FEDERAL COURT OF AUSTRALIA

Wilson v State of South Australia [2017] FCA 219

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for an extension of time in which to appeal and an application for leave to appeal against an order made by White J under s 66B(1) of the Native Title Act 1993 (Cth) (NT Act). The judgment sought to be appealed against is, in part, to the effect that the applicant in the underlying proceedings comprised of six persons be replaced by an applicant comprised of seven different persons: Wilson v State of South Australia (No 2) [2016] FCA 812.

2    One of the six persons comprising the replaced applicant was Ms Neva Wilson. Ms Wilson died on 25 June 2016, that is, before the judgment sought to be appealed against was delivered.

3    This application has been commenced by Ms Wilson’s son. He is named on the application as “Paul K Wilson (Agent for) Neva L Wilson”.

4    For the reasons given below, I am not satisfied that Mr Wilson has standing to commence the proposed appeal, nor that he is otherwise authorised to prosecute the proposed appeal, whether in his capacity as his mother’s agent or otherwise. Accordingly, the application for leave to appeal and the application for an extension of time to appeal should be dismissed.

TWO PRELIMINARY ISSUES

5    The proposed appeal is against an interlocutory judgment. The leave of the Court is required to commence such an appeal: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24(1A). The principles guiding the exercise of the discretion to grant leave are well settled: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Consistent with those principles, leave to appeal ought not be granted in respect of an appeal that has no reasonable prospects of success.

6    Rule 35.13 of the Federal Court Rules 2011 (Cth) (Rules) required that the application for leave to appeal be filed within 14 days after the date on which the relevant judgment was pronounced or the order was made. That date expired on 29 July 2016. Mr Wilson filed this application on 7 November 2016.

7    I have before me Mr Wilson’s affidavit sworn on 4 November 2016 in which he gives reasons for the delay in commencing the appeal and asserts that he is the “agent” for Ms Wilson and authorised in that capacity, to make the present applications on her behalf.

8    The Court has a discretion under r 35.14 to grant an extension of time in which to make the application. The principles guiding the exercise of that discretion are also well settled: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349 and Singh v Minister for Immigration and Citizenship [2013] FCA 813 at [15] – [17]. Again, consistent with those principles, an extension of time in which to commence an appeal ought not be granted in respect of an appeal that has no reasonable prospects of success.

9    An appeal will have no reasonable prospects of success if it is liable to be dismissed as incompetent or by reason of the person named as the appellant having no standing to commence and prosecute it.

10    On 14 December 2016, I made an order to the effect that a preliminary question concerning Mr Wilson’s standing was to be heard and determined as a separate issue on the application. The parties to the application were given an opportunity to file affidavit material and written submissions in relation to that discrete question. Mr Wilson filed no submissions and no further affidavit material.

11    On 31 January 2017, I advised the parties that the Court would, at the hearing concerning Mr Wilson’s standing, also consider the potential application of s 24(1AA)(b)(i) of the FCA Act insofar as it might affect the competency of the proposed appeal.

12    The competency question and the standing question were heard together. These reasons are confined to those questions and do not otherwise address the underlying prospects of the proposed grounds of appeal.

competency

13    The NT Act does not, of itself, confer a right of appeal against a decision made pursuant to s 66B. The only source of an appeal right relied upon by Mr Wilson is that conferred by s 24(1)(a) of the FCA Act. It provides:

24    Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

14    An appeal from an interlocutory judgment cannot be brought except with the leave of the Court: s 24(1A). There are, however, some interlocutory judgments from which no right of appeal lies at all.

15    Section 24(1AA) of the FCA Act relevantly provides:

(1AA)    An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is:

…

(b)    a decision to do, or not to do, any of the following:

(i)    join or remove a party;

…

16    This provision was introduced by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). It came into force on 1 January 2010 and included, from the outset, a prohibition on appeals against a decision to remove a party. Prior to its enactment, an appeal lay (subject to a grant of leave) from a decision to replace a native title determination applicant pursuant to s 66B of the NT Act: see, for example, Foster v Que Noy [2008] FCAFC 56.

