FEDERAL COURT OF AUSTRALIA

Laing v State of South Australia [2012] FCA 676

THE COURT ORDERS THAT:

1.    John Walter Graham, Sonny Graham, Katie Ray, Jack Schultz, Betty Bullen, Arthur Dimer, Ollan Dimer, Mabel Wilson and Maureen Young be joined as respondents (Ngadju respondents) to the proceedings.

2.    The State of South Australia and the applicants in the Far West Coast claim in South Australia (if that applicant intends to provide evidence in support of the strike out application) file and serve such evidence by 12 July 2012.

3.    The applicant to file and serve such evidence as he relies upon in opposition to the strike out motion by 24 August 2012.

4.    The Ngadju respondents and the State and (if so advised) the Far West Coast applicant file and serve outlines of submissions by 29 August 2012.

5.    The strike out motion be listed for hearing at 10 am on 3 September 2012.

6.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The claim area of this claim by Michael Alfred Laing on behalf of the descendants of Gordon Charles Naley (the Naley claim) overlaps substantially with the claim area of the Far West Coast Native Title Claim (SAD 6008 of 1998). It relates to a substantial area of land in the south western region of South Australia. Obviously, as the two claims are overlapping, s 67 of the Native Title Act 1993 (Cth) (NT Act) is engaged and will have to be addressed.

2    The claim area of this claim extends west of the South Australian/Western Australian border. In Western Australia it also overlaps to a relatively small degree with two separate portions of the claim by John Walter Graham, Sonny Graham, Katie Ray, Jack Schultz, Betty Bullen, Arthur Dimer, Ollan Dimer, Mabel Wilson and Maureen Young (Ngadju applicant) who are the applicant in John Walter Graham and Others on behalf of the Ngadju People v State of Western Australia and Others, WAD 6020 of 1998 (Ngadju claim).

3    The Ngadju applicant has now applied in this application for orders:

1.    that the Ngadju applicant be joined as a respondent to the Naley claim; and

2.    that the Naley claim be struck out pursuant to s 84C(1) of the NT Act or that it be otherwise summarily dismissed.

4    It is agreed that, as a first step, the Court should determine the joinder application and, if it is successful, give directions for the hearing of the strike out application.

5    The Naley claim was commenced only on 18 April 2012. It is in the process of being notified under s 66 of the NT Act. The Ngadju applicant, upon being notified of the Naley claim, will be entitled to become a party to the Naley claim by reason of the overlap: s 84(3)(a)(ii), by giving notice under s 84(3)(b). That opportunity has not yet arisen.

6    The reason why the Ngadju applicant makes the joinder application under s 84(5), before s 84(3) operates, is clear. The Ngadju claim proceedings are at a very advanced stage. The Ngadju claim has been on foot since 1998. There have been three tranches of Aboriginal evidence. The final tranche of lay and expert evidence was heard between 7 and 30 May 2012. The Ngadju applicant’s written submissions in the Ngadju proceedings are due on 6 July 2012 and oral addresses on the separate question are set down for 24 September 2012.

7    The Ngadju claim is a registered native title claim. The NT Act affords registered native title claims procedural rights over the entirety of the claim area, including the overlap area. Furthermore, over the course of the three tranches of connection evidence, connection evidence has been heard in the Ngadju claim concerning the area overlapped by the Naley claim.

8    Due to the overlap of the two claims, the Ngadju claim is currently being adversely affected by the mere existence of the Naley claim by delaying the answer to a separate question on native title connection in the Ngadju proceedings. The overlap is also a barrier to any mediated outcome with the respondents in the Ngadju claim.

9    In those circumstances, there seems considerable sense and little injustice if the Ngadju applicant were joined as a party to the Naley claim at this time. The strike out motion can then be heard, and determined. If it is successful, the Ngadju claim can be heard and determined (or otherwise resolved). If it is not successful, s 67 will operate to require the two claims – at least to the extent of the overlap – to be addressed together. As the Ngadju claim is so advanced, there should be as little procedural impediment to its progress as is possible and fair.

10    Counsel for Mr Laing opposes the joinder application at this point. He relies upon the fact that the joinder would give the Ngadju applicant the standing to pursue the strike-out motion. Consequently, he argues, the joinder application should be deferred and/or the strike-out motion stayed, to avoid the consequence of s 84C(2). That obliges the Court to “consider” a strike-out motion by a party to a claim before any further proceedings take place in relation to the application for determination of native title in the Naley claim. If the operation of s 84C(2) can thus be avoided, the Ngadju applicant and Mr Laing may submit to formal case management or mediation of their claims in relation to the overlapping areas.

11    I acknowledge the difficulty which Mr Laing applicant is confronted with. Because of the overlaps and the proposal for the completion of the Ngadju claim, including the Naley claim overlaps, being expedited and being heard in September 2012, it is obviously desirable that that matter proceed as efficiently and as quickly as possible. I am informed and I accept that, by reason of s 84C(2), the existence of the strikeout application by persons who are parties to the Naley claim may impede the conduct of at least Court directed case management conferences in the Naley claim. However, I do not accept the argument that staying the strikeout application would amount to its “consideration” for the purposes of s 84C(2) so as to free up those processes. In my view, the “consideration” referred to in s 84C(2) contemplates consideration and disposition, rather than simply consideration in the day to day sense of “thinking about”. Nor do I consider that there is any scope for the word “consider” to have a more refined meaning of “thinking about and staying” or “thinking about and making some orders”, other than orders determining the application. In my view, the intention of s 84C(2) is for a strike out claim, once made, to be resolved. That intention should not be frustrated by denying the Ngadju applicant the immediate status as a party to the Naley claim, when there is imminently an entitlement to that status provided under the NT Act. So, whilst I appreciate the subtlety of the argument advanced on behalf of Mr Naley, I do not accept that argument.

12    I will join the Ngadju applicant as a party to the Naley claim. The consequence is that there is a strikeout application on foot. I will give directions for its hearing.

13    I add that there is no reason why the parties should not in any event conduct such private negotiations as they consider appropriate. Indeed, I am not to be taken as accepting that s 84C(2) would operate to exclude a case management conference and/or mediation in the Ngadju claim, or in the Naley claim – in the latter case on the basis that such processes were directed to refining or resolving issues arising on the strike-out motion. If that had the incidental effect of leading to a resolution of both the strike-out motion and the Naley claim, I do not consider s 84C(2) would preclude it.

Associate:

Dated:    21 June 2012