FEDERAL COURT OF AUSTRALIA

Torres v State of Western Australia [2012] FCA 972

Torres v State of Western Australia [2012] FCA 972

CORRIGENDA

1.    Order 1 on the Orders Page should be replaced with the following order:

1.    To the extent that leave is required, the applicant be granted leave to amend Application WAD 6124 of 1998 in the form exhibited to the affidavit of Jacki Lynn Cole sworn 18 July 2012 marked Exhibit JLCA-1, and this document stand as the amended application.

2.    Page 2, paragraph [11]: delete this paragraph and replace with the new paragraph [11] as follows:

[11]    The applicant submits that the application may therefore be amended, in the manner proposed, as of right and without requiring the leave of the Court. It is unnecessary to decide this question. In my view, it would be appropriate, to the extent that leave is necessary, for a grant of leave to be made in order to effect the particular amendment sought.

Associate:

Dated:    14 September 2012

THE COURT ORDERS THAT:

1.    The applicant be granted leave to amend Application WAD 6124 of 1998 in the form of Exhibit JLCA-1 to the affidavit of Jacki Lynn Cole sworn 18 July 2012 and this document do stand as the amended application.

2.    Any requirement for the persons comprising the applicant to re-swear affidavits pursuant to paragraph 62(1)(a) of the Native Title Act 1993 (Cth) be waived.

3.    Service of the Amended Interlocutory Application and supporting documents on respondents other than the State of Western Australia be dispensed with.

4.    The applicant is to provide a copy of the application, as amended, to any respondent on request.

5.    There be no order as to costs.

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

REASONS FOR JUDGMENT

Background

1    I have before me an Amended Interlocutory Application seeking that this application be amended and other consequential orders.

2    The applicant has filed, in support of its application, the affidavit of Jacki Lynn Cole sworn 18 July 2012. Ms Cole is the Principal Legal Officer of the Kimberley Land Council (the KLC) and solicitor on record for the applicant.

3    The proposed amended application is Exhibit JLCA-1 to the affidavit of Jacki Lynn Cole sworn 18 July 2012 entitled “Native Title Determination Application Claimant Application - Second Amended Application” (the Second Amended Application).

4    In her affidavit, Ms Cole deposes that the purpose of the amendment is to reduce the area of land and waters covered by the application. It follows that the amendment will not result in the inclusion of any area of land or waters not covered by the original application.

5    The proposed amendment would move the eastern boundary of the claim area westward so as to effectively draw a line from Boolaman Well southward, taking into account leases that it intersects, to the northern boundary of the existing Goolarabooloo Jabirr Jabirr People’s claim (WAD 6002 of 1998).

6    The applicant submits that the reason for the amendment to the claim area is to allow a neighbouring native title claim group, being the Nyul Nyul people, to lodge an application for determination of native title over land and water including the area to the south of the existing Nyul Nyul native title determination application (WAD 68 of 2010), an area which would otherwise remain within the Djabera Djabera claim area.

7    The applicant submits that upon amendment to the Djabera Djabera application, the additional Nyul Nyul application will be filed.

Ability to amend application for determination of native title

8    Section 64 of the Native Title Act 1993 (Cth) (the Act) relevantly provides:

(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.)

. . .

(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.

9    A map showing the proposed amended external boundaries appears as “Attachment C” of the Second Amended Application and a technical description of the land and waters covered appears as “Attachment B”.

10    The applicant submits that the plain structure and meaning of the words contained in s 64 of the Act gives the applicant a statutory right to amend the claim made in the application to reduce the area of land or waters covered by the application. The applicant relies on the judgment of Allsop J in the matter of Walker v State of Queensland [2004] FCA 640 where his Honour stated, at [11]:

The subsection [s 64(1A)] is directed not to an applicant approaching the Court for permission to do anything; rather it is directed to the application which it is said by Parliament may at any time be amended in the fashion identified. This construction of the Act conforms with views expressed on other occasions by Judges of the Court. Although given that it conforms with my reading of the subsection, it does not require me to have recourse merely to comity in following what other Judges have said.

11    The applicant submits that the application may therefore be amended, in the manner proposed, as of right and without requiring the leave of the Court. In my view, it would be appropriate for a grant of leave to be made in order to effect the particular amendment sought.

12    An amendment of this nature is not one which needs to be specifically authorised by the wider native title claim group on whose behalf the application has been made: Champion v State of Western Australia [2009] FCA 1141 at [1]-[12]; Drury v Western Australia [2000] FCA 132 at [12]; Grant v Minister for Land & Water Conservation for the State of New South Wales [2003] FCA 621 at [32].

Service of interlocutory application and supporting documents on first respondent

13    The applicant seeks an order that service of the interlocutory application and supporting documents on the respondents other than the State of Western Australia be dispensed with.

14    The KLC informed the Court that, on 19 July 2012, it caused endorsed copies of the Amended Interlocutory Application dated 18 July 2012 and affidavit in support of Jacki Lynn Cole sworn 18 July 2012 to be served on the State of Western Australia by sending the same to the State Solicitor’s Office.

15    The KLC further informed the Court that, by letter dated 8 August 2012, Mr McCloskey of the State Solicitor’s Office informed the KLC that the State of Western Australia “does not oppose the making of the orders sought in [the] Interlocutory Application”.

Costs

16    Section 85A(1) of the Act states:

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

17    The KLC informed the Court that each of the following respondents has been put on notice of the filing of the interlocutory application and undertakings sought from each of them that they will neither oppose nor seek costs in relation to the proposed amendment:

•    State of Western Australia

•    Shire of Broome

•    Djulungurr Aboriginal Corporation

•    Jabirr Jabirr Land Committee

•    Traditional Owners of Beagle Bay

•    Arrow Pearl Company Pty Ltd

•    Yeeda Station Pty Ltd

•    Kurt Douglas Elezovich

•    Telstra Corporation

•    Western Australian Fishing Industry Council (Inc).

18    The KLC further informed the Court that, to date, it has not received notice from any respondent of any intention to take an active role in the determination of the interlocutory application or to seek costs and therefore submits there should be no order as to costs in this interlocutory process.

19    In the circumstances, I am satisfied that there should be orders:

(a)    allowing the application to be amended in the manner sought; and

(b)    no order as to costs.

20    I will order accordingly.

Associate:

Dated:    11 September 2012