17    In Roe on behalf of the Goolarabooloo and Jabirr Jabirr Peoples v State of Western Australia [2011] FCA 421 (Roe), Siopis J heard and determined an application for leave to appeal from a judgment being a decision to replace an applicant pursuant to s 66B of the NT Act. His Honour did not refer in his judgment to s 24(1AA) which, at the time of the commencement of those proceedings, had only recently been introduced. The operation of s 24(1AA) was neither considered nor determined in Roe. It does not appear that the question has been previously determined by this Court. As the operation of s 24(1AA) potentially bears on the competency of the present applications (and, for that matter, the proposed appeal) it is appropriate that I determine the question.

18    The orders sought to be appealed against (the Orders) are expressed in the following terms:

1.    On the interlocutory application filed on 18 March 2016, Caroline Wilson, Elizabeth Pool, Kenneth Wilson, Cindy Morrison, Neville Miller, Vernon Miller and Barry Dean Johncock Senior jointly replace Mr H Ernest Cox (deceased), Mr A Wilson (deceased), Mr L Royden Miller (deceased), Mr W Maurice Miller (deceased), Mr R John Ware (deceased) and Ms Neva Wilson (deceased) as the applicants in this proceeding.

2.    The heading of the claimant application be amended so as hereafter to reflect the names of the Replacement Applicants.

3.    The interlocutory applications filed by Ms Wilson on 8 March 2016, 10 May 2016 and 23 June 2016 be dismissed.

19    Two questions arise. First, how is the phrase “remove a party” in s 24(1AA)(b)(i) of the FCA Act to be interpreted? Second, did White J, in making the Orders, “join or remove a party” within the meaning of that phrase, properly construed?

Meaning of s 24(1AA)(b)(i)

20    The meaning of the phrase “join or remove a party” in s 24(1AA)(b)(i) is to be discerned from its context, having regard to the text and structure of the provision and the purpose of the FCA Act as a whole.

21    The word “party” is not defined in the FCA Act except in the context of indictable primary proceedings (which are not presently relevant): see s 4 of the FCA Act.

22    Section 20(5)(a) of the FCA Act expressly provides that in the exercise of the Court’s original jurisdiction, a single judge may “join or remove a party”. An equivalent express power is conferred in respect of the Court’s appellant jurisdiction: see s 25(2B)(a). Consistent with the policy underlying s 24(1AA)(b)(i), no appeal lies to the High Court from a decision of a single Judge or the Full Court to “join or remove a party” in the exercise of the Court’s appellate jurisdiction: s 33(4B)(b)(i).

23    The word “party” also appears in Part IVA of the FCA Act, which establishes a regime for the commencement, conduct and determination of representative proceedings. For the purposes of Part IVA, a “representative party” is defined to mean a person who commences a representative proceeding under s 33C. Section 33C(1) provides:

33C    Commencement of proceeding

(1)    Subject to this Part, where:

(a)    7 or more persons have claims against the same person; and

(b)    the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

24    A person who commences a representative proceeding does so “on behalf” of the other persons referred to in s 33C (defined as group members): see s 33A. The representative party may continue that proceeding even if the person subsequently ceases to have a claim against the respondent: s 33D(2). The relief granted in a representative proceeding is to the benefit of the group members, not to the benefit of the representative party in that capacity: see, for example, s 33Z(1)(e).

25    Section 33T is titled “Adequacy of representation”. It relevantly provides:

If, on an application by a group member, it appears to the Court that a representative party is not able adequately to represent the interests of the group members, the Court may substitute another group member as representative party and may make such other orders as it thinks fit.

26    A representative party who is removed and substituted in the exercise of that power does not, by reason of the removal, cease to be a group member and may, notwithstanding the removal, ultimately become the recipient of an award of damages under s 33Z(1)(e). The substitution of the representative party does not affect the legal interests of the other group members in the outcome of the proceedings. In exercising the power under s 33T the Court is not required to make any assessment as to whether there exist any rights and liabilities as between the representative party and the respondents of the kind that would ordinarily be made on an application to remove a party under, for example, s 20(5)(a) of the FCA Act or r 9.08 of the Rules: see, for example News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410. Rather, the purpose of the power conferred by s 33T is to ensure that the interests of those persons whose legal interests will be affected by the outcome of the action are adequately represented by the representative party.

