Federal Court of Australia

Layton on behalf of the Dhudhuroa, Waywurru and Ngurai Illum People v State of Victoria (leave to discontinue) [2026] FCA 1263

ORDERS

THE COURT ORDERS THAT:

1. The Applicant is granted leave under r 26.12 of the Federal Court Rules 2011 (Cth) to discontinue the whole of the proceeding.

2. There is 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

HILL J:

introduction

1 The Applicant (the DWNI applicant) filed a native title determination application on behalf of the Dhudhuroa, Waywurru and Ngurai Illum people in November 2023 (the DWNI application). In June 2026, the DWNI applicant filed an interlocutory application seeking leave to discontinue the whole of this proceeding. These reasons deal with that interlocutory application.

2 For the following reasons, leave is granted to discontinue these proceedings.

3 Decision on the papers: I have decided to deal with this application on the papers, as foreshadowed in case management orders made by a Judicial Registrar on 5 June 2026. The Fifteenth Respondent (Ms Pauline Mullett) submits that there should be an oral hearing, because the issues are significant and cannot be resolved without proper scrutiny. Although the issues are significant, the necessary proper scrutiny can in my view occur without an oral hearing. I am satisfied that there is no real issue of fact relevant to the determination of the matter, and that the legal arguments can be dealt with adequately by written submissions: see Federal Court of Australia Act 1976 (Cth), s 20A(2)(c).

4 The Court has received written submissions on this interlocutory application from the First Respondent (Victoria) dated 13 July 2026; from Ms Mullett received on 16 July 2026; and amended submissions from the DWNI applicant dated 3 August 2026.

5 The Court has received the following evidence on this interlocutory application:

Two affidavits of Ms O’Connor-Sraj, a solicitor acting for the DWNI applicant, sworn on 29 June 2026 and 27 July 2026;

An affidavit of Mr McIntyre, a solicitor at the Victorian Government Solicitor’s Office (VGSO), affirmed on 13 July 2026; and

An affidavit of Ms Mullett affirmed on 14 July 2026.

6 In addition, some relevant background is set out in an affidavit of Ms Malyon affirmed on 20 May 2026, which accompanied an application for summary dismissal of these proceedings.

background

7 Native title determination application (Nov 23): On 9 November 2023, the DWNI application was lodged, seeking a determination of native title under s 61 of the Native Title Act 1993 (Cth).

(a) The application was expressed to be brought on behalf of the Dhudhuroa, Waywurru and Ngurai Illum people by six named applicants.

(b) The claim area covers much of the middle part of Victoria, extending from near Bendigo in the west, to Wodonga in the north, and to around Omeo in the south-east of the claim area. The application acknowledges that there are two registered Indigenous Land Use Agreements over parts of the claim area.

(c) The authorisation process was a meeting of the Dhudhuroa, Waywurru and Ngurai Illum people who assert rights and interests in the relevant land and waters held in person on 21 October 2023. There were 43 people in attendance, and 71 proxy votes.

(d) At this meeting, the DWNI native title claim group placed three conditions on the authority of the DWNI applicant under s 251BA of the Native Title Act:

1.     The applicant is not to make any significant decisions (for example a right to negotiate) about any area of the land or waters the subject of the application without first obtaining informed consent from the Dhudhuroa, Waywurru and Ngurai Illum Native Title Claim Group;

2.     The applicant cannot settle the native title claim without first obtaining informed consent from the Dhudhuroa, Waywurru and Ngurai Illum Native Title Claim Group at a properly constituted meeting (or meetings) of the Dhudhuroa, Waywurru and Ngurai Illum Native Title Claim Group; and

3.     The applicant will do all things reasonably necessary to progress the native title determination application.

8 DWNI application is not accepted for registration (May, Nov 2024): On 29 November 2024, a delegate of the Native Title Registrar decided that the DWNI application did not satisfy all the conditions under s 190B, and must not be accepted for registration.

The delegate was not satisfied that there was a sufficient factual basis to support the assertion that the DWNI native title claim group have and their predecessors had an association with the whole of the claim area (cf s 190B(5)(a)). In particular, the factual material did not support an assertion that the DWNI native title claim group had an association with the claim area around Broken River, or with the country around Omeo (although it did support an association with the other parts of the claim area).

