White J
In this matter the Court considered whether to strike out two applications for the determination of native title under the Native Title Act 1993 (Cth) (NTA) because they ‘have not been, and will not be, prosecuted with reasonable diligence’.
Background
The two applications, ‘Mount Drummond’ and ‘Cresswell/Benmara’ were commenced in 2001 by the Northern Land Council (NLC) on behalf of the respective applicants. The two claims are known as ‘polygon’ claims. White J referred to paragraph [7] of Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461, which sets out the reasons why such applications are called 'polygon claims'.
From 2001-2007, the two applications were managed by the National Native Title Tribunal. In March 2007 Mansfield J made orders for the applications to be mediated and the Federal Court then took over their management.
White J noted that it was the Court's experience that ‘polygon claims… are not ever prosecuted to determination’. Instead, the claimant groups file fresh applications over areas with boundaries which correspond to, or are more closely aligned with, pastoral lease boundaries. Usually, before determinations are made on those replacement applications, the relevant polygon claims are discontinued. It was evident that the NLC contemplated a similar course being followed with respect to the Mount Drummond and Cresswell/Benmara applications. This meant that the applications are unlikely ever to be prosecuted to conclusion in any event, and they have been kept on foot until replacement applications have been filed.
Lack of prosecution
White J described the slow history of the applications, and other related applications, which spanned between 2007 and 2017, including a number of intra-group disputes that had remained unresolved. This meant that the filing of the pastoral lease claims to replace the polygon claims could not progress. His Honour noted at [21] that the Court has been ‘concerned for some time by the age of the two applications and the time which has elapsed without them being prosecuted actively’ and that concern ‘became acute on the Court being told that the NLC would not be prosecuting these applications or replacement applications’.
White J accordingly made orders listing these two applications for hearing, to decide if they should be struck out for want of prosecution. No party filed any affidavits or submissions in relation to the hearing.
The Court’s power to dismiss an application
His Honour considered the Court’s power to dismiss an application for determination of native title for want of prosecution. The Court noted that the applications had been current for some 18 years with little action taken to prosecute them to conclusion. Further, the intra-group disputes make it unlikely that the claimants will be able to prosecute replacement applications based on the pastoral leases over the areas to which they relate for some considerable time yet. The NLC acknowledged that it is not able to take action to prosecute either application or to bring replacement applications.
His Honour noted that dismissal for want of prosecution with reasonable diligence is not a decision on the merits of the claim and does not give rise to an estoppel in any subsequent proceedings brought by the claimants which are properly prosecuted.
His Honour consequently found that Mount Drummond and Cresswell/Benmara applications should be dismissed because of the applicant’s failure to prosecute them with reasonable diligence.
Orders
The applications be dismissed.