FEDERAL COURT OF AUSTRALIA

Wilkes v State of Western Australia [2003] FCA 1140

NATIVE TITLE – Strike-out application – No formal defect in application – Application based on alleged weakness of claim – Strike-out application dismissed.

Native Title Act 1993 (Cth) s 84C

Federal Court Rules Order 20 rule 2(1)(c)

RICHARD WILKES and ALBERT CORUNNA & ORS v STATE OF WESTERN AUSTRALIA & ORS

WAG 142 of 1998

WILCOX J

8 OCTOBER 2003

PERTH

THE COURT ORDERS THAT:

1.         The application to strike-out matter WAG 142 of 1998 be dismissed.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     On 7 August 2003, one of the respondents to proceedings WAG 141 of 1998 and WAG 142 of 98 - namely, Christopher Robert Bodney - filed a notice of motion seeking orders that each of these applications be struck out.  His notice of motion referred to two sources of power:  first, s 84C(1) of the Native Title Act 1993 (Cth)(‘the Act’);  and, second, Order 20 rule 2(1) of the Federal Court Rules. 

2                     As required by s 84C(2) of the Act, I listed the strike-out applications before considering the future course of the proceedings, and, in particular, before considering an application to amend.

3                     However, when the matter was called this morning, it appeared that the applicants in matter WAG 141 of 1998 wished to discontinue that proceeding.  There was no opposition to such an order except by Mr Bodney, but he was unable to satisfy me that he would suffer any prejudice if that proceeding was discontinued.  Accordingly, I granted leave to the applicants in that matter to file a notice of discontinuance. 

4                     Mr Bodney pressed his application to strike-out matter WAG 142 of 1998.  He asserted that he was a member of the appropriate claimant group; his family being the last remaining persons in the Aboriginal societies known as the Ballarruk and Didjarruk peoples.  He said these peoples were the traditional owners of the relevant land.  He sought to tender evidence to suggest that the applicants in matter WAG 142 of 1998 were descendants of people who had occupied different traditional land.

5                     The material that Mr Bodney sought to tender included genealogical tables.  The admission of this evidence was objected to by Mr McIntyre SC, counsel for the applicants.  I rejected the tender; the tables seemed to me irrelevant to a strike-out application. 

6                     When I asked Mr Bodney about the basis of the strike-out application, he told me he thought the applicants had no case as they were not associated with the traditional owners of the land; on that basis the matter should not be allowed to proceed, as it would inevitably fail.  The proceeding represented a waste of time and money.

7                     I accept that Mr Bodney genuinely holds that opinion.  However, I cannot act on the basis of that opinion, whether it be well-founded or not, in considering a strike-out application. 

8                     Mr Bodney did not make any criticism of the form of the application.  It has been amended since the commencement of the Native Title Amendment Act 1998 (Cth).  Consequently, the formal validity of the application falls to be evaluated against the provisions of the amended Act, rather than the Act as it stood at the date of the application.

9                     Mr Bodney did not suggest the amended application fails to comply with the amended Act. 

10                  No other party wished to put any submission in support of the strike-out application. 

11                  I think the strike-out application must fail.  I am not satisfied there is any formal defect in the application.  I have no idea whether the application will succeed.  That is a matter to be resolved after the evidence is complete and submissions have been made.  However, there is no basis on which I can say that the application does not comply with ss 61 or 62 of the Act.  Nor do I think it is possible to say that the proceeding is frivolous, vexatious or an abuse of process, as would be required to engage the power of the Court under Order 20 rule 2(1) of the Federal Court Rules.  As I say, the application may ultimately fail, but that is a very different matter from saying the proceedings are frivolous, vexatious or an abuse of process. 

12                  I dismiss the application to strike-out matter WAG 142 of 1998.

Associate:

Dated:              3 November 2003