Further, the delegate was not satisfied that there was a sufficient factual basis to support the assertion that traditional laws and customs acknowledged and observed by the DWNI native title claim group give rise to the claim to native title rights and interests (cf s 190B(5)(b)). The factual material supported the existence of traditional laws and customs acknowledged and observed by the predecessors of the Dhudhuroa, Waywurru and Ngurai Illum people at the time of the assertion of sovereignty, but the factual material did not contain sufficient detail about the laws acknowledged and customs observed by the current claim group and how those laws and customs have been transmitted, from generation to generation, to the current claim group.

The fact that the DWNI application did not satisfy s 190B(5)(b) meant in turn that the application did not satisfy s 190B(5)(c) (the native title claim group continues to hold the native title in accordance with the traditional laws and customs); or s 190B(6) (prima facie, at least some of the claimed native title rights and interests can be established); or s 190B(7) (at least one member of the native title claim group has or had a traditional physical connection with any part of the land or waters covered by the application).

On the other hand, the delegate was satisfied that the procedural requirements in s 190C were satisfied, including that the DWNI application had been properly authorised.

9 On 29 November 2024, the President of the National Native Title Tribunal in a reconsideration decision decided that the DWNI application did not satisfy all of the conditions in s 190B, and must not be accepted for registration.

The President observed that it was difficult to work out whether the claim was advanced on the basis of (1) three distinct Aboriginal societies; (2) three overlapping regional societies or alliance networks; (3) parts of three different “linguo-ethnicity” groups; (4) two societies comprising the Ngurai Illum, on the one hand, and the Waywurru and Dhudhuroa jointly, on the other; or (5) one overarching society comprising three land-holding groups.

The President reached the same conclusions as the delegate on s 190B(5)(a): the factual material did not support an association with the claim area around Broken River, or with the country around Omeo, but did support a connection with the other parts of the claim area. The President found additionally that the factual material did not support an assertion that the DWNI native title claim group succeeded to these areas post-sovereignty.

The President agreed with and adopted the delegate’s reasons on s 190B(5)(b): the factual material did not show how traditional laws and customs were acknowledged and observed by the current claim group and how they had been passed down from generation to generation. As with the delegate’s decision, that conclusion meant that the DWNI application did not meet s 190B(5)(c), (6) or (7) either.

On the other hand, the President accepted that the DWNI application had been properly authorised.

10 Taungurung native title application (Feb 2026): On 11 February 2026, a native title determination application was filed on behalf of the Taungurung people in this Court. The Taungurung claim area partially overlaps the DWNI claim area.

11 Filing of concise statements (Apr 2026): In March 2026, timetabling orders were made for the DWNI applicant to file a concise statement and for participating Respondents to file concise responses, as a way of the parties trying to agree on a statement of facts and issues in dispute.

The DWNI applicant filed an amended concise statement dated 3 April 2026. This statement contends, in outline, that the Dhudhuroa, Waywurru, and Ngurai Illum peoples are distinct Aboriginal societies that hold native title rights and interests in distinct parts of the claim area, and that the proceeding is a “composite application”.

The Seventh, Sixteenth and Seventeenth Respondents (the GunaiKurnai Respondents) filed a concise response dated 14 April 2026. The GunaiKurnai Respondents contend that neither the Dhudhuroa nor any other group in the DWNI application holds native title in the part of the claim area referred to as the “Dhudhuroa Area”.

The Eighth and Eleventh to Fourteenth Respondents (the Taungurung Respondents) filed a concise response dated 16 April 2026. Among other things, the Taungurung Respondents contend that the Ngurai Illum was and is not a distinct society, and is associated with the Taungurung language and part of a regional Kulin society. The Taungurung Respondents contend that the description of the Dhudhuroa and Waywurru groups in the DWNI application is vague and embarrassing, and the extent of those groups is undefined. The Taungurung Respondents deny that the map attached to the DWNI application correctly represents the geographical extent of the DWNI claim groups.

Victoria’s concise response dated 23 April 2026 seeks clarification (among other things) of the nature of the “composite claim”, and clarification about membership of each of the Dhudhuroa, Waywurru and Ngurai Illum groups. Victoria also refers to the overlap with the Taungurung native title determination application.

The concise response of the Second Respondent (Commonwealth) dated 23 April 2026 states that the DWNI applicant had over time made inconsistent and unclear statements about the basis of the DWNI application, and that the factual basis for the pleadings was unclear. The Commonwealth states that the DWNI application is contested by others on the basis of asserted native title rights and interests, such as the Taungurung Respondents, the GunaiKurnai Respondents, and Ms Mullett. The Commonwealth response contends that a number of issues required clarification, relating to: the laws and customs at sovereignty; the rights and interests at sovereignty; laws and customs at the present day; continuity since sovereignty; connection as at the present day; rights and interests as at the present day; and whether the application was properly authorised (given the claim was now being put as a composite claim on behalf of three distinct societies).

12 Taungurung Respondents apply for summary dismissal (May 2026): On 20 May 2026, the Taungurung Respondents applied to have this proceeding dismissed pursuant to s 190F(6) of the Native Title Act. That application was supported by the affidavit of Ms Maylon, which attaches the decisions of the delegate and the President refusing to register the DWNI application, and correspondence between the lawyers for the Taungurung Respondents and the DWNI applicants.

13 Native Title Act s 190F(6): Section 190F(6) of the Native Title Act applies (relevantly) when:

the Registrar does not accept the claim because, in the opinion of a member of the Tribunal on reconsideration under s 190E, the claim does not satisfy all of the conditions in s 190B (s 190F(5)(a)(i)); and

the Court is satisfied that the avenues for review or reconsideration of the Registrar’s decision under the Native Title Act or any other law have all been exhausted without the registration of the claim (s 190F(5)(b)).

14 In those circumstances, the Court may dismiss the application in which the claim is made (the “application in issue”) under s 190F(6) if:

(a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

(b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

15 Timetabling orders (Jun 2026): During May 2026, the lawyers for the DWNI applicant foreshadowed bringing an application to discontinue these proceedings. On 5 June 2026, a Judicial Registrar made timetabling orders for the filing of materials and dealing with any discontinuance application. The DWNI applicant filed an interlocutory application to discontinue on 29 June 2026, pursuant to those orders.

16 Consultation with DWNI native title group (May-June 2026): A key issue raised in Victoria’s submissions (discussed below) is whether there has been sufficient consultation with the DWNI native title group about the application to discontinue. That matter is dealt with in the first O’Connor-Sraj affidavit, as clarified by correspondence between the DWNI applicant’s lawyers, and VGSO and the Australian Government Solicitor (AGS), which is attached to the McIntyre affidavit. The second O’Connor-Sraj affidavit contains some further evidence.

17 The relevant timeline is as follows:

(a) On 11 May 2026, the DWNI applicant’s lawyer wrote to the Senior Legal Case Manager at the Court that they had obtained advice from counsel over the weekend of 9-10 May and, as a consequence, would be urgently seeking instructions from the DWNI applicant and members of the claim group about seeking leave to discontinue the application, “on the basis that it would be open to each of the Dhudhuroa, Waywurru and Ngurai Illum groups to subsequently pursue a reformulated native title application (for example a separate application for each group)”.

(b) On 19 May 2026, the DWNI applicant’s lawyers held a videoconference meeting with three members of the DWNI applicant (Ms Layton, Mr Peters and Ms Patten), and three senior members of the claim group (Mr Gary Murray, Mr Robby Knight and Mr David Nelson). The attendees unanimously resolved to seek leave to discontinue the proceedings, on the basis that the three constituent groups would pursue their own separate native title determination applications.

(i) Ms O’Connor-Sraj states that after the meeting she contacted two other members of the DWNI applicant (Mr Gardiner and Ms Ockwell) who had been unable to attend on 19 May 2026, and she states that they agreed with the proposed resolution. Ms O’Connor-Sraj states that the DWNI applicant’s lawyers have had no contact with the remaining member of the Applicant, Ms Jennifer Mason, since she was authorised to be a member of the DWNI applicant in October 2023.

(ii) Ms O’Connor-Sraj also states that after the meeting she contacted several senior members of the claim group (Ms Annette Xiberras, Mr David Nelson and Mr John Terrick) who had been unable to attend on 19 May 2026, and she states that they agreed with the proposed resolution. (I note that Ms O’Connor-Sraj also states that Mr David Nelson attended the videoconference meeting on 19 May 2026.)

(c) On 18 June 2026, the DWNI applicant’s lawyers held a videoconference meeting with members of the DWNI claim group. A total of 38 claim group members registered, and 21 members attended the meeting. No-one requested to participate by proxy. Ms O’Connor-Sraj states that the attendees unanimously agreed to seek leave to discontinue the proceeding, and agreed to a resolution that the Dhudhuroa, Waywurru and Ngurai Illum native title claim group supports each group lodging its own native title determination application with the Federal Court regarding its country.

