Federal Court of Australia

Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869

ORDERS

THE COURT ORDERS THAT:

1.    The orders dated 19 October 2017 in proceeding WAD 28 of 2019 are amended as follows:

Schedule 5 of the Part A Determination that is Attachment A to the orders is amended by:

(a)    deleting the text “(xxxvi)” and moving the subsequent paragraph toward the margin so that it is situated beneath the roman numerals above it;

(b)    inserting after paragraph (a)(xxxv) the following:

“(xxxvi) Polly (mother of Paddy Donnelly);

(xxxvii) Angelina (mother of Alice Darby);

(xxxviii) Topsy (mother of Mary Wheelock).”

2.    The orders dated 23 April 2018 in proceedings WAD 28 of 2019 and WAD 382 of 2017 are amended as follows:

Schedule 6 of the Part B Determination that is Attachment A to the orders is amended by inserting after paragraph (a)(35) the following:

“36. Polly (mother of Paddy Donnelly);

37. Angelina (mother of Alice Darby);

38. Topsy (mother of Mary Wheelock).”

3.    The orders dated 7 December 2018 in proceedings WAD 44 of 2018 and WAD 157 of 2018 are amended as follows:

Schedule 6 of the Part C Determination that is Attachment A to the orders is amended by inserting after paragraph (a)(35) the following:

“36. Polly (mother of Paddy Donnelly);

37. Angelina (mother of Alice Darby);

38. Topsy (mother of Mary Wheelock).”

4.    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

GRIFFITHS J:

Introduction

1    By an interlocutory application filed on 18 June 2021, the applicants in four proceedings seek orders to amend the determinations of native title made by orders of the Court on 19 October 2017 (Part A Orders), 23 April 2018 (Part B Orders), and 7 December 2018 (Part C Orders). The orders sought by the applicants will also affect the Court’s consideration of whether or not to make two further determinations of native title by consent in the Wajarri Yamatji proceedings, known as Part D and E respectively. The amendments sought are to:

(a)    add reference to certain apical ancestors in each determination so as to alter (and enlarge) the description of Wajarri Yamatji native title holders, uniformly in the determinations; and

(b)    correct a clerical error, or slip, in the description of native title holders in the determination annexed to the Part A Orders.

2    The Part A, B and C orders are explained in I.S. (deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215; Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545 and Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945 respectively.

3    The applicants rely upon an affidavit affirmed on 18 June 2021 by Pauline Gartlan. Ms Gartlan describes at some length the various claim group meetings held between the period 4 May 2019 and 30 May 2021 in which resolutions were passed relating to the proposed amendments. The affidavit also explains why the relevant three apical ancestors were not previously included. I accept that evidence.

4    For the following reasons, the amendments will be made.

Background

5    There are eight extant native title determination applications made on behalf of Wajarri Yamatji, being Federal Court proceedings WAD28/2019, WAD382/2017, WAD32/2018, WAD44/2018, WAD157/2018, WAD373/2018, WAD611/2018 and WAD278/2018.

6    The Part A Orders were made in the WAD28/2019 proceeding (under its previous proceeding number WAD6033/1998). The Part B Orders were made in the WAD28/2019 (again, under its previous proceeding number WAD6033/1998) and WAD382/2017 proceedings. The Part C Orders were made in the WAD44/2018 and WAD157/2018 proceedings.

7    The Part A Orders, the Part B Orders and the Part C Orders (together, the Parts A-C Orders) have been entered under r 39.35 of the Federal Court Rules 2011 (Cth) (2011 FCRs).

8    In the case of each determination:

(a)    an order making the annexed determination was made, but was only to take effect upon the making of a determination of the prescribed body corporate for the determination;

(b)    to date, no determination of a prescribed body corporate has been made and so none of the determinations have gone into effect;

(c)    “the persons, or each group of persons, holding the common or group rights comprising the native title” was set out in accordance with s 94A of the Native Title Act 1993 (Cth) (NT Act); and

(d)    the description of native title holders was effectively synonymous.

9    The description of native title holders in the determination made by the Part A Orders contains an error of description, resulting from a formatting error. Paragraph (a) of Schedule 5 of the determination annexed to the Part A Orders lists apical ancestors, descent from whom in part defines the native title holders. Subparagraph (xxxvi) purports to specify the following as an apical ancestor:

where descent can be either by birth or adoption in accordance with the traditional laws acknowledged and the traditional customs observed by the Wajarri Yamatji.

10    That text should not be an item in the list of apical ancestors. Rather, it should appear as concluding words that qualify the nature of descent from any of the apical ancestors specified. The latter is the operation of the same words in the determinations annexed to the Part B Orders and the Part C Orders. The applicants’ present interlocutory application seeks to correct this error in the description of native title holders in the determination annexed to the Part A Orders.

11    Together, the unfinalised portions of the Wajarri Yamatji native title determination applications cover significant territory in their south-western extent. Since the time of the Parts A-C Orders, further research has identified additional apical ancestors’ descent from whom properly define Wajarri Yamatji as a group of native title holders. The applicants seek to amend the lists of apical ancestors contained in the determinations annexed to the Parts A-C Orders to add the following:

(a)    Polly (mother of Paddy Donnelly);

(b)    Angelina (mother of Alice Darby); and

(c)    Topsy (mother of Mary Wheelock).

