The matter involved a notice of motion brought by Una Branfield (‘the Branfield Applicants’), seeking an order that the Wharton Application be struck out pursuant to s 84C of the newly amended Native Title Act 1993 (Cth) (NTA). The Branfield Applicants claimed that, in order to comply with s 61 of the new NTA, it was necessary for Wayne Wharton to have been authorised by all members of the relevant native title claim group per s 251B of the new NTA.
On this matter his honour concluded at [28] that ‘any amendment made, after the commencement of the Amendment Act, to a native title determination application filed prior to the commencement of the Amendment Act, would lead to the removal of the protection implicit in item 21… the consequence would be that a strike out application could immediately be brought because the application as amended did not comply with s 61 of the New Act.’
His honour found at [33] that while the amended application filed on 28 May 1999 describes, with greater particularity, the native title claim group, ‘it is clear that that is meant to describe the Kooma People in a way that was intended to comply with s 61(1) of the New Act.’ On 18 June 2003, Emmett J concluded that Wayne Wharton was not authorised to bring the Wharton Application. Continuing at [34], ‘I consider that item 21 of Sch 5 to the Amendment Act operates in relation to the Wharton Application, such that s 84C is to be applied on the basis that the Wharton Application need comply only with s 61 and s 62 of the Old Act. It is common ground that the Wharton Application does not fail to comply with s 61 and s 62 of the Old Act.’ For these reasons, the strike out application was dismissed.