FEDERAL COURT OF AUSTRALIA

Champion v Premier & State of Western Australia [1999] FCA 581

PRACTICE AND PROCEDURE – application to combine existing and overlapping claimant applications – whether part of claim area may be combined with claim area of another application.

Federal Court of Australia Act 1976 (Cth) s 22

Native Title Act 1993(Cth) s 64

Native Title Amendment Act 1998 (Cth)

Federal Court Rules O 13 r 2, 78 rr 7, 7(3)

Strickland v Western Australia [1999] FCA 221 noted

BRIAN CHAMPION AND ORS v PREMIER AND THE STATE OF WESTERN AUSTRALIA AND ORS

WG 2 OF 1998

DOROTHY DIMER AND ORS v PREMIER AND THE STATE OF WESTERN AUSTRALIA AND ORS

WG 65 OF 1998

MERLE FORREST AND ORS v PREMIER AND THE STATE OF WESTERN AUSTRALIA AND ORS

WG 70 OF 1998

LEE J

7 MAY 1999

PERTH

THE COURT ORDERS THAT:

If the applicants are to move for orders to give effect to these reasons they are to file a minute of the proposed orders.

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

REASONS FOR JUDGMENT

1                     Before the court are motions to combine native title claimant applications made under the Native Title Act 1993 (Cth) (“the Act”). The claimant applications are in respect of land in the State of Western Australia, described as “the central goldfields”. Many of the claims “overlap”. The object of the motions is to give effect to an accord said to have been reached between the parties to the applications to reduce eighteen applications to three.

2                     It is proposed that an area in which eleven of the claims “overlap”, described as “central east goldfields”, become the subject of one claimant application. The area in which the eighteen claims “overlap”, described as “central goldfields”, become the subject of a second application, and the area in which seven of the claims “overlap”, described as “central west goldfields”, become the subject of a third application.

3                     It is obvious that the object of the motions meets the requirements of s 22 of the Federal Court of Australia Act 1976 (Cth) for the exercise of the jurisdiction of the Court, namely, that multiplicity of proceedings be avoided in respect of matters before the Court. It is also consonant with the underlying purpose of amendments to the Act effected by the Native Title Amendment Act 1998 (Cth), namely, that separate litigation of overlapping claims be discouraged and that the consolidation of such claims into single claims be promoted (Explanatory Memorandum par 35.38; cf s 202(6) of the Act).

4                     One of those amendments was to s 64 of the Act which now reads as follows:

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

                Note:      If such an amendment is made, the Court may make an appropriate costs order under section 85A.

     (1)       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.

                Note:      The Federal Court Rules provide for the amendment of applications.

     (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)       In the case of a claimant application, the fact that the Registrar is, under section 190A, considering the claim made in the application does not prevent amendment of the application

     (4)       If an application is amended, the Registrar of the Federal Court must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.

     (5)       If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant:

                (a)        that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and

                (b)        stating the basis on which the new applicant is authorised as mentioned in paragraph (a).”

5                     The motions are opposed by the State, the principal respondent in each application, on the ground that the orders sought in the motions are not permissible under the Act or under the Federal Court Rules. The State contends that claimant applications may not be divided so that parts thereof may be combined with parts divided from other applications.

6                     The State submits that the Act does not contemplate “assignment” to another “proceeding” of part of the area in respect of which determination of native title has been sought by application by a native title claim group and that inclusion of a new area in a claimant application may only be effected by combination of several applications then on foot. It is submitted that the area to which an application applies cannot be divided and parts of the area “combined” with other applications.

7                     The State’s contentions have substance.

8                     The Act does not, and perhaps cannot, require a native title claim group to make one application for a native title determination in relation to all land and waters in respect of which native title is claimed by that group. Although it may be undesirable that there be multiple applications by a native title claim group, for various reasons multiple applications may be unavoidable. However, if application is made by a native title claim group for determination of native title in relation to an area, the application and the area are interdependent. Under s 64 of the Act the area may be reduced by amendment of the application but the area in respect of which a determination is sought may not be enlarged unless the area is enlarged by combination of the application with another application or applications.

9                     The other application or applications may be applications that have been made by the same native title claim group or by other claim groups.

10                  It is obvious that it would be undesirable for multiple separate determinations of the native title interests of a native title claim group to be made in respect of the area over which native title is claimed in the application lodged by that claim group.

11                  The appropriate course, and one which would meet the way the Court is expected to function and the object of the Act, would be to combine “overlapping” applications in one proceeding. Thereafter, the Court may make appropriate orders in that proceeding governing how the interests of different claimant groups are to be met in preparation of the matter for trial and how the trial is to be conducted. Similarly the interests of different respondents may be protected by appropriate directions.

12                  The Court has ample power to make directions that will provide for an efficient trial and recognize the different needs of parties engaged in litigation involving multiple interests.

13                  With regard to the power to make orders combining applications, it is plain that O 78 r 7(3) provides a very broad power to be used by the Court in such circumstances. Order 78 r 7 has been drawn to provide the procedural steps made necessary by the provisions of s 64 of the Act. As noted earlier, one provision of s 64 is that the area in relation to which native title is to be determined may be enlarged by the combination of applications.

14                  At the time O 78 was prepared it was understood, of course, that it applied to a sui generis field of law and that it would be necessary for provisions in O 78 dealing with native title to prevail over other rules if the requirements of the Act were to be met in respect of the litigation of matters arising under the Act.

15                  I note that in Strickland v Western Australia [1999] FCA 221 R D Nicholson J, in an ex tempore decision, suggested that O 78 r 7 did not “cover” amendment of an application. It was not necessary for his Honour to give further consideration to that issue for he was satisfied that an order could be made “combining” applications by use of the provisions of O 13 r 2 relating to the amendment of a “document” in a proceeding.

16                  I am satisfied that there is power in O 78 r 7 to amend claimant applications by making orders combining such applications.

17                  Section 64 of the Act provides for amendments to applications which reduce or enlarge the area covered by the application. Order 78 r 7 is the rule providing the procedure by which such applications to amend are to be dealt with by the Court. The only amendment by which an area may be enlarged is by an amendment which combines applications. It follows that O 78 r 7 has been drawn to deal with that event when it speaks generally of an application to amend. The broad power in r 7(3) is the statement of an unfettered discretion in that regard.

18                  If the applicants intend to seek orders which give effect to the above reasons, an appropriate minute of the proposed orders is to be filed.

Associate:

Dated:              7 May 1999