12    In the case of each ancestor, the evidentiary basis for their inclusion as a Wajarri Yamatji apical ancestor emerged, and was resolved by the Wajarri Yamatji claim group, after the making of the Parts A-C Orders. Polly (mother of Paddy Donnelly) emerged after an approach to Yamatji Marlpa Aboriginal Corporation (YMAC) in 2018, and was resolved at a meeting of the Wajarri Yamatji claim group in May 2019. Angelina (mother of Alice Darby) came to the attention of the applicants as part of the mediation process for the overlap of the Wajarri Yamatji #1 claim (WAD28/2019) and both of the Mullewa Wadjari (WAD21/2019) and Widi Mob (WAD31/2019) claims. Topsy (mother of Mary Wheelock) emerged after an approach to YMAC in 2019. The Wajarri Yamatji claim group resolved their treatment of Angelina (mother of Alice Darby) and Topsy (mother of Mary Wheelock) at a claim group meeting in March 2021.

Consideration and Determination

13    The Court’s power to amend orders that have been entered includes the following power conferred by the 2011 FCRs as follows:

39.05    Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

14    The applicants rely on r 39.05(f) of the 2011 FCRs in respect of the proposed variation to add reference to additional apical ancestors. The applicants rely on r 39.05(g) and/or (h) of the 2011 FCRs for the proposed correction of paragraph (a)(xxxvi) of Schedule 5 of the determination annexed to the Part A Orders.

15    In Nyoni v Pharmacy Board of Australia [2018] FCA 1707, McKerracher J at [15] identified the following principles as applicable to the setting aside or variation of an entered order or judgment under r 39.05 of the 2011 FCRs:

In the r 39.05 context, this Court has identified the following principles as relevant:

(a)    the scope of the power to vary or set aside an order or judgment after entry is more circumscribed than that provided for in relation to the preentry situation. It should be exercised with caution and in exceptional circumstances, mindful of the overarching principle of the finality of litigation: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 per Gordon J (at [6] and the authorities therein cited);

(b)    the discretion to vary an order is not confined, but must be exercised judicially and the Court must have regard to all the evidence and arguments before it at the time of the application: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76 per Yates J (at [68]);

(c)    the power conferred must be exercised in a way that best promotes the overarching purpose identified in s 37M of the [Federal Court of Australia Act 1976 (Cth)], of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible; and

(d)    the Court must also consider the rights and interests of third parties. Orders may be varied or set aside where the party in whose favour the order was made consents, provided that doing so will not detrimentally affect the rights or interests of third parties: Australian Securities and Investments Commission v Yanda/ Gold [2003] FCA 77 per Merkel J (at [23]); Perre v Apand [2004] FCA 1220 per Selway J (at [10]-[11]).

Application under r 39.05(f)

16    Rule 39.05(f) of the 2011 FCRs reflects a long-standing feature of the Court’s rules. The rule mirrors the previous Federal Court Rules 1979 (Cth) O 35, r 7(2)(f) (1979 FCRs), in the latter’s form from its inception. The jurisdiction to set aside or vary a judgment or order which has been entered is exercised with caution where the interests of third parties may be affected. In Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 50, Brennan J (as his Honour then was) observed:

The better view appears to be that the court has jurisdiction to set aside a regular judgment if the parties to the judgment consent to the court doing so. But it further appears that the court should decline to make the order if a third party would suffer particular injury by the making of the order.

17    In Lovett v State of Victoria (No 4) [2011] FCA 931; 195 FCR 198, North J considered an application to amend a determination of native title based on, amongst other things, the provision of the 1979 FCRs equivalent to r 39.05(f) of the 2011 FCRs. North J concluded that the requirements of the provision were satisfied by the party in whose favour a determination was made consenting to the variation in question. His Honour also considered whether the amendment of a determination should proceed under s 13(1)(b) of the NT Act, with a consequent requirement for a “more onerous” notification procedure. His Honour stated at [8]-[9]:

8.    It is open to the Court to make orders amending the Part A determination under either s 13 of the [NT Act] or O 35, r 7 of the [1979 FCRs]. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35, r 7(2)(f) and (3) would be regarded as appropriate in the circumstances.

9.    Given the nature of the amendments sought in the present case, and the consent of both the applicants and the parties whose interests might be affected, no useful purpose would be served by requiring the full notification process under ss 13, 61, 63, and 66 of the [NT Act] to be followed.

18    I accept the applicants’ submission that the variation by which they seek to add specified apical ancestors to the description of native title holders engages r 39.05(f) is relevantly similar to that considered by the Court in Lovett, and accordingly the procedure set out in s 13(1)(b) of the NT Act is not required. That submission is supported by the following:

(a)    consent to seek the variation for each proposed additional apical ancestor was given by resolution of the common law native title holders attending properly notified group meetings;

(b)    those persons, together with the applicant of each native title determination application for which the Parts A-C Orders were made, are the “party in whose favour” the orders were made within the meaning of r 39.05(f);

(c)    the applicants’ proposed variation of the Parts A-C Orders avoids the potential injustice of incorrectly recording the identity of native title holders in the determinations of native title annexed to those orders, or a divergence between the description of native title holders in Wajarri Yamatji native title determinations made to date and those made in pending applications;

(d)    the State of Western Australia has consented to the proposed amendments and the State has agreed to a similar description of native title holders in the Part D and Part E Minutes of proposed consent determination filed on 18 June 2021;

(e)    no other respondent party has objected to the orders sought; and

(f)    no third party interest will be adversely affected by the amendments sought by the applicants.

Application under r 39.05(g) or (h)

19    I accept the applicants’ submission that the anomaly identified in paragraph (a)(xxxvi) of Schedule 5 of the determination annexed to the Part A Orders is either a clerical error, or a slip, which may be appropriately corrected under r 39.05(g) or (h). The amendment would bring the determination annexed to the Part A Orders into line with those annexed to the Part B Orders and the Part C Orders.

Conclusion

20    For these reasons, the orders sought in the interlocutory application will be made.

Associate:

Dated:    29 July 2021