White J
This case concerns an interlocutory application filed on 11 December 2018, in which the applicant seeks an order recognising her as amicus curiae in the proceedings, and that the order of the Court made on 12 October 2018 listing the present matter for consent determination the day after the present day (i.e. the 14 December 2018) be vacated.
The Court ordered that the relief sought by the applicant is refused.
Amicus Curiae
His Honour notes two situations in which a court may hear from non-parties in litigation; one of those being where there has been a grant of leave to a person to appear as amicus curiae. This has been characterised as an ‘ability’ of the Court to accept an offer of assistance from the amicus, rather than a right possessed by a person to address the Court in the role of amicus (Johnson v Sammon (1974) 7 SASR 431). His Honour holds that the amicus must be ‘willing to offer the Court a submission on law or a relevant fact which will assist it in a way in which the Court would not otherwise be assisted’ (Levy v the State of Victoria (1997) 189 CLR 579). His Honour considered the threshold of assistance held by the High Court in Roadshow Films Pty Ltd v iiNet Limited (2011) 248 CLR 37; that the Court needed to be satisfied it would be ‘significantly assisted’ by the submissions of the amicus, and that any consequential cost or delay is not disproportionate to the assistance.
White J states that common situations of an amicus include, but are not limited to; ‘those in which the interests of a minor or other person at a disadvantage are in issue or in which matters affecting the public interest are at stake or in which the interests of a party may not, by reason of the indigent status of the party or for other reasons be adequately represented’ (at [10]).
In the present case, the applicant seeks leave to appear as amicus in order to advance a submission that not all applicants, herself included, have agreed to the proposed consent determination. White J rejected her application for the following reasons:
By definition, an amicus is not already a party to the proceedings, as the present applicant is, being one of the persons who comprise an applicant in action;
His Honour found at [15] that the motives behind the application were to ‘use the occasion as a vehicle to ventilate those differences’ between the applicant and other parties to the proceeding, which ‘would not be appropriate’;
The applicant was represented in the proceedings by two separate sets of solicitors; although it is established that the persons who make up the applicant in native title proceedings are not entitled to separate representation (Burragubba v State of Queensland (2017) 254 FCR 175);
All of the parties, bar one, have legal representation and are ‘well able to assist the Court in arriving at a correct determination in the case’ (at [18]);
The State and the Commonwealth, as parties to the case, have a ‘particular responsibility with respect to the protection of the public interest’, and there is ‘no reason to suppose that either the State or the Commonwealth are not discharging their obligations in this respect’ (at [19]);
The issue which the applicant seeks to raise as amicus as not been overlooked by the Court;
The applicant wishes to appear as amicus in order to ‘obtain a form of vindication of her own position’ (at [22]) rather than highlight a point of law or fact overlooked by the Court;
The application was also brought late to the Court, which was without explanation.
His Honour concluded that to accept the position of amicus would in this case result in additional delay, cost and ‘probably vexation’ to the other parties to the proceedings’ (at [25]).