(iii) On 11 June 2026, the DWNI applicant’s lawyers emailed a newsletter about the videoconference meeting (attaching the proposed motion and accompanying information) to all known email addresses for members of the DWNI claim group, which was for 36 different claim group members. This email provided the zoom link for the videoconference.

(iv) On 12 June 2026, the DWNI applicant’s lawyers sent a proposed Facebook post (which included notice of the 18 June 2026 meeting) to instructing group members, and requested that those group members share the Post with other members, including through their private Facebook accounts and community networks. Ms O’Connor-Sraj states that the DWNI applicant’s lawyers do not maintain a Facebook page for these purposes, and do not have any information about whether the Facebook post was shared by group members.

(v) The DWNI applicant’s lawyers sent draft minutes from this meeting (with legal advice redacted) to the VGSO and AGS, and this correspondence is attached to the McIntyre affidavit.

(d) Ms O’Connor-Sraj states that she met with senior members of the Ngurai Illum group on 30 June 2026 and 7 July 2026, and she states that all participants in this meeting favoured discontinuing this proceeding, and pursuing a separate Ngurai Illum native title determination application. She states that she separately met with senior members of the Dhudhuroa group on 7 July 2026, and that all participants in this meeting also favoured discontinuing this proceeding, and pursuing a separate Dhudhuroa native title determination application. At the time of her second affidavit, the DWNI applicant’s lawyers were proposing to meet with senior members of the Waywurru group, but a date for that meeting had not been set.

18 Responses from Respondents: The Judicial Registrar’s timetabling orders required, in the event that the DWNI applicant applied for leave to discontinue, the Respondents to advise whether they opposed, consented to, or neither opposed nor consented to this application.

27 Respondents advised that they neither consented to nor opposed the application, including the Taungurung Respondents, the GunaiKurnai Respondents, Victoria and the Commonwealth.

Ms Mullett has filed materials stating that she opposes the DWNI applicant being granted leave to discontinue.

Seven Respondents did not respond.

Analysis

Discontinuing native title proceedings – general principles

19 Federal Court Rules r 26.12: By r 26.12(4) of the Federal Court Rules 2011 (Cth), a representative party must not discontinue a party’s claim without first obtaining the leave of the Court. A native title proceeding is representative in nature: see Levinge v Queensland [2012] FCA 1321; (2012) 208 FCR 98 at [47] (Reeves J); Augustine v State of Western Australia [2013] FCA 338 at [10] (Gilmour J); Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 at [5] (Logan J).

20 The Court’s discretion whether to grant leave to discontinue is guided by the following principles:

(a) The discretion is unfettered.

(b) The parties should not be compelled to litigate against its will, but that is balanced against whether discontinuance would impose injustice on a respondent.

(c) Whether the application to discontinue results from a conclusion that the litigation cannot succeed or is inspired by other reasons.

(d) Whether a grant of leave to discontinue should be attended with conditions.

(e) In a rare case the Court may determine that the only order is to refuse the leave sought.

KK (deceased) v State of Western Australia [2013] FCA 1234; (2013) 217 FCR 115 at [29] (Barker J); see also Levinge at [38]; Hill at [9]; Anderson on behalf of the Warrabal People v State of Queensland [2018] FCA 1365 at [8] (Rangiah J).

21 Requirement to consult native title group? Victoria in its written submissions raises a question whether the DWNI claim group was given sufficient notice of the 28 June meeting; in particular, whether all claim group members were given every reasonable opportunity to participate, as required by s 251B(b) of the Native Title Act. Victoria also questions whether the DWNI applicant obtained the informed consent of the DWNI claim group to seek leave to discontinue, as required by s 251BA.

22 Applicant not invariably required to consult: Victoria’s first submission suggests that there is a requirement to consult the DWNI claim group arising from s 251B(b) of the Native Title Act. However, there is no requirement under the Native Title Act for the native title group to authorise the native title applicant to seek leave to discontinue a claimant application: the general authority conferred on a native title applicant by ss 62A and 251B of the Native Title Act would extend to seek leave to discontinue (unless conditions are imposed on that authority under s 251BA). That said, the fact that the native title applicant obtained the approval of the native title group is relevant to the Court’s discretion whether to grant leave: Augustine at [14]-[16]; KK at [33].

In Levinge, Reeves J declined to grant leave to discontinue a claimant application, in the absence of any evidence as to whether the native title group had been consulted about or even informed of the application. His Honour stated that, although the authorised native title applicant had the authority to commence the proceedings and exclusive authority to continue to deal with them, the proceedings remained those of the native title group. The views of the native title group were therefore relevant to whether it was in the interests of justice to grant leave to discontinue the proceedings: Levinge at [47]-[50].

In Anderson at [19], Rangiah J held that the question of whether to grant leave to discontinue depends on the circumstances of the particular case, and Levinge did not purport to establish any immutable rule that there must be evidence of the native title applicant having consulted and obtained the consent of the native title claim group as a whole to discontinue a proceeding.

23 Accordingly, the usual principles for what amounts to obtaining authorisation under s 251B(b) (including giving all claim group members every reasonable opportunity to participate: Sandow v State Minister for the State of Queensland [2025] FCAFC 140; (2025) 313 FCR 295 at [27] (the Court)) do not apply here.

24 Applicant’s authority is subject to any s 251BA conditions: However, the general position above is subject to the native title claim group imposing conditions on the native title applicant’s authority under s 251BA of the Native Title Act. Here, the DWNI claim group did impose conditions on the DWNI applicant’s authority, as set out in [7](d) above. Relevantly, condition 1 provides that the DWNI applicant is not to make any significant decisions about any area of the land or waters the subject of the application without first obtaining the informed consent from the DWNI claim group.

25 Did the DWNI applicant obtain the “informed consent” of the DWNI claim group? The issue in this case is therefore whether the process set out in [17](b)-(d) above amounts to obtaining the “informed consent” of the DWNI claim group within condition 1. The wording of condition 1 contrasts with condition 2, which provides that the DWNI applicant must not settle the native title claim without first obtaining the informed consent of the DWNI claim group “at a properly constituted meeting (or meetings) of the [DWNI claim group]”. That is, condition 2 requires obtaining informed consent from the DWNI claim group through a particular process of a certain formality (a properly constituted meeting or meetings). But condition 1 does not contain any similar limit: accordingly, there is more flexibility in determining whether the necessary informed consent has been obtained. (I note that discontinuance is different in nature from settling a claim, and is appropriately dealt with under condition 1 rather than condition 2: see [34] below.)

26 Assessing whether the DWNI applicant obtained the informed consent of the DWNI claim group requires an assessment of (1) whether the DWNI claim group as a whole were informed of the proposal to discontinue these proceedings (and provided with sufficient information about the proposal to make a decision), and (2) whether the consent of the DWNI claim group to this course was in fact obtained.

27 Sufficiency of notice? Victoria takes issue with the sufficiency of the notice given to members of the DWNI claim group of the proposal to discontinue these proceedings.

The DWNI applicant’s lawyers sent an email on 8 June 2026 to a group described as “Applicants and Instructing Group” and an email on 11 June 2026 to a group described as “Claim Group Member”. In total, an email was sent to 36 different claim group members. These cover emails stated that the attached newsletter contained important information about “the proposed pathway” for these proceedings, but the 8 June cover email did not refer to discontinuance. The attached newsletter did refer to discontinuing the current proceedings, and to each group then bringing separate native title determination applications. The cover emails did not clearly state that the proposal for discontinuance would be decided at the 18 June meeting.

The DWNI applicant’s lawyers also requested that instructing group members (which I infer to be the group who received the 8 June email) share a draft Facebook post on their personal Facebook pages and with their community networks. Victoria observes that there is no evidence about the extent to which this Facebook post was shared. I accept Victoria’s submission that, in the absence of any evidence about the extent to which notice of the meeting was shared on Facebook, little weight can be given to the possibility that claim group members might have received notice from a Facebook post.

28 Accordingly, the DWNI applicant’s lawyers only notified those members of the DWNI claim group for whom they had email addresses. A total of 38 people were involved in the 18 June meeting: 21 were present, and a further 17 indicated their written support. No-one sought to participate by proxy. By way of contrast, the initial authorisation of the DWNI applicant involved 43 people participating in person, and a further 71 people providing their proxy: see [7](c) above. If this were a question of proper notification for the purposes of s 251B(b) of the Native Title Act, then there would be a real question whether all members of the claim group had been given every reasonable opportunity to participate. There was no general publication that might have drawn the 18 June meeting to the attention of a person who came within the DWNI claim group but who had not provided an email address to the DWNI applicant’s lawyers. There is no specific evidence that the people who were consulted or who participated at the 18 June meeting were representative of the three groups in the DWNI application.

