FEDERAL COURT OF AUSTRALIA

JED (Deceased) v State of Western Australia [2008] FCA 1684

JED (DECEASED) & ANOTHER ON BEHALF OF THE ESPERANCE NYUNGARS and ARTHUR DIMER & OTHERS ON BEHALF OF THE NGADJU PEOPLES v STATE OF WESTERN AUSTRALIA & OTHERS

WAD 6097 of 1998, part of WAD 6221 of 1998 and part of WAD 6181 of 1998

SIOPIS J

23 OCTOBER 2008

PERTH

IN RELATION TO THE FIRST APPLICANT’S AMENDED NOTICE OF MOTION FILED ON 22 OCTOBER 2008, THE COURT ORDERS THAT:

1.         The applicant be granted leave to amend its notice of motion:

(a)       to disclose the names of the persons bringing the application to replace the applicant under s 66B of the Native Title Act 1993 (Cth) (the Act);

(b)      to seek relief under s 66B of the Act to replace the applicant; and

(c)       otherwise in accordance with the notice of motion filed on 22 October 2008.

2.         The minute of proposed amended application be amended by the replacement of the existing attachment B2 with the replacement B2 that was handed up in Court.

3.         Elaine Bullen, Jenny Woods, Diane Clinch, Veronica Williams-Bennell, Graham Tucker and Jarman Jamieson on behalf of the Esperance Nyungar people (the Proposed Applicant) do jointly replace the current applicant on the grounds that:

(a)       Malcolm John Bullen and James Edward Dimer (the Current Applicant) are now deceased and can no longer be authorised by the claim group to make the application or deal with matters arising in relation to it; and

(b)      the Proposed Applicant is authorised by the claim group to make the application and to deal with matters arising in relation to it.

4.         The applicant be granted leave to amend the application by filing a new Form 1 and map in the form of annexure “SK1” (as amended) to the affidavit of Sophie Kilpatrick sworn 22 October 2008.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application to replace the applicant and to amend Form 1 of the application of a native title determination application.

2                     The intended replacement applicant is comprised of six persons who are members of a claim group known as the Esperance Nyungar claim group.  These persons are Ms Elaine Bullen, Mr Jarman Jamieson, Mr Graham Tucker, Ms Veronica Williams‑Bennell, Ms Jenny Woods and Ms Diane Clinch.  There is a need to replace the applicant because the persons comprising the existing applicant have died.  Under the Native Title Act 1993 (Cth) (the Act) it is necessary, in these circumstances, for the application to replace the existing applicant to be made under s 66B(1).

3                     I give the persons comprising the intended replacement applicant leave to amend the notice of motion to name as the applicants on the motion, the persons who are referred to in the application under s 66B(1) as the intended replacement applicant.

4                     Section 66B(1)(a)(ii) provides that an application may be made for the replacement of the existing applicant where the existing applicant or one of the persons comprising the existing applicant, has died.  There is also a requirement under s 66B(1)(b) that the persons who bring the application for the replacement of the applicant be authorised by the claim group to bring that application.

5                     Mr Vincent has taken me to the evidence in relation to the holding of the claim group authorisation meeting.  That evidence is the evidence of Ms Sophie Kilpatrick and also of the anthropologist, Dr Suzi Hutchings.  As well, there is, importantly, the evidence of Ms Patricia Ranger.  In addition, there are affidavits filed in compliance with the requirements in s 62(1)(a) of the Act by each of the persons comprising the proposed new applicant in respect of the authorisation meeting.

6                     Mr Creewel, with the support of some of the other respondents, submitted that there might be a question as to whether there was sufficient notice given of that meeting to all of the persons who are now identified as the claim group.  In particular, he raised the question as to whether there was sufficient notice given of the presence within the claim group of descendants of Ms Lily Bevan, who is one of the daughters of a person referred to as, Maggie of Thomas River.  Maggie of Thomas River had two partners and there were two different lines of descent flowing from the union with each of those two partners.

7                     There is, as Mr Creewel pointed out, some discrepancy in the affidavits as to the way the claim group is described and exactly what was authorised at the meeting.  However, I am satisfied that the notice which is Annexure “PR1” to the affidavit of Ms Ranger, sworn on 20 May 2008, did give sufficient notification of both limbs of descent of Maggie of Thomas River.  I am fortified in that by the further evidence that among the people who attended the claim group authorisation meeting on 28 March 2007 were some descendants of the union between Maggie of Thomas River and Moses Taylor which includes Ms Lily Bevan and the Knapp family ‑ being the line of descent in respect of which the query was raised.

8                     I am also satisfied that there is evidence which demonstrates that the traditional way in which this claim group makes decisions is by consensus and that this was the decision‑making process which was followed at the authorisation meeting.

9                     Accordingly, in those circumstances, I am prepared to make an order that the existing applicant be replaced by the proposed applicant under s 66B of the Act.

10                  As to the rest of the application to amend the Form 1 of the application, I am satisfied that each of the requirements for that amendment to be made have been satisfied.  Further, counsel for the respondents did not raise any objections in relation to the fulfilment of any of those requirements.

11                  During the course of the hearing I also gave leave to substitute the existing Attachment “B2” with the attachment which Mr Vincent handed up to me.  That attachment should be part of the amended minute.

12                  Therefore, in addition to making orders under s 66B(1) for the replacement of the applicant, I will also make orders that the applicant be granted leave to amend the application by filing a new Form 1 in the form of Annexure “SK1” to the affidavit of Sophie Kilpatrick, sworn on 22 October 2008, subject to the amendment to which I have referred in the preceding paragraph.

Associate:

Dated:         13 November 2008