27    Section 33ZG(c)(iii) provides that nothing otherwise provided by Part IVA affects the operation of any law “relating to … joinder of parties”. That provision suggests a legal distinction between the joinder or removal of a party and the substitution of a person who commences a proceeding as a representative of an underlying claim group.

28    In light of the provisions to which I have referred, the reference in s 24(1AA)(b)(i) to a “decision to … join or remove a party” should not be construed so as to encompass a decision to substitute a “representative party” made in the exercise of the power conferred by s 33T of the FCA Act or other decisions having the same purpose and effect. The sources of the power to remove a party and the power to substitute a representative party are distinct, the purposes of the powers are distinct and, most importantly, the legal effects of the exercise of the powers are distinct. The phrase, considered in context, should be construed as a reference to decisions made in the exercise of powers conferred by s 20(5)(b) of the FCA Act or such other power (whatever the source) having the same purpose and legal effect. Decisions to join or remove parties under r 9.05 or r 9.08 of the Rules are obvious examples.

29    The decision sought to be appealed against did not involve the exercise of the power conferred under s 33T of the FCA Act nor the power conferred under s 20(5)(b) of the FCA Act or the Rules. The power exercised was that conferred by s 66B of the NT Act. For the reasons that follow, I consider decisions made pursuant to s 66B(1) of the NT Act to be analogous to decisions made pursuant to s 33T of the FCA Act so as to fall outside of the operation of s 24(1AA)(b)(i).

The legal effect of Justice White’s Orders

30    Although White J’s Orders had the effect that Ms Wilson was no longer an “applicant” in the native title proceedings, the word “applicant” has a particular meaning under the NT Act which is not necessarily equivalent in meaning to the word “party” in s 24(1AA)(b)(i) of the FCA Act. Indeed, it should not be assumed the word “party” bears the same meaning in both enactments.

31    The underlying action is a native title determination application within the meaning of s 61(1) of the NT Act. More specifically, it is an application for a determination of native title in relation to an area for which there is no approved determination: s 13(1). The persons who may make a native title determination application are defined in Item 1 of a table set out in s 61(1) of the NT Act as follows:

a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group…

32    The manner in which a native title claim group may authorise “a person or persons” to make a native title determination application is regulated by s 251B of the NT Act. Section 61(2) of the NT Act relevantly provides:

Applicant in case of applications authorised by claim groups

(2)    In the case of:

(a)    a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

…

the following apply:

(c)    the person is, or the persons are jointly, the applicant; and

(d)    none of the other members of the native title claim group … is the applicant.

33    Such an applicant may deal with all matters arising under the NT Act in relation to the claimant application: s 62A.

34    Section 66B(1) of the NT Act confers power on this Court to replace “a current applicant”. It relevantly provides:

Application to replace applicant in claimant application

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

. . .

(ii)    the person has died or become incapacitated;

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

. . .

Court order

(2)    The Court may make the order if it is satisfied that the grounds are established.

35    Section 84(2) of the NT Act provides that the applicant “is a party” to proceedings to which s 61 applies. Section 84(3) makes provision for certain other persons to become parties to such proceedings upon an application to the Court. There is no suggestion that Ms Wilson made an application of the kind contemplated by s 84(3).

36    The NT Act also contains a defined term “native title party”: see s 29 and s 30 and the reasons of the Full Court in FQM Australia Nickel Pty Ltd v Bullen (2011) 191 FCR 261. However, the term “native title party” does not designate the persons who are parties to a proceeding commenced under s 61. That work is done by s 61(2) and s 84.