29 However, as noted, s 251B(b) of the Native Title Act is not applicable, and condition 1 does not require the informed consent of the DWNI claim group to be obtained in any particular way. In assessing the extent of consultation, it is relevant to take account of other consultation that occurred before the interlocutory application was lodged. Ms O’Connor-Sraj’s first affidavit refers to discussing the proposal to discontinue in May 2026 with some senior members of the claim group, both at the 19 May meeting and afterwards, and obtaining their agreement to the proposal: see [17](b) above.

The evidence is that three senior members of the DWNI claim group (Mr Murray, Mr Knight and Mr Nelson) attended a meeting to discuss discontinuance on 19 May 2026, and agreed to that course. Those three senior members then attended the 18 June meeting.

Two further senior members (Ms Xiberras and Mr Terrick) were consulted in May 2026, and agreed to discontinuance, but did not register for the 18 June meeting.

In other words, the 18 June 2026 meeting was not the first and only discussion of this proposal among members of the DWNI claim group. Five senior members of the DWNI claim group were consulted in May 2026 about discontinuing these proceedings, and agreed to that course.

30 Ms O’Connor-Sraj also refers to discussions with claim group members that occurred after the interlocutory application was lodged (see [17](d) above). These discussions are not directly relevant to condition 1, which provides that the DWNI applicant must not make significant decisions without “first” obtaining the consent of the DWNI claim group. However, it is of some indirect relevance that the DWNI applicant’s lawyers are not aware of any disagreement among the groups comprising the current DWNI claim group to the proposal to discontinue these proceedings.

31 Did the DWNI applicant in fact obtain the informed consent of the DWNI claim group? Victoria also questions whether the process followed in this case was sufficient in fact to obtain the informed consent of the DWNI claim group.

Victoria observes that Ms O’Connor-Sraj states that 17 members of the DWNI claim group who did not attend the 18 June meeting provided their written support for the proposal, but the DWNI applicant’s lawyers have not provided evidence of the written support, or any terms on which it was provided.

Victoria also submits that the process of decision-making at the 18 June meeting is different from that process followed at the October 2023 authorisation meeting (which was decided by attendee voting, including proxy votes). It is said that it is not clear from the draft minutes of the 18 June meeting whether the prior written support from other members of the DWNI claim group was included in the outcome.

32 I do not accept either of these criticisms. It would perhaps have been better to see the terms of the written support provided by the members of the DWNI claim group who were unable to attend the 18 June meeting, but Ms O’Connor-Sraj has given sworn evidence that these members indicated in writing that they supported the proposal to discontinue. The terms of the minutes of the 18 June meeting indicate that resolutions were passed by those attending the meeting; that is, that the prior “written support” was not counted for these purposes. However, when assessing whether the informed consent of the DWNI claim group has in fact been obtained, it is permissible to aggregate the resolution of those members present at the meeting with those members who indicated their support elsewhere: condition 1 does not require that this consent be obtained in any particular way, and s 251B(b) of the Native Title Act does not apply.

33 Conclusions on consultation with DWNI claim group: For these reasons, I am satisfied that the DWNI applicant has obtained the informed consent of the DWNI claim group as a whole to discontinuing these proceedings, within condition 1 of the s 251BA conditions placed on authorisation. I emphasise two points.

34 First, it is important in reaching this conclusion that discontinuing proceedings does not finally determine the rights of a native title applicant or anyone else. Cases such as Sandow have been concerned to ensure that all members of a claim group have every reasonable opportunity to participate before a decision is made to appoint an applicant, because the applicant will then have authority to make decisions in a proceeding that will have a binding effect on group members. That is not this case. For that reason, an application to discontinue raises very different issues from a decision to settle a claim, which finally determines the applicant’s rights. That is why condition 2 imposes a more demanding process for obtaining the informed consent of the DWNI claim group to settle the claim (at a properly constituted meeting or meetings), whereas discontinuance is dealt with under condition 1.

35 Second, this result receives some support from Rangiah J’s reasoning in Anderson. In that case, the native title applicant wished to discontinue proceedings, because it (on legal advice) conceded that the applicant was not properly authorised and the claim could not succeed: Anderson at [14]. Rangiah J stated that there would need to be strong reasons to justify compelling an applicant to continue to prosecute a claim that it concedes will not succeed: Anderson at [16]. The State of Queensland submitted that the applicant should not be given leave to discontinue because, among other things, no evidence had been produced that the members of the claim group had been consulted and agreed with the discontinuance (as in Levinge). Rangiah J rejected that argument.

Relevantly, Rangiah J held that Levinge did not establish any immutable rule, and it was necessary to consider the particular circumstances. In Anderson, the decision to seek leave to discontinue was a unanimous decision and there was nothing to suggest dissent on that issue within the claim group. Further, the decision to discontinue was based on legal advice that the claim was not properly authorised. Whatever views might be expressed by members of the claim group in the course of consultation would not change that position (whereas, in Levinge, members of the claim group might have been able to raise more funds if they had been consulted about discontinuance): Anderson at [19].

Rangiah J held that it would not be in the interests of justice to compel the applicant in that case to proceed with a claim that it conceded, on legal advice, was fundamentally flawed. Further, although the State in that case had legitimate concerns about whether a new claim over the claim area would cause major disruption to the Court hearing the existing claims in the area, his Honour considered it was unlikely in that case that a new claim would be made: Anderson at [20].

36 It is true that, unlike here, the applicant in Anderson was not subject to s 251BA conditions requiring it to obtain the informed consent of the claim group. Even so, it is significant that Rangiah J considered that it was a relevant part of the circumstances that the reason for discontinuance was legal advice indicating that the existing proceeding was flawed, meaning that the expression of views among the claim group would not change that position. The same is true here. The reasoning in Anderson at [20] shows that it is also necessary to consider whether discontinuance would cause prejudice to the respondents, or to the public interest. That point is considered next.

37 Prejudice to Respondents? As noted, another relevant factor in considering whether to grant leave to discontinue is whether discontinuance would cause prejudice to a respondent, particularly by depriving the respondent of an advantage that has already been gained in litigation: see Augustine at [11]; Hill at [9]. Here, the stated purpose of discontinuance is to permit the three groups comprising the current DWNI applicant to bring separate applications.

38 There can be situations where an applicant has had a full opportunity to litigate its claim, and permitting it to discontinue (with the attendant possibility of starting again) would bring the administration of justice into disrepute: see Hill at [32]-[33]; Augustine at [200]-[202]; Agius (No 4) at [105]. However, Victoria has not made any argument along these lines in its written submissions. The Taungurung and GunaiKurnai Respondents, and the Commonwealth, do not oppose the application for leave to discontinue (although they do not consent either).

39 Ms Mullet contends in her submissions that discontinuance of this proceeding may affect:

(a) the status of overlapping claims;

(b) the rights of native title holders in adjacent areas;

(c) the recognition of Kurnai apical ancestors and lineages; and

(d) the integrity of the Federal Court’s management of overlapping claims.

I do not accept those arguments. Discontinuance of these proceedings, by itself, will not affect anyone’s rights, whether of the current DWNI applicant, the people comprising the DWNI claim group, or anyone else.

40 The other arguments raised by Ms Mullett in her written submissions should also be rejected.

The Respondents, including Ms Mullett, are not members of the DWNI claim group and are therefore not entitled to advance notice of a proposal by the DWNI applicant to discontinue. They have now received evidence of the decision-making process and have been given an opportunity to make submissions on whether leave to discontinue should be granted. For the reasons set out above, that evidence is sufficient for me to be satisfied that the DWNI applicant obtained the informed consent of the DWNI claim group as a whole. There is no breach of procedural fairness.

Ms Mullett also raises an issue about the role of the Seventh Respondent (the GunaiKurnai Land and Waters Aboriginal Corporation) in this proceeding, and she contends that there is a conflict of interest. However, this issue is not relevant to whether the DWNI applicant should be given leave to discontinue.

conclusion

41 For these reasons, leave should be granted to the Applicant to discontinue these proceedings. The Applicant also seeks an order that there be no order as to costs. No party has put any argument to the contrary. Strictly, that order may not be necessary, given s 85A of the Native Title Act, but I make that order to put the position beyond doubt.

Associate:

Dated:    28 August 2026

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