Background
This judgment concerned an interlocutory application in relation to two overlapping native title claims. The Yugunga-Nya claim was first filed in 1999. The Gingirana #4 claim was filed in 2020 and overlapped with one fifth of the Yugunga-Nya claim. The Gingirana People have an existing determination in their favour. The Court had made an order under s 67(2) of the Native Title Act 1993 (Cth) (NTA) to split into Parts A and Part B, with Part B (the overlap) to be dealt with together with the Gingirana #4 claim in one proceeding. The Yugunga-Nya applicant filed an interlocutory application seeking that they be joined as a respondent to the Gingirana #4 proceeding and that the Gingirana #4 proceeding be struck out pursuant to s 84C(1) of the NTA on the grounds that it did not comply with s 61 of the NTA. It also sought that the Gingirana #4 proceeding be summarily dismissed on the grounds that the proceeding is an abuse of process. The Gingirana #4 applicant submitted that there was a substantive dispute between the two applicants which should be resolved through mediation, and if unsuccessful, trial.
Abuse of Process
The Yugunga-Nya applicant submitted that the Gingirana #4 application was an abuse of process due to its timing and that the Gingirana People had never previously involved themselves in the overlap area. They also submitted several affidavits by Yugunga-Nya members who stated that the Gingirana #4 claim was ‘motivated by other reasons’. The Gingirana #4 applicant submitted that the alleged abuse of process had not been particularised and that the late application could not of itself be sufficient to dismiss their application. The State recognised the delay in the filing of the Gingirana #4 application but submitted that there was no abuse of process as there was no clear instance of it, distinguishing the case from Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104 where there was.
Mortimer J found the affidavit evidence formulaic, inferring that it was mostly drafted by legal representatives. Her Honour still gave it weight as each deponent had adopted it. No further details were given as to what the ulterior motivations were ‘despite the Yugunga-Nya applicant being asked to outline the basis of the allegations which would be made on the interlocutory application.’ Regarding the delay arguments, her Honour said it was not enough of a basis to summarily dismiss the application as an abuse of process and that the costs, time and resources for a separate interlocutory hearing were unjustifiable. However, her Honour did say that the Yugunga-Nya applicant was welcome to press the argument at trial.
Authorisation Question
The Yugunga-Nya applicant stated that the Gingirana #4 application lacked a sufficient number of individuals to authorise it. Further, they submitted that there was insufficient notification for the authorisation meeting. The Gingirana #4 applicant stated that authorisation questions were dealt with at the National Native Title Tribunal (NNTT) stage of the proceeding. After initially failing the registration test, the NNTT directed the Registrar to register the claim as it was satisfied with the authorisation process. Other submissions included s 84D(4) of the Native Title Act 1993 (Cth) being able to address the alleged failure and that summarily dismissing the claim would not prevent a new claim being filed.
Mortimer J referred to Hazelbane v Northern Territory of Australia [2008] FCA 291, drawing on the principle ‘that where evidence on the strike-out and the evidence in the main application may overlap, the court may consider hearing the strike-out application at the main hearing.’ Her Honour said that since the Gingirana People have a consent determination in their favour, it showed they were not incapable to authorise an application. Her Honour also gave weight to the NNTT reconsideration, stating that it was unlikely that the claim was so obviously defective for the Court to prioritise the Yugunga-Nya challenges. Her Honour found that the evidence was not sufficient to uphold a strike-out and that the authorisation challenges would be more appropriately dealt with at trial.
Conclusion
The Court ordered that insofar as the interlocutory application challenged the authorisation of the Gingirana #4 application and challenges the proceeding as an abuse of process, that the Yugunga-Nya application be adjourned to trial. Mortimer J rejected the Gingirana #4 applicant’s submission regarding mediation due to the history between the two groups. Her Honour stated that since orders had been made under s 67(1) of the NTA, there was not present need for the Yugunga-Nya applicant to be joined as a respondent to the Gingirana #4 proceeding.