37    The effect of s 84(2) is to make the “applicant” a “party” to proceedings under and for the purposes of construing and applying the NT Act. However, it does not necessarily follow that a decision under s 66B of the NT Act to substitute the applicant equates to a decision to remove a party for the purposes of s 24(1AA)(b)(i) of the FCA Act. Consistent with what I have said above, whether or not the decision is one to remove a party depends on the legal effect of the decision.

38    Subsections 84(5), (5A), (8) and (9) are also important. They provide:

(5)    the Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

Persons wanting to exercise public right of access or use

(5A)    If:

(a)    a person wants to become a party to the proceedings; and

(b)    the Federal Court is satisfied that the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application;

the Court:

(c)    may make appropriate orders to ensure that the person’s interests are properly represented in the proceedings; but

(d)     need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use.

. . .

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

39    Those provisions reflect a distinction to be drawn between the substitution of an application pursuant to s 66B of the NT Act and the removal of a person as a party to a proceeding. The powers conferred under s 84(5) and s 84(8) are akin to those conferred by s 20(5)(a) of the FCA Act. However, the power conferred under s 66B of the NT Act is more akin to that conferred under s 33T of the FCA Act: Ankamunthi People v Queensland (2002) 121 FCR 68 at [7] (Drummond J); Gomeroi People v Attorney-General (NSW) (2016) 241 FCR 301 (Barker J at [110], Reeves J agreeing at [1]).

40    The purpose of the exercise of the power in the present case was to provide for the adequate representation of the interests of the Wirangu people in the proceedings. As with the power under s 33T of the FCA Act the power, by its nature, does not involve an assessment of whether the representative is a “desirable or necessary party” of the kind that would be made on an application to “join or remove a party” within the meaning of that phrase as I have construed it. Rather, the purpose of the power is to give effect to the claim group’s authorisation of one or more persons to continue the application on their behalf. As Gilmore J said in Roe v State of Western Australia (No 2) [2011] FCA 102 at [12]:

In Daniel v Western Australia (2002) 194 ALR 278 at [16], French J (as his Honour then was) observed that s 66B is a facultative provision directed to maintaining the ultimate authority of the native title claim group. Where a group seeks to remove an applicant for not being authorised, the Court is not concerned with the wisdom or merits of the group’s decision, but simply whether the correct procedure in relation to authorisation has been followed: PC (name withheld for cultural reasons) on behalf or the Njamal People v Western Australia [2007] FCA 1054 (Njamal People v Western Australia) at [39].

41    Accordingly, the decision of White J is not one to “join or remove a party” within the meaning of s 24(1AA)(b)(i) as I have construed it. Section 24(1AA)(b)(i) does not preclude an appeal from such a decision.

42    I have not overlooked previous authorities of this Court in which orders made pursuant to s 66B of the NT Act appear to have been conceptualised as equivalent to orders to join or remove a party under r 9.05 or r 9.08 of the Rules and their predecessors: Sambo v Western Australia (2008) 172 FCR 271 (Siopis J), Butchulla People v Queensland (2006) 154 FCR 233 (Kiefel J), Chapman v Queensland (2007) 159 FCR 507 (Kiefel J), Lennon v South Australia (2010) 217 FCR 438 (Mansfield J). The application of s 24(1AA)(b)(i) of the FCA Act did not fall for consideration in those cases and therefore no occasion arose to determine whether the powers under s 66B were equivalent in their purpose and effect to powers conferred under the rules relating to joinder.

43    I should emphasise that my conclusions concerning the construction and application of s 24(1AA)(b)(i) of the FCA Act in the present case should not be understood as extending to other provisions of the FCA Act or the Rules in which the word “party” appears. Whether an “applicant” under the NT Act is to be regarded as a “party” within the meaning of other provisions of the FCA Act or the Rules must depend in each case on the legal context in which the word is used.

STANDING

44    Mr Wilson claims to have standing to bring these applications by virtue of his status as his mother’s agent. In addition to the relief I have already mentioned he seeks orders on the proposed appeal in the following terms (original numbering, spelling and grammar retained):

(3)    That the interlocutory applications filed by Ms Wilson on 8 March 2016, and 10 May 2016, should not be dismissed;

(4)    That interlocutory application filed by Ms Wilson 23 June 2016, be heard as a seperate issue;

. . .

