This case involved the dismissal of an application for judicial review of a decision dated 26 February 2021 by a delegate of the Native Title Registrar to register the Kenbi Indigenous Land Use Agreement under s 24CK of the Native Title Act 1993 (Cth). The respondents included the Native Title Registrar, Northern Land Council and Northern Territory.
Background
On 23 April 2021 the applicant applied for judicial review; however, the application failed to state any grounds of review upon which the delegate’s decision was impugned and did not provide any cause of action. On 25 May 2021 at the first case management hearing, orders were made allowing the applicant to amend the original application to remedy this issue. The amended application was filed on 7 June 2021 and still did not state any grounds of review nor provide any cause of action.
Submissions
The Northern Land Council (NLC) submitted that consistent with r 26.01 of the Federal Court Rules 2011 (Cth) (‘FCR’), the amended application should be dismissed as it provided no reasonable cause of action. Alternatively, under s 31A(2) of the Federal Court of Australia Act 1976 (Cth), the amended application should be dismissed as the applicant had no reasonable prospect of successfully prosecuting the proceedings. Additionally, the NLC asserted that under s 11(7) of the Administrative (Judicial Review) Act 1977 (Cth) (ADJR Act) and r 16.21 of the FCR, the amended application should be struck out as it was ambiguous and likely to cause delays in proceedings. Finally, the NLC claimed that under r 31.05 of the FCR the application should be dismissed as it did not disclose a ground of review.
The Norther Territory asserted the same claims as the NLC and additionally asserted that under r 13.01(a) of the FCR, the amended application should be dismissed as it did not set out any orders that the applicant sought from the Court and did not specify any grounds of review.
Issues
Griffith J accepted the NLC’s contention that if it was determined that the amended application failed to disclose a reasonable cause of action, the alternatives provided by the NLC and Northern Territory did not need to be considered.
Decision
Griffiths J concluded that the amended application did not contain any discernible grounds of review and was inconsistent with the requirements of an application for judicial review under ss 5(1) and 11(1)(B) of the ADJR Act. His Honour additionally held that the applicant had been given sufficient time and notification to amend the application to be consistent with the requirements under the ADJR Act. Given this, Griffiths J concluded that summary judgment should be entered in favour of the respondents.