfield J
In this matter, the Court declined to make orders on an interlocutory application by Robert Miller other than refusing leave to amend the interlocutory application. The Court also gave Mr Miller 7 days to file a notice if he proposes to make any further amendments.
Background
At an earlier hearing, order 1 of Mr Miller's application had been refused. See West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733.
Mr Miller then applied for orders to be included as a respondent and the Applicant for the West Coast Native Title Claim to produce evidence in relation to the native title application.
The Applicant for the West Coast Native Title Claim satisfied Mr Miller's information request by the filing and service of an affidavit. When the hearing commenced, Mr Miller withdrew his application to be joined as a respondent party. Mr Miller then asked to further amend his interlocutory application:
to seek a finding that the authorisation process for the Far West Coast claim is defective; and
to seek an order that the consent determination orders will include specific provisions relating to the establishment of a separate Mirning Aboriginal Corporation and that the Far West Coast Aboriginal Corporation, the proposed prescribed body corporate for any consent determination, refer matters arising on Mirning country to the Mirning Aboriginal Corporation; and
to redefine the claim group to include the descendants of Gordon Charles Naley as part of the Mirning people.
These amendments were opposed by the Far West Coast claim Applicant.
Consideration
Justice Mansfield refused to grant Mr Miller leave to further amend the interlocutory application as the first amendment did not seek any orders and the arguments Mr Miller raised would involve the final determination and it was unclear how a final determination can be made on an interlocutory application.
His Honour also said that it was not appropriate for the Court, on the application of a member of the claim group, to require a consent determination, where there is presently none, to include certain terms which might not be supported by any of the claimant members.
Mansfield J noted that the issue of including the descendants of Gordon Charles Naley in the claim group could not proceed because further evidence is required and the same issue was raised in a separate interlocutory application by Michael Alfred Laing. His Honour ordered that Mr Miller’s proposed amended order would be adjourned to the same date as the Laing application. The final remaining order sought, a catch all clause for unspecified orders, remains on foot and can be activated if necessary.
Orders
Leave to amend the application of Robert Victor Miller in terms of the proposed paragraphs 5, 6.1, 6.2 and 6.3 is refused.
The application of Robert Vincent Miller and the application of Michael Alfred Laing be stood over to 9am on 30 January 2013.
Liberty to apply.