6)    That Mr Paul Wilson is still an agent appointed By Ms Wilson on 26 May 2016, as well as agent for the other deceased of the Wirangu No 2 Native Title Claim;

(7)    That the issue of SANTS, along with other Legal Representative Respondent applicants, being divided to represent individual respondent applicants, within the Wirangu no 2 Native Title Claim, be addressed by way of appeal, in the Federal Court of South Australia.

45    In order to determine the question of Mr Wilson’s standing to commence the proposed appeal and to make the present applications, it is necessary to traverse some of the history of the proceedings before White J.

46    His Honour had before him a number of interlocutory applications. The relevant applications are referred to at [5], [6] and [99] of his reasons as follows:

5    The first interlocutory application in time is that filed by Ms Wilson on 8 March 2016. By this application, in which SANTS was the sole named respondent, Ms Wilson sought orders impugning the validity of a meeting held at Ceduna on 12 February 2016 at which a resolution that she be replaced as the applicant was passed as well orders, in effect, that she continues to be the applicant.

6    The second interlocutory application was filed by SANTS on 18 March 2016. By this application, made pursuant to s 66B of the NT Act, the Replacement Applicants sought an order that the current applicants (then Ms Wilson and the five deceased co-applicants) are no longer authorised by the native title holder group to proceed, and to deal, with the application for native title and an order that they replace the Original Applicants as the applicants in the proceedings.

. . .

99    Finally, I refer to the interlocutory application filed on 23 June 2016. By that application, Ms Wilson sought the striking out of another application for determination of native title, namely, the Far West Sea claim made in Action SAD 71/2016, as well as consequential orders. An interlocutory application in the present proceedings is not the appropriate vehicle for the impugning of the claim made in SAD 71/2016. That application should be dismissed.

47    The last of those applications may be put aside for the time being. I will return to it later in these reasons.

48    At the time of the filing of the interlocutory applications, all but one of the six persons comprising the original applicant had died. Ms Wilson was the sole survivor. Upon Ms Wilson’s death, none of the persons originally authorised to make the native title determination were living.

49    The hearing before White J commenced on 21 April 2016 and was then adjourned to 27 June 2016. The second of those hearings, and the delivery of judgment, both occurred after Ms Wilson’s death. In relation to the second hearing, White J said that Mr Wilson had, on that occasion, “again sought leave to appear on behalf of his mother”. His Honour said (at [19]):

As was the case at the hearing on 21 April 2016, Mr Wilson did not provide a proper basis upon which the Court could grant him leave to represent his mother. He had not, for example, deposed to any attempts to obtain legal representation, or an inability to do so. Mr Wilson sought to rely on the Notice of Appointment of an Agent to which I referred earlier. By that Notice, Ms Wilson purported to appoint her son as her agent in these proceedings, and he indicated his acceptance of that appointment. The document indicates on its face that the appointment was made pursuant to s 84B(1) of the NT Act. This appointment did not assist Mr Wilson, for two reasons. First, s 84B(1) permits a party to a proceeding to appoint ‘a society, organisation, association or other body’ to act as agent on behalf of the party in relation to the proceeding. Plainly enough, Mr Wilson, as an individual, does not satisfy the description of ‘a society, organisation, association or other body’. Secondly, and in any event, s 84B(1) is not concerned with rights of audience before this Court. That subject matter is addressed in s 85 of the NT Act.

50    Mr Wilson relies upon the same Notice of Appointment for the purposes of this application.

51    I agree with the observations of White J that s 84B permits only the appointment of a “society, organisation, association or other body” to act as agent of the party in relation to the proceeding. Section 84B of the NT Act does not assist Mr Wilson to establish his standing to commence the proposed appeal.

