In this matter the Court ordered that the amended claimant application in NSD 1248 of 2014 be dismissed pursuant to s 190F(6) of the Native Title Act 1993 (Cth).
[1] The issue before the Court was whether the Court should of its own motion exercise its discretion to dismiss an application for a determination of native title pursuant to s 190F(6) of the Native Title Act 1993 (Cth) (NTA). [2] Section 190F(6) of the NTA confers a power on the Court to dismiss an application for a determination of native title (the application in issue), on the application of a party or on its own motion, where:
the Court is satisfied that the application in issue has not been amended since it was considered and not accepted for registration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and
in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.
[3] Section 190F(5) provides the conditions precedent to the operation of s 190F(6).
[4] Other relevant provisions of the NTA are summarised in Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 76 (Pappin No 1) at [7]-[14] (for further background to the matter, see Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales [2017] FCA 817 (Pappin No 2)).
[5] Where the Registrar has not accepted a claim for registration and has given the applicant a notice under s 190D(1), the applicant has a right to apply to the National Native Title Tribunal (NNTT) to reconsider the claim (see s 190E). As long as the NNTT is not reconsidering a claim under s 190E, the applicant may also apply under s 190F to the Court for a review of the Registrar’s decision not to accept the claim. As emerged, Griffiths J found that the applicant in the current proceeding sought neither a reconsideration of the Registrar’s second decision, nor a review of that decision by the Court.
[6] The Court was satisfied that the application should be dismissed pursuant to s 190F(6) of the NTA for the reasons provided in paragraphs [30] – [39].
Griffiths J stated that: [38] The applicant failed to provide any evidence that a further amendment would be made to the application for native title which would lead to a different outcome on a reconsideration by the Registrar. In the absence of any evidence or material to the contrary, I find it unlikely that the deficiencies in the claimant application as identified by the delegate will be remedied.
[39] In His Honour’s view, there was no other reason within the meaning of s 190F(6)(b) why the application should not be dismissed.
[40] Finally, the Court did not accept the applicant’s submission that NTSCORP was a vexatious litigant and was improperly joined as a respondent. On 4 December 2015, NTSCORP lodged an application to be joined as a party in the substantive proceeding (NSD 1248 of 2014), which was opposed by the applicant. The Court made separate orders on 16 March 2016 that NTSCORP be joined as a respondent in both the substantive proceeding and in the related review proceeding (NSD 1603 of 2015). To date the applicant had not sought leave to appeal those interlocutory orders. Those interlocutory orders still stood. There was no material before the Court to support the applicant’s serious allegations that NTSCORP has acted improperly or vexatiously.
His Honour further observed that: ‘The applicant’s attack on NTSCORP appears to be based on the mere fact of NTSCORP’s opposition to the applicant’s case. As these reasons demonstrate, that opposition was soundly based and responsibly advanced by NTSCORP. Although NTSCORP was three days late in filing its outline of written submissions in respect of the current application, Mr Pappin did not suggest that the applicant was prejudiced by this short delay. It appears that Mr Pappin had at least 11 days to consider NTSCORP’s written submissions before he filed the applicant’s outline of written submissions.’
[41] For these reasons, the amended claimant application was dismissed pursuant to s 190F(6) of the NTA. There was no order made as to costs.