Federal Court of Australia
Smith on behalf of the Single Noongar Claim Group v State of Western Australia [2021] FCA 252
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant be granted leave to discontinue the whole of the proceeding pursuant to r 26.12(2)(c) and r 26.12(4) of the Federal Court Rules 2011 (Cth).
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.
MCKERRACHER J:
1 The applicant, Ms Naomi Smith, applies for leave to discontinue the whole of this proceeding pursuant to r 26.12(2)(c), or r 26.12(4) of the Federal Court Rules 2011 (Cth).
2 On 26 November 2019, Ms Smith on behalf of the Single Noongar Claim Group filed an Application for Native Title Compensation in this Court (the Claim). The Claim was said to be authorised under traditional laws and customs with respect to decision making as required by s 251B(a) of the Native Title Act 1993 (Cth). It pertains to a very large area of Western Australia. The compensation sought was most substantial.
3 On or about 19 December 2019, the lead claimant in the Claim, Ms Smith, notified her solicitor, Mr David Stevenson of ESJ Law, that the Full Court of this Court (Allsop CJ, McKerracher and Mortimer JJ) had delivered judgment in McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; (2019) 374 ALR 329 that could materially impact upon the Claim because the decision confirmed the validity and registration of the Noongar Indigenous Land Use Agreements (ILUAs). On or about 21 January 2020, the State of Western Australia filed an Interlocutory Application seeking to strike out the Claim (strike out application). A primary ground for the strike out application was that compensation had been fully and finally addressed under the ILUAs, the validity of which had by then been confirmed by the Full Court’s decision in McGlade (No 2). Determination of the strike out application was then deferred pending the outcome of seven applications for special leave brought against the decision in McGlade (No 2).
4 Those applications for special leave to appeal were refused by the High Court on 26 November 2020: Yarran v South West Aboriginal Land & Sea Council Aboriginal Corporation [2020] HCATrans 202. Ms Smith now applies for discontinuance.
5 It is unnecessary to elaborate on the issues that bear upon the strike out application. It is sufficient to record that the State does not accept that Ms Smith is authorised by all those who claim to be entitled to the compensation. A detailed explanation of the purported authorisation process is set out in a supporting affidavit sworn by Mr Stevenson and filed on 3 March 2020. The State accepts that any disagreement on such matters is immaterial to consideration of the application for discontinuance.
REASON FOR DISCONTINUANCE
6 In an affidavit filed 22 February 2021, Ms Smith deposed that she has continued to follow traditional laws and customs for meeting with the Elders and members of the Noongar People to update them on the progress of the claim and obtain their approval to amend anything should it be required. On or about 24 November 2020, Ms Smith arranged for a meeting (November Meeting) to be held for the Elders and members of the Noongar People to be updated on the progress of the Claim.
7 At the November meeting, Mr Stevenson was given instructions unanimously to withdraw the Claim against the State. Mr Stevenson advised the Elders and members of the Noongar People that the prospects of success with respect to their Claim were extremely limited once the ILUAs were registered, and that a possible avenue was to seek leave of the Court to withdraw the Claim and to seek that there be no order as to costs.
8 Ms Smith says she has communicated with Elders and members of the Noongar People on Facebook and at other meetings, including the meetings called by the South West Aboriginal Land and Sea Council, to discuss the ILUAs. She says that all Elders and members of the Noongar People that she has spoken with, either in person, on the phone, by text message, or on social media have told her that they support the withdrawal of the Claim.
9 As the application is made by Ms Smith as a representative party, leave is required pursuant to r 26.12(4) of the Rules.
DISCRETION
10 The principles applicable on an application for leave to discontinue proceedings were recently canvassed by Reeves J in Bonner on behalf of the Jagera Yagara Gurrangnam v State of Queensland [2021] FCA 35. As his Honour noted (at [13]), a factor that will usually affect the exercise of the discretion in relation to native title proceedings is whether the members of the native title claim group have been consulted about the proposed discontinuance.
11 The evidence given by Ms Smith is that Elders and members of the Noongar People have been consulted about the proposed discontinuance and have indicated their support for the discontinuance of the Claim.
12 There is and has been no opposition communicated to Ms Smith in respect of the orders sought for discontinuance.
13 The State does not oppose the application for leave to discontinue, (although the State does not necessarily accept as correct all the facts relied upon by Ms Smith, but acknowledges that any difference on such matters is immaterial for present purposes). The State has not contended that it will suffer any injustice or prejudice if the proceeding is discontinued.
14 The strike out application was brought at an early stage (in practical effect) of the proceedings and before any substantive orders have been made to progress the proceeding. With approval of the Court, the parties have taken no steps until the outcome of the application for special leave to appeal was known.
15 It is undesirable for Ms Smith to be forced to continue with the litigation unwillingly, in circumstances where Ms Smith on behalf of the Single Noongar Claim Group, Elders and Noongar People has been informed that the litigation is unlikely to succeed against the State by reason of the upholding of the validity of the ILUAs and their subsequent registration. That view would appear to be sound.
16 In all circumstances leave should be granted to discontinue the Claim.
17 Ms Smith seeks that no order for costs be made in reliance on s 85A(1) of the Act. The State does not contend that an order for costs should made. It also accepts its strike out application will be vacated.
18 As noted, the State does not accept that Ms Smith is properly authorised, contrary to para 10 of Ms Smith’s Outline of Submissions dated 23 February 2021. This issue is raised in ground 1(b) of the strike out application. Nevertheless, whether or not this application has been made by a person who was authorised by the native title claim group, having regard to s 84D(4) of the Act, if applicable, and s 37M of the Federal Court of Australia Act 1976 (Cth), it is appropriate for the Court to make the orders sought by Ms Smith.
19 The orders will be:
(1) The applicant be granted leave to discontinue the whole of the proceeding pursuant to r 26.12(2)(c) and r 26.12(4) of the Rules.
(2) There be no order as to costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. |
Associate:
