Rangiah J
The principal proceeding in this case is an application for compensation on behalf of the Bigambul People pursuant to s 61(1) of the Native Title Act 1993 (Cth) (NTA). In this judgment, Rangiah J considered two joinder issues and an adjournment application. His Honour dealt with each of the three issues separately.
QSNTS Joinder Issue
The first issue is an application for joinder from Queensland South Native Title Services (QSNTS). The compensation application was publicly notified by the National Native Title Tribunal on 26 February 2020. The notification day specified was 11 March 2020. The notice stated that a person who wants to become a party to the compensation application must write to the Registrar of the Federal Court on or before 10 June 2020. On 18 March 2020, QSNTS filed a “Notice of Intention to Become a Party to an Application (Form 5) with the Federal Court. The basis for which was the QSNTS’s status as the representative body for the Southern and Western Queensland Region, the area of the compensation application.
Under section 84(3)(a) of the NTA, a person “is a party to the proceedings” if, relevantly, the person is covered by any of subparagraphs (i) to (vi) of s 66(3)(a) and the person notifies the Federal Court in writing that they want to be a party to the proceeding within the relevant period. The Bigambul People submitted that s 84(3) must be read with the note to r 34.104 of the Federal Court Rules 2011 (Cth), to the effect that a person only becomes a party when the Registrar gives notice of each party joined to the application at the end of the relevant period. His honour, citing Dowsett J in Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730 at [19] held that, ‘persons who had given notices pursuant to s 84(3)(b) of the NTA [are] already parties to a proceeding, subject only to the possibility of their being dismissed pursuant to s 84(8) or (9).’
His honour concluded that an ordinary reading of s 84(3) of the NTA indicates that a person becomes a party upon giving the prescribed notice to the Federal Court, and noted that r 34.104 of the Federal Court Rules does not indicate any contrary construction. That a Registrar is to give notice of each party joined to the application at the end of the relevant period is a stipulation of administrative convenience, and does not suggest that a person does not become a party at an earlier time. At [24]-[25] his honour concluded, ‘pursuant to s 84(3) of the NTA, a person within any of subparagraphs (i) to (vi) of s 66(3)(a) becomes a party to an application to which s 61 applies at the time the person gives notice to the Federal Court that the person wants to become a party. Therefore, QSNTS became a party to the compensation proceeding when it filed its Form 5 on 18 March 2020.’
Bigambul PBC and Individuals Joinder Issue
The second issue, firstly involves an application for joinder from the Bigambul Registered Native Title Body Corporate (Bigambul PBC) on the basis that the native title application includes areas where it holds native title on behalf of the common law native title holders. His honour held at [29], that the Bigambul PBC is ‘covered by s 66(3)(a)(ii) of the NTA, and falls within the category of persons prescribed by s 84(3)(a)(i)’ and that the Bigambul PBC became a party to the proceeding when it filed its Form 5 on 19 March 2020.
The stated basis in the Form 5 for individuals Anthony Turnbull, Regina Munn, Lilly Graham and Brenton Sefo Wallace becoming parties to the proceeding is that they are common law native title holders. A question arose as to whether the four individuals come within the description of persons who claim “to hold native title in relation to land or waters” under s 84(3)(a)(ii) of the NTA. The issue of construction of s 84(3)(a)(ii) is whether the expression “hold native title” is intended to include the prescribed body corporate which holds the native title on trust, or the persons determined to hold common or group rights comprising the native title, or both. If that provision only applies to the Bigambul PBC, then four Bigambul People could not genuinely claim to hold native title in the area. If so, it may be that they are not joined to the proceeding merely by filing a Form 5, but are required to seek joinder under s 84(5) of the NTA.
However, s 84C(2) provides that the Court must, before any further proceedings take place in relation to the main application, consider the strike out application made by the State under s 84C(1). His honour, citing the judgment in Williams v Grant [2004] FCAFC 178, held that the requirement to “consider” a strike-out application under s 84C(2) does not require that the strike-out application be determined first. And because his honour had considered the procedural issues involved in the strike-out application twice previously, the court was open to consider this application for joinder. His honour found that the individuals clearly have an interest in the proceeding as Bigambul People, and that there is utility in allowing their joinder at this stage. Orders made to have the four individuals joined as parties to the proceeding.
The Adjournment Issues
The third issue was an application for adjournment of the hearing of the strike-out application. The principal applicant’s lawyer sought an indefinite adjournment of the hearing of the strike-out application, due to his client being uncontactable, as he had self-isolated on country to protect himself from contracting COVID-19. The principal applicant’s lawyer also suggested the hearing be adjourned pending the end of the pandemic as both he and his client were at risk should they contract the disease. His honour concluded that an indefinite adjournment would be inconsistent with the objectives set out in s 37M of the Federal Court of Australia Act 1976 (Cth), and – citing Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 – Microsoft Teams would be a suitable alternative should the applicant not be able to attend the hearing. However, recognising the difficulties faced by the applicant in gaining instructions, his honour proposed to allow an adjournment until 24 June 2020.