This case concerned an interlocutory application filed by Wajarri Yamatji native title holders to amend the determinations of native title made by the Court on 19 October 2017 (Part A Orders), 23 April 2018 (Part B Orders), and 7 December 2018 (Part C Orders).
Background
At the time of these proceedings there were eight native title determination applications made on behalf of the Wajarri Yamatji People. The Part A, B and C orders were determined in I.S. (deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215, Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 and Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945 respectively.
The description of native title holders in the determination made by the Part A Orders contained a formatting error. Additionally, since the time of the determination of the Parts A-C Orders, further research had identified additional Wajarri Yamatji apical ancestors and thus the applicants sought to amend the list of native title holders in the Parts A-C Orders.
Decision
Relying on Lovett v State of Victoria (No 4) [2011] FCA 931, Griffiths J held that the variations sought under the interlocutory application engaged r 39.05(f) of the Federal Court Rules 2011 (Cth) (‘FCR’) which allowed the Court to vary an order after it had been determined if the party who it was in favour of gave consent.
Griffiths J acknowledged the requirement of the variation of an order under r 39.05 of the FCR to be consistent with s 37M of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’), as held in Nyoni v Pharmacy Board of Australia [2018] FCA 1707. Section 37M of the FCA Act provides that the overarching purpose of civil practice and procedure provisions, inter alia, is to facilitate the resolution of disputes as quickly, inexpensively and efficiently as possible.
In considering the application of r 39.05 of the FCR, Griffith J determined that allowing the Parts A-C Orders to be amended was consistent with avoiding the injustice of incorrectly recording the identity of native title holders in the determination. Griffith J allowed the variation.