Federal Court of Australia

CD (deceased) v State of Western Australia [2021] FCA 734

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 84(8) of the Native Title Act 1993 (Cth), the Fourth Respondent, Ms Bella Bropho, be removed as a party to this proceeding.

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

MCKERRACHER J:

INTRODUCTION

1    By this interlocutory application dated 28 May 2021, the first respondent (the State) seeks an order pursuant to s 84(8) of the Native Title Act 1993 (Cth) (NTA) that the fourth respondent, Ms Bella Bropho, cease to be a party to these proceedings.

2    An affidavit of Mr Daniel Michael Gorman, affirmed on 28 May 2021 (the Gorman Affidavit) is filed in support of the interlocutory application. The affidavit sets out the grounds of the application together with the relevant facts and circumstances relied upon by the State.

3    Orders were made on 13 April 2021 (13 April Orders) which, among other things, provided a respondent who is the subject of an application for removal the opportunity to file evidence and written submissions in response to the application. In this case, Ms Bropho was permitted until 14 June 2021 (being 17 days after the State’s materials were filed) to file any evidence or submissions. On 21 June 2021, having not received any materials from Ms Bropho, the Court was advised that Ms Bropho did not intend to file any documents in response to the State’s application.

4    For the reasons that follow, it is appropriate that Ms Bropho cease to be a party.

BACKGROUND

5    In the 13 April Orders, the Court ordered, inter alia, that:

1.    Each respondent to the proceeding (other than the State of Western Australia and South West Aboriginal Land & Sea Council) must confirm its intention to remain a party to the proceedings by completing a Notice of Address for Service, including an email address (where available), and filing it with or returning it to the Western Australian District Registry of the Court by 14 May 2021.

2.    Parties who fail to comply with Order 1 shall cease to be parties to the proceedings.

…

6    On 11 May 2021, Ms Bropho filed a Notice of Address for Service, including an email address. Accordingly, Ms Bropho remains a respondent party to these proceedings.

7    The native title claim the subject of these proceedings was lodged on behalf of the Whadjuk People on 23 June 2011. Ms Bropho was originally joined as a respondent by orders dated 5 July 2012.

8    Since 2009, the State and other parties, including Noongar/Nyoongar/Nyungar/Nyoongah people who are members of the Whadjuk People, have engaged in negotiations resulting in the entry into and registration of six indigenous land use agreements (ILUAs) with the aim of fully and finally resolving current and future native title claims over the South West of Western Australia (an area of over 200,000 square kilometres) (the Settlement Area). This includes any and all compensation liabilities arising from those claims, including the claim the subject of these proceedings, in exchange for a comprehensive package of benefits known as the South West Settlement.

9    As explained in the Gorman Affidavit, one of the six ILUAs, WI2017/015, completely covers the area claimed in this proceeding.

10    On 28 January 2021, Conclusive Registration of all six ILUAs on the Register of Indigenous Land Use Agreements established and maintained under Pt 8A of the NTA (the Register) was achieved. Under s 24EA(l)(b) of the NTA, when the details of an agreement are entered on the Register, an ILUA has effect as if it were a contract among the parties to the agreement, and all other persons holding native title in relation to any of the land or waters in the area covered by the agreement are also bound by the agreement in the same way as the native title group: Kelly (on behalf of Byron Bay Bundjalung People) v NSW Aboriginal Land Council [2001] FCA 1479 per Branson J (at [19]); Johnson v Native Title Registrar [2014] FCA 142 per Rangiah J (at [31]); Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; (2015) 235 FCR 40 per Barker J (at [48).

11    Pursuant to cl 6.2 of each of the ILUAs, all native title rights and interests in relation to an agreement area are deemed to be surrendered to the State on a date that is 30 business days after the Settlement Effective Date (the Native Title Resolution Date). The Native Title Resolution Date is 13 April 2021. In order to finalise the determination of native title within the Settlement Area, under cl 6.3 of each ILUA the parties to the six ILUAs have agreed to consent to orders for the making of consent determinations that native title does not exist in relation to the Settlement Area.

12    The representatives of the applicant in these proceedings and all the applicants in the other Noongar claims now covered by the ILUAs, have indicated that they are prepared to consent to dismissal of those claims, this is with the exception of the applicant in WAD 24 of 2011, the Swan River People #2 Claim. On 30 April 2021, the State applied to strike out/summarily dismiss the Swan River People #2 Claim. Ms Bropho is a member of both the Swan River People # 2 claim group and the Whadjuk People claim group.