52    In its written submissions, the first respondent (State of South Australia) contended:

Furthermore, the scheme of the NTA itself supports the conclusion that s 84B does not provide legislative authority for Ms Wilson to appoint her son as agent, with the effect that he is then able to exercise all of the powers of the applicant under the NTA. There is ample authority as to the central importance to the conduct of native title determination applications that those who purport to bring them and to exercise, on behalf of the native title claim group, the rights and responsibilities associated with such applications, have the authority of their group to do so. For s 84B to be construed as suggested by Mr Wilson would circumvent the legislative intent underpinning the NTA.

(footnotes omitted)

53    I accept that submission.

54    But there is a more fundamental issue affecting Mr Wilson’s standing. As I have mentioned, Ms Wilson died on 25 June 2016. Even if there was previously an agency agreement between Ms Wilson and her son, the relationship of principal and agent could not survive the death of Ms Wilson as principal, unless his appointment was expressly stated to continue irrespective of death or was otherwise irrevocable: see, for example Campanari v Woodburn (1854) 15 CB 400; 139 ER 480 and Smith v Woods [2014] VSC 646. I am not satisfied on the evidence before me that the scope of any authority conferred upon Mr Wilson includes the authority to exercise any right of appeal that might otherwise fall to be exercised at a time after Ms Wilson’s death.

55    As I have mentioned, I afforded Mr Wilson the opportunity to file any further affidavit evidence upon which he might rely in support of his contention that he had standing to file and prosecute the present applications and the proposed appeal (again assuming the appeal to be competent and assuming an extension of time and leave to commence the appeal were granted). He did not avail himself of the opportunity prior to the hearing.

56    A grant of letters of representation to a personal representative is essential before that person has standing to commence an action in that capacity: Ryan v Davies Brothers Limited (1921) 29 CLR 527; Byers v Overton Investments Pty Ltd (2001) 109 FCR 554. At the hearing of the preliminary issues, Mr Wilson tendered a certified copy of Ms Wilson’s will. It shows that he was not appointed as executor of the will or as trustee of Ms Wilson’s deceased estate.

57    Mr Wilson nonetheless relied on cl 3(c) of the will. It states:

My papers relating to Aboriginal issues can be taken by whichever of my family members who deem them helpful to them otherwise they are to remain in the family home.

58    It was submitted that this clause had the effect of authorising Mr Wilson to commence the proposed appeal on Ms Wilson’s behalf. I reject the submission. Assuming it to be a valid testamentary disposition, cl 3(c) does nothing more than to provide for the possession or perhaps the ownership of documents.

59    Assuming that Mr Wilson is a member of the relevant native title claim group, that circumstance alone would not be sufficient to found standing on the present applications: Far West Coast Native Title Claim v South Australia (2012) 204 FCR 542 (Mansfield J); Far West Coast Native Title Claim v State of South Australia (No 6) [2013] FCA 1270 (Mansfield J).

60    I should note that even if the evidence established that Mr Wilson is the executor or administrator of Ms Wilson’s deceased estate, it is doubtful that any statutory right to apply for leave to appeal (and to appeal) against a decision made pursuant to s 66B of the NT Act is transmissible upon the death of the person previously vested with the right: see Bullen v State of Western Australia [2010] FCA 900 at [60]; Kalejs v Minister for Justice and Customs (2001) 111 FCR 442. That issue would appear to affect the competency of the proposed appeal but it is not necessary to decide the point because Mr Wilson does not have standing in any event.

61    Finally, I have not overlooked the circumstance that the interlocutory application filed by Ms Wilson two days before her death was an application unrelated to the status of Ms Wilson as a person authorised to make the native title determination application in the underlying proceedings. That interlocutory application was dismissed on the basis that the underlying proceedings were not the appropriate vehicle in which such an application should be made. Even if there might otherwise have existed a right in Ms Wilson to make an application for leave to appeal against the dismissal of that application notwithstanding her death prior to White J’s judgment, Mr Wilson has not demonstrated that he is authorised to exercise such a right whether on Ms Wilson’s behalf or in his own name.

62    Accordingly, the two applications before me should be dismissed.

63    I will hear the parties as to costs.

Associate:

Dated:    9 March 2017