This case concerns an interlocutory application made by the Yinhawangka Gobawarrah (YG) people to vacate the current trial dates and programming orders for the hearing of a separate question. The separate question related to the disputed overlap area of the Yinhawangka Gobawarrah, Jurruru #1 and Jurruru #2 native title claims.
Procedural History
The basis for the interlocutory application was the refusal by Yamatji Marlpa Aboriginal Corporation (YMAC) of a funding request made by the YG people, first made on 31 October 2017. YMAC is the native title representative body for the area in which both the YG people’s and Jurruru people’s native title claims are located. Both the Jurruru #1 and Jurruru #2 claims were already being funded by YMAC at the time. The YG applicant sought funding to (a) defend a strike out application brought by the Jurruru applicant, for $15,530 and (b) if the strike out failed, funding to prosecute the YG application through to trial and judgment, in the initial sum of $159,150. This was refused on 17 November 2017. No reasons were given for YMAC's decision, which as Mortimer J noted gave rise to ‘predictable responses’ of ‘resentment and a sense of unfairness’ (at [17]). Reasons were eventually given but concern was raised over the internal review process of the YMAC.
The Jurruru strike out application proceeded and was dismissed by Barker J, allowing the YG claim to continue.
The solicitor for the YG people made inquiries of the Department of Prime Minister and Cabinet (DM&C) about a direct application of funding under s 203FE(1) of the Native Title Act 1993 (Cth). It was submitted that this process would take at least four months. After extensive and continued correspondence between YMAC and the YG people regarding review of their original decision to refuse funding, YMAC affirmed its refusal, again without giving reasons. The YG people then asked for reasons for this decision invoking the Administrative Decisions (Judicial Review) Act 1977 (Cth). Reasons were provided by YMAC on the 7 September 2018, including that YMAC believed the YG application was unlikely to succeed.
Consideration
The YG people sought a modified timetable of the Court’s programming orders, in relation to the filing of expert reports and the holding of experts’ conference, on the basis of this lack of funding. Mortimer J affirmed her judgment in Agius v State of South Australia (No 4) [2017] FCA 361 stating ‘the overarching purpose in s 37M(1) of the Federal Court of Australia Act is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible…The Court must do its best to reach a conclusion that is consistent with [this] objective… while ensuring the active parties have a reasonable opportunity to present their respective cases’. Her Honour continues ‘Existing authorities in the native title jurisdiction of this Court about the interrelationship between case management, judicial power and assertions of lack of funding, tend firmly against the application to delay the trial’ (Agius at [84]-[86]).
Mortimer J rejected the application for the amended timetable on the basis that the proposed new timetable was contingent on numerous assumptions, including the timeframe for the review by PM&C, and that the external review application will be successful. Her Honour also considered that the age of the dispute over the overlap area was protracted and it was ‘well past time for some certainty, and finality, about who holds native title over this country’ (at [82]). Mortimer J also considered that should the YG people be self-represented in the separate question due to a lack of funding, it would be manageable due to the existing material on the Court file which contains material likely to form part of the YG applicant’s case. Her Honour also noted witness availability and the Court’s availability for reasons rejecting the delay.