Federal Court of Australia

Banjima Native Title Aboriginal Corporation RNTBC v State of Western Australia [2026] FCA 1578

ORDERS

THE COURT ORDERS THAT:

1.    Insofar as leave is required, the applicant has leave to file and serve nunc pro tunc the:

(a)    Amended Originating Application in the form served on 12 October 2026; and

(b)    Amended Statement of Claim (ASOC) in the form served on 1 October 2026.

2.    Pursuant to s 33N(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding no longer continue as a representative proceeding under Part IVA of that Act.

3.    Time for the applicant to serve its Reply is extended to 1 October 2026 nunc pro tunc.

4.    Time for the applicant to comply with Order 10 of the Orders of 15 April 2026 is extended to 7 October 2026.

5.    The respondent shall file and serve an Amended Defence by 4.00 pm AWST on 23 December 2026, which shall include a pleaded response to Schedule B of the ASOC.

6.    The applicant shall file and serve an Amended Reply by 4.00 pm AWST on 27 January 2027.

7.    The applicant shall file and serve on the respondent any required notices under s 78B of the Judiciary Act 1903 (Cth) by 4.00 pm AWST on 10 February 2027 and shall thereafter serve those notices as required by s 78B.

8.    The extent of early discovery as sought by the applicant shall be determined at an interlocutory hearing to be held at 10.15 am AWST on 29 October 2026.

9.    On or before 26 October 2026 the respondent shall file and serve an outline of submissions for the purposes of the hearing on 29 October 2026.

10.    The case management hearing is otherwise adjourned until 10.15 am AWST on 24 February 2027.

11.    Liberty to apply.

12.    Costs reserved.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The former township of Wittenoom is located close to places where asbestos mining was conducted. It is notorious that parts of the township, the mine and land in the vicinity became contaminated with asbestos, though the extent of contamination is contentious. The former townsite was closed by operation of the Wittenoom Closure Act 2022 (WA). Under that legislation, an area of land described in the legislation as the Wittenoom land was compulsorily acquired by the State of Western Australia.

2    In February this year, a representative proceeding was commenced by Banjima Native Title Aboriginal Corporation RNTBC against the State of Western Australia. Banjima NTAC claims to be the registered native title body corporate and the trustee for native title rights held for the benefit of the Banjima people in respect of land affected by the presence and spread of blue asbestos from certain specified locations in and around Wittenoom. The proceedings as commenced alleged claims in nuisance on behalf of group members who were said to be Banjima people who were the holders of native title rights whose enjoyment or exercise of those rights was being prevented, impeded or interfered with in consequence of the presence and spread of blue asbestos from certain specified areas in and around Wittenoom.

3    As to each location the subject of the claims, it was said that: 'No step… has ever been taken by the State, and the State has repeatedly determined not to take any step, to remove, contain or otherwise remediate the blue asbestos released into the environment from the [location]'. At all material times, the State was alleged to know (actually or constructively) of the presence of asbestos at the location and that blue asbestos or material containing blue asbestos was spreading from those locations. The State was also alleged to know (actually or constructively) at those material times that inhalation or ingestion of blue asbestos even in very small amounts was a danger to human health.

4    The relief that was sought on the basis of the alleged cause of action in nuisance was to the following effect:

(1)    a declaration that the State has committed and continues to commit nuisance and/or against Banjima NTAC or group members;

(2)    a mandatory injunction requiring the State to abate the nuisance;

(3)    damages, including damages for loss of amenity on behalf of Banjima NTAC and group members particularised as 'damages at common law for the past interference with their [native title rights] and their fear and apprehension of themselves and their families and friends contracting mesothelioma';

(4)    equitable damages in lieu of an injunction or an order to abate the nuisance, particularised in the same terms as the claim to damages;

(5)    aggravated damages and exemplary damages, relying amongst other things, upon the alleged vulnerability of the Banjima people, the State's alleged knowledge and the State's alleged failure to take steps despite its knowledge and the alleged obviousness of the need for steps to be taken, including having regard to the incidence of asbestos related disease in Indigenous people, particularly Banjima people;

(6)    such further or other relief as the Court considers just.

5    At a case management hearing on 15 October 2026 Banjima NTAC sought orders authorising amendments to the statement of claim in the proceedings that would advance the claims in the proceedings by Banjima NTAC as trustee for the native title holders rather than as a representative applicant for the group members. An order was also sought that the proceedings no longer continue as representative proceedings under Part IVA of the Federal Court of Australia Act 1976 (Cth). I made those orders (and other case management orders). At the time, I indicated that I would provide my reasons for making the orders that would allow the proceedings to no longer continue as representative proceedings. These are those reasons.

6    Within Part IVA of the Federal Court of Australia Act 1976 (Cth), s 33N provides as follows:

(1)    The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:

(a)    the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b)    all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or

(c)    the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d)    it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

(2)    If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court.

(3)    Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just.

7    Banjima NTAC contended that it would be appropriate for the Court, of its own motion, to order that the proceeding no longer continue as a representative proceeding under Part IVA on the basis of the proposed amendments to the statement of claim. Those amendments, if allowed, would provide for Banjima NTAC to bring the same nuisance claim as trustee for the group members. They alleged that Banjima NTAC held the relevant native title rights and interests as trustee for the group members, a position supported by an affidavit provided in support of the amendment application. The amendments maintained the description of the group members but identified them as beneficiaries on whose behalf the claim was to be advanced by Banjima NTAC. It referred to the exercise by those beneficiaries of their native title rights as an ordinary use of land within the area the subject of the determination of those rights. In substance the relief sought remained the same.

8    In oral submissions, senior counsel for Banjima NTAC confirmed that the proceedings did not include any attempt to claim on behalf of group members any form of individual damages beyond claimed interference with native title rights.

9    In those circumstances, Banjima NTAC advanced the following contentions:

(1)    All the relief sought in the proceedings could be obtained by a proceeding other than a representative proceeding under Part IVA;

(2)    No group members would be worse off by the conversion of the proceedings under Part IVA to proceedings advanced by Banjima NTAC as trustee for the holders of native title rights and interests;

(3)    There was no prejudice to the State and it did not oppose the making of orders of the kind suggested.

10    It was also of significance that the application was advanced at an early stage of the representative proceedings in circumstances where no agreements had been made with group members and no orders had been made for any form of notice to be given to group members. Further, the application was made in circumstances where the State maintained that no relief could be sought by way of representative proceedings in respect of any cause of action that accrued before the Part IVA regime came into effect.

11    In Kikuyu v Hazzard [2022] FCA 310, Lee J considered an application by the respