Federal Court of Australia

Smith on behalf of the Wati Tjilpi Ku on behalf of the Yilka Sullivan Edwards People v State of Western Australia (No 2) [2022] FCA 959

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    Unless an order for the respondent’s costs is made in furtherance of an application for costs made by the respondent within 7 days hereof, there be no order for costs.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    These reasons for judgment deal with an application for compensation made under s 61(1) of the Native Title Act 1993 (Cth). The application seeks the determination of a claim for compensation (compensation application). The named applicant for the compensation application is Mr B Smith. Sadly, Mr B Smith passed away on 11 June 2021. An application was then made by Mr Alwyn Bates and Mr Dereck Junior Harris under s 66B of the Act to replace the named applicant, Mr B Smith. That application was opposed by the State of Western Australia and was also opposed by the Yilka Talintji Aboriginal Corporation (YTAC). YTAC is a registered prescribed body corporate which holds the native title rights and interests of the Yilka native title holders on trust. The application failed and was dismissed for the reasons stated in my judgment published 19 May 2022: Smith on behalf of the Wati Tjilpi Ku on behalf of the Yilka Sullivan Edwards People v State of Western Australia [2022] FCA 581.

2    As my earlier reasons for judgment set out, Mr Bates and Mr Harris unsuccessfully contended that the persons who are the senior ritual authority holders over all of Central Australia, including the Central and Western Desert Areas of Western Australia, (Senior Wati) were authorised by the Yilka native title holders to bring this compensation application and to appoint the applicant. They also unsuccessfully contended that, in accordance with the traditional laws and customs of the Yilka native title holders, the Senior Wati had authorised Mr Bates and Mr Harris to replace Mr B Smith as the applicant.

3    Following the publication of my earlier judgment and on 2 June 2022, the Court communicated with the legal representatives of the State and the solicitor for Mr Bates and Mr Harris (who had also been the solicitor for Mr B Smith) as well as YTAC. In that communication, those persons were informed that the Court intended to consider whether the Court should, on its own motion, dismiss the proceeding. Those persons were requested to make any submission they sought to make as to whether the proceeding should be dismissed on the basis that there was no longer a living applicant to prosecute the compensation application. Furthermore, those persons were advised that once submissions had been received, the Court would consider whether a hearing was required or, alternatively, whether the question as to whether the application ought to be dismissed should be dealt with on the papers.

4    On or about 15 June 2022 the State filed and served a submission in which it contended for the dismissal of the compensation application. No submission was received from any other person at that time. Nor has any submission or any further communication been received in relation to the prospect of this proceeding being dismissed since that time.

5    Rule 5.22(d) of the Federal Court Rules 2011 (Rules) provides that a party is in default if the party fails to prosecute or defend a proceeding with due diligence. Where an applicant is in default r 5.23(1)(b) empowers the Court to stay or dismiss the proceeding. Rule 1.40 of the Rules provides that the Court may, at any stage of a proceeding, exercise a power mentioned in the Rules on its own initiative. Additionally, r 1.32 of the Rules provides that the Court may make any order that the Court considers appropriate in the interests of justice.

6    There is no living applicant to prosecute the compensation application and, I would infer from the lack of opposition to the prospect of the dismissal of the compensation application, that there is no apparent willingness or capacity for another person to be substituted as the applicant. It is likely then that no further step can or will be taken in pursuance of the compensation application and that the application will remain unprosecuted, as it has been since the unfortunate death of Mr B Smith.

7    In those circumstances, there is a default within the meaning of r 5.22 of the Rules and the power to dismiss the proceeding under r 5.23 has been engaged. Furthermore, the interests of justice have engaged the power to make an order dismissing the proceeding under r 1.32.

8    I will therefore order that the compensation application be dismissed. The State has made no application for its costs. I will make no order as to costs but will reserve for 7 days the capacity of the State to make such an application.

Associate:

Dated:    19 August 2022