13    So as to facilitate the process of executing consent orders for the finalisation of the Noongar claims (other than the Swan River People # 2 Claim), the 13 April Orders provided for the rationalisation of the numerous respondents to each proceeding by requiring any respondent who wished to remain as such to take the positive step of filing a Form 10 Notice of Address for Service by 14 May 2021.

14    On 11 May 2021, Ms Bropho filed a Form 10 but as noted, has taken no steps in response to the State’s subsequent application for her removal as a party.

15    On 26 May 2021, the State wrote to Ms Bropho at her email address for service requesting her to confirm whether as a respondent party she was prepared to consent to orders for the dismissal of this proceeding or to withdraw as a respondent. As at 28 May 2021, when the State filed the Gorman Affidavit and its submissions, no response had been received from Ms Bropho.

LEGAL PRINCIPLES

16    Section 84(8) of the NTA provides that:

84    Parties

   …

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.

17    Section 84(9) provides particular circumstances where dismissal is to be considered by the Court if those circumstances are made out, however, the power given under s 84(8) is not constrained by the circumstances referred to in s 84(9) as that sub-section is not exhaustive of the circumstances where the removal power can be exercised: Butterworth v Queensland [2010] FCA 325; (2010) 184 FCR 397 per Logan J (at [39]).

18    The State does not rely upon s 84(9) but rather contends that the general power in s 84(8) should be exercised in the Court’s discretion. In considering the exercise of the discretion, the State submits that the Court may have regard to the considerations identified as relevant by Gilmour J in Watson v Western Australia (No 5) [2014] FCA 650 (at [10]) which can be summarised as follows:

(a)    the legislative purpose behind the NTA which is to encourage parties to resolve native title claims by conciliation and negotiation;

(b)    the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth) and the overarching purpose mandate the just determination of proceedings before the Court in the most inexpensive and efficient way possible;

(c)    the proximity of the parties to reaching a negotiated, non-litigated settlement and consent determination; and

(d)    the additional time, money and other resources (including scarce judicial resources) which will need to be expended before a final outcome can be reached if removal of the party is not ordered.

19    The considerations relevant to joinder under s 84(5) are also relevant to an order made under s 84(8) that a person cease to be a patty: Starkey v South Australia [2011] FCA 456; (2011) 193 FCR 450 per Mansfield J (at [48]). These considerations include:

(a)    the probable delay in, if not significant impediment to negotiating an agreed outcome to the claim;

(b)    whether the party’s interests are already adequately addressed by the claim group.

CONSIDERATION

20    Ms Bropho has indicated that she intends to remain a respondent in these proceedings, and despite a request from the State, has not indicated that as a respondent party, she would consent to a dismissal of this application or withdrawal as a respondent from this application. However, she has also indicated that she does not intend to oppose or be heard on the State’s application for her removal.

21    The failure of Ms Bropho to consent to the dismissal of this claim will result in significant delay in not only the resolution of these proceedings but also the implementation of the South West Settlement.

22    The parties, in particular the State and the applicant, have already spent significant time, money and other resources in order to reach a resolution. Further time, money and resources will need to be spent by the parties if Ms Bropho remains a respondent to these proceedings and does not consent to the dismissal of the claim.

23    Significantly as well, Ms Bropho, and all of the Swan River People #2 group members, are included within the Whadjuk People claim group and the Whadjuk People ILUA native title agreement group. Ms Bropho’s interests in these proceedings are therefore adequately addressed by the applicant.

24    There is no evidence as to why Ms Bropho’s interests should be treated any differently from the interests of all the other members of the Whadjuk People claim group. Even if there were such evidence, Ms Bropho would need to demonstrate that it is in the interests of justice that she remain as a respondent party: Parkin on behalf of the Quandamooka People v State of Queensland [2020] FCR 1132.

25    Accordingly, having regard to and applying the discretionary factors identified in Watson and Starkey, it is appropriate that the Court exercise its power under s 84(8) to order that Ms Bropho cease to be a party to these proceedings.

CONCLUSION

26    Orders will be made in terms of the State’s interlocutory application dated 28 May 2021, including that there be no order as to the costs of the application.

Associate:

Dated:    1 July 2021