FEDERAL COURT OF AUSTRALIA

Strickland v Western Australia [1999] FCA 221

PROCEDURE- native title- combination of applications – whether court has relevant power – whether power to amend appropriate source

Words and Phrases :  “combines”

Native Title Act 1993 (Cth) s 64

Federal Court Rules O 13 r2, O78 r7

MARJORIE MAY STRICKLAND & ANNE JOYCE NUDDING (ON BEHALF OF THE MADUWONGGA PEOPLE) v THE PREMIER AND STATE OF WESTERN AUSTRALIA AND OTHERS

WG 76 OF 1997 and WG 63 OF 1998

THE COURT ORDERS THAT:

1.                   By consent the orders made on 12 February 1999, not having been entered, be vacated. 

2.                   Order 1 under the heading “Consolidation of Claims” made on 3 July 1998 in each of applications WAG 76 of 1997 and WAG 63 of 1998 be revoked, and applications WAG 76 of 1997 and WAG 63 of 1998 be deconsolidated.

3.                   Application WAG 76 of 1997 be amended so that henceforth it is combined with and includes the applications previously made in applications WAG 63 of 1998 and WAG 6237 of 1998.

4.                   The said three applications be combined and continued in and under the application numbered WAG 76 of 1997.

5.                   Application WAG 76 of 1997 be amended to take the form set out in the Amended Native Title Determination Claimant Application ( Form 1) annexed to the affidavit of Dianne Baruffi filed in support of this application.

6.                   Service of the application on any party other than the Premier and the State of Western Australia be dispensed with.

7.                   The time for the service of this motion be abridged to the period between the service of the motion and the hearing of this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     The applicants bring a notice a motion to amend native title determination applications numbered WC94/3, WC95/11 and WC98/20.  The application is that these applications be combined.  Respectively the applications bear the court numbers WAG76 of 1997 and WAG63 of 1998 and WAG6327 of 1998.  The former two applications were consolidated by order of the court made on 3 July 1998.

2                     The motion as amended in the course of hearing also seeks that WAG 6327 of 1998 be consolidated with the other two matters previously consolidated.

The concept of combination arises from the provisions of s 64 of the Native Title Act (1993) (Cth) (“the Act”) which read as follows:-

64(1A)        An application may at any time be amended to reduce the area of the land or waters covered by the application.  ( This subsection does not, by implication, limit the amendment of applications in any way.)

(1)               An amendment of an application is not to result in the inclusion of any area of land or waters that was not covered by the original application.

(2)               However, if :

(a)        the application is a claimant application ( see section 253) ; and

(b)        the amendment combines the application with another claimant application or claimant applications;

subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications.”

3                     On behalf of the first respondent it is submitted that there is a legal distinction between combination and consolidation.  The word "combine" is in its dictionary meaning a word which means:

“..join together, unite for a common purpose; ... coalesce in one substance ... (Australian Oxford Concise Dictionary 7^th Ed, p216).”

In contrast "consolidation" is defined Halsbury Laws of England 4^th Ed vol. 37 para. 69 as:

“A process by which two or more causes or matters are by order of the court combined or united and treated as one cause or matter.  The main purpose of consolidation is therefore to save costs, time and effort, and to make the conduct of several actions more convenient by treating them as one action.”

4                     It is submitted for the first respondent that the difference between consolidating an action with another or others and amending an application so as to combine it with another or others is that in a consolidation the two matters are treated as one, whereas in combination the two matters are one.  It is therefore submitted that it would not be appropriate for me to exercise the power of the Federal Court in relation to consolidation arising under the Rules of the Federal Court to effect a combination such as that to which the motion seeks to attract an order.

5                     On the applicants behalf it was submitted that they were entitled to amend these applications pursuant to O 13 r 3 of the Federal Court Rules.  That subrule provides:

“A party may, without leave, amend any pleading of his once at any time before the pleadings are closed.”

Order 78 rule 2 of the Federal Court Rules addresses native title proceedings.  O 78 r 3(1) provides that:

“The order applies to a proceeding in the court to which the Native Title Act applies.”

Subrule 3(2) provides that:

“The other orders of the rules apply, so far as they are relevant and not inconsistent with this order, to a proceeding in the court to which the Native Title Act applies.”

Therefore, says the applicants’ case, O 13 r 3 applies to allow one amendment without leave.

On behalf of the applicants, it was also submitted that O 78 r 3 is not to be read as necessitating an application for amendment to be made in court.  However, on behalf of the first respondent, it is submitted that O 78 r 7 is inconsistent with O 13 r 3(1) and that O 78 r 7 should therefore prevail in accordance with the provisions of O 78 r 3(2).  Order 78 rule 7 reads:

7(1)     A person applying under section 64 or 66Bof the Native Title Act to amend a main application must file 2 copies of the application and each map and other accompanying document with the Court.

  (2)     As soon as reasonably practicable after an application is filed, the Registrar must forward one copy of the application and each map and accompanying document to the Native Title Registrar.

  (3)     The Court may give directions and make the orders it considers appropriate.”

6                     In my opinion, O 13 r 3(1) cannot apply because it is a rule which is applicable to a “pleading”.  Order 1 r 4 of the Federal Court Rules defines "pleading" in a way which excludes an application.  An application to amend an application is therefore directed to something which is not a pleading within O 13 r 3(1).

7                     It then becomes a question as to how an application for amendment by way of combination ought to be dealt with by the Court.  It is apparent that an application in its original form is to be made to the Court, pursuant to s 61.  That provides the environment in which the Rules apply where they are not inconsistent with O 78 and any provision of the Act.  It is not contended before me that any provision of the Actprovides the requisite authority for the making of amendment or answers the issue here raised.  I do not consider that O 78 r 7 can be regarded as a code and as providing a source of authority for amendment.  Rather, it is a provision which in subrule (1) requires the filing of a certain number of copies of an application, directs the Registrar to do something with one copy and other documents in subrule (2), and empowers the court in subrule (3).  I am therefore of the view that, as the matter of amendment is not covered by O 78 r 7, the ordinary rules of the Federal Court relating to amendment apply.

Those rules would be found in O 13 r 2(1) and would require an application or motion to the court.  That subrule provides:

            “Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.”

8                     If that seems overly formalistic, there are considerations which justify it.  The first is that it is Parliament which has decreed that applications are to come in the first place to the Court.  Secondly, there are restrictions on applications which appear in ss 61A and 62.  True it is that pursuant to s 84C, strike‑out applications can be brought in respect of non‑compliant applications within either ss 61, 61A or 62.  However, s 84C itself is not expressed to be applicable to, for instance, the limitation contained in subs 64(1) to the effect that:

“An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.”

If the amendment is brought by way of application or motion to the Court, then other parties are notified and there is the opportunity of them checking that matter and, in a sense, providing a compliance regime of the provisions of the Act. 

9                     For these reasons, I consider that it is appropriate for amendments of applications, such as those envisaged under s 64 of the Act, to be brought to the Court by the means provided by O 13 r  2 of the Federal Court Rules.

Associate:

Dated:              15 March 1999