In this case, Rangiah J considered an application for Cynthia Kemp, Bevan Tull and Joh Waterton (the joinder applicants) to be joined as respondents to the Wadja native title claim pursuant to s 84(5) of the Native Title Act 1993 (Cth) (NTA). The joinder was allowed, and the new respondents were ordered to pay the native title applicant’s costs of the hearing and any costs thrown away as a result of the joinder.
The joinder applicants are members of the Iman People, who are native title holders over an area to the south of the Wadja claim area. The basis for the joinder is the joinder applicants’ assertion that they hold native title rights and interests within part of the Wadja claim area, which may be affected by a determination of native title in favour of the Wadja people.
The first two elements for joinder under s 84(5) NTA require consideration of whether the applicant for joinder has established a prima facie case that they have an interest that may be affected by a determination of native title in the proceedings. At [24] his Honour notes that ‘as there can only be one determination of native title for an area pursuant to s 64 of the NTA, I accept that a determination of native title in favour of the Wadja people would affect any native title interests that the joinder applicants may hold.’
The third element for joinder requires consideration of whether it is in the interests of justice for the joinder applicants to be joined to the claim. Rangiah J, at [32], notes that while it is likely that the Iman People intend to enlarge their own claim to encompass part of the Wadja claim area as submitted by the Wadja applicant, the joinder applicants assert that they are seeking joinder merely to defensively assert their rights, which must be taken on face value.
His Honour found that the applicant would be prejudiced, as the proceeding is at an advanced stage and joinder will delay the proceeding and likely cause a wastage of costs. The Court ultimately concluded that it was in the interests of justice to join the joinder applicants partly because members of the Iman people have asserted interests in the claim area for a substantial time, and unless joinder is permitted, the prima facie case demonstrated by the joinder applicants would not be considered. Citing Gamogab v Akiba (2007) 159 FCR 578 at [64], Rangiah J held that considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the court at the one time.
For these reasons, his Honour ordered that the joinder applicants be joined to the proceeding. Due to unreasonable delay in applying, the joinder applicants were ordered to pay the Wadja applicant’s costs of the hearing of the joinder application and any costs thrown away as a result of the joinder. Rangiah J also noted at [41] that ‘the conduct of the joinder applicants in delaying in bringing their application was unreasonable’ and the ‘judgment should not be seen to condone the conduct of the joinder applicants.’