This matter concerned two interlocutory applications filed by the applicant in the Yamatji Nation proceeding (WAD345/2019) and the applicant in the Widi Mob Proceeding (WAD31/2019) seeking the dismissal of Part A of the Badimaya Barna Guda native title determination application (WAD7/2020) and the removal of Adrian Lawson, a member of the Badimaya Barna Guda applicant, as a respondent to the Widi Mob claim. Both interlocutory applications were upheld.
The Badimaya Barna Guda native title application overlaps with a considerable part of the Yamatji Nation claim. All members of the Badimaya Barna Guda applicant and broader claim group are accepted members of the Yamatji Nation claim group and will become native title holders once the determination is finalised, if they choose to identify that way. The interlocutory application was heard the day before the listed consent determination hearing for the Yamatji Nation claim. The Yamatji Nation applicant sought dismissal of the overlapping claim to allow for the determination to proceed.
Mortimer J held that the Part A Badimaya Barna Guda claim is an abuse of process due to unreasonable delay and should be dismissed. The claim for a different native title over part of the Yamatji Nation claim area was filed less than three weeks before the scheduled consent determination and after four years of negotiation. Her Honour was not persuaded that there was a reasonable explanation for the delay. Relying on Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177, Mortimer J reiterated that abuse of process should be sparingly found where continuing would be either manifestly unfair to the other party or lower public faith in the justice system, and considered the Badimaya claim to be both. The Badimaya Barna Guda applicants had earlier opportunities to dispute the claim during the negotiations. It was considered that the claim would impact a much narrower group and would prolong proceedings, imposing unfair expense on Yamatji Nation and the State. The low prospects of success in the claim were also considered. Mortimer J found the efforts in the Yamatji Nation proceedings deserved finality.
Mortimer J ordered that Mr Lawson be removed as a respondent to the Widi Mob proceeding, holding that the defence or protection of his asserted native title interests would no longer be viable once the Badimaya Barna Guda Part A proceeding is dismissed as an abuse of process.