Mortimer J
Background
The principal proceeding in this case was a dispute as to whether the applicant was a member of the Karlka Nyiyaparli Aboriginal Corporation RNTBC (KNAC). KNAC is a prescribed body corporate holding native title on trust for the Nyiyaparli People pursuant to the consent determination made in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453 (Nyiyaparli determination). Having been refused membership to the KNAC, the applicant sought declaratory relief that they were ‘Nyiyaparli People’ as defined in the KNAC’s rule book and the Nyiyaparli determination. In this case, the applicant applied to vary Court orders regarding the principal proceedings.
Variation Application
The application sought to amend Court orders requiring a mediation to be completed by 23 October 2020, with affidavits to be filed in the following four weeks, and a further case management hearing to be scheduled once affidavits were filed. The parties failed to complete this, and on 4 December 2020 the applicant communicated to the Court that they had not been admitted to the KNAC. The applicant’s legal representative informed the court that the applicant wished to file further affidavit material, and proposed a timetable which would see this material filed in February 2021.
Decision
His Honour concluded that this was not acceptable. The matter had been substantially delayed and the parties had not acted in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth). The KNAC was ordered to file and serve any affidavit material they wished to rely on, allowing further time due to difficulties in being able to hold a meeting of the common law holders. The applicant was given an opportunity to respond to any new affidavit material served by the KNAC, but their opportunity to file further affidavits in chief was not taken up in accordance with orders which they had agreed upon.