FEDERAL COURT OF AUSTRALIA

Ashwin on behalf of the Wutha People v State of Western Australia (No 3) [2016] FCA 606

ORDERS

THE COURT ORDERS THAT:

1.    Mr Richard Evans cease to be a respondent in this matter.

2.    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

BARKER J:

1    On 25 May 2016, the Court, on its own motion, made orders removing Mr Richard Guy Evans as a party to the proceedings under s 84(8) of the Native Title Act 1993 (Cth) (NTA). These are my reasons for so ordering.

2    At a case management conference on 21 December 2015, the Court raised with counsel for Mr Evans – who was then a respondent – the question of whether Mr Evans ought to be removed as a party to the proceedings and indicated that the Court would seek a report as to whether such an order should be made.

3    On 9 February 2016, the Court ordered that by 29 April 2016, the indigenous respondent Mr Evans file submissions outlining his interest in the proceedings.

4    On 28 April 2016, the Goldfields Land and Sea Council, the solicitors for Mr Evans, wrote to the Court advising that while instructions were sought from Mr Evans, it did not have instructions to file submissions or other material on Mr Evans’ behalf.

5    By orders made 3 May 2016, the Court, on its own motion, listed the issue of whether Mr Evans should cease to be a party to the proceedings pursuant to s 84(8) of the NTA for interlocutory hearing on 25 May 2016. Mr Evans was required to file any submissions or affidavit material sought to be relied upon for the hearing by 17 May 2016; any party seeking to participate in the hearing had to do so by 20 May 2016. The State of Western Australia was the only party to file submissions; no further affidavit material was relied upon.

6    Counsel for Mr Evans did not actively take part in the interlocutory hearing on 25 May 2016, save as to make a submission that there be no order as to costs. No other parties sought to make oral submissions. The State’s written submissions recognised that there was no reason why Mr Evans should not cease to be a party.

7    The orders to remove Mr Evans as a party to the proceedings rely on s 84(8) of the NTA, which provides that the Court “may at any time order that a person, other than an applicant, cease to be a party to the proceedings”.

8    Section 84(9) requires the Court to consider the making of an order under subs (8) in the circumstances it identifies. Relevantly, s 84(9)(b) requires the Court to consider the making of an order under subs (8) if the Court is satisfied that a person who is a party to the proceedings “never had, or no longer has, interests that may be affected by a determination in the proceedings”.

9    The power under s 84(8) is nonetheless not constrained by the particular circumstances which may give rise to a dismissal under subs (9); the Court may exercise its discretion to dismiss a respondent party even if the circumstances set out in subs (9) do not exist. See Butterworth and Others v Queensland (2010) 184 FCR 397 at [39]; [2010] FCA 325. Accordingly, subs (8) confers a broad discretion upon the Court to order that a respondent should cease to be a party to the proceedings. This discretion must be exercised having regard to the circumstances of each case and must take into account the objects and purposes of the NTA more generally. See Lander v State of South Australia [2016] FCA 307 at [25].

10    As noted above, Mr Evans did not seize the opportunity to indicate to the Court his interest in the proceedings. Further, there was no evidence before the Court that Mr Evans had an interest that may be affected by a determination in the proceedings or that the interests of justice would otherwise be served by Mr Evans remaining as a respondent.

11    In those circumstances, the Court considered an order removing Mr Evans as a party to the proceedings under s 84(8) of the NTA to be appropriate.

12    The Court further considered it appropriate that there be no order as to costs; a conclusion supported by Mr Evans’ counsel and not contested by any other party.

Associate:

Dated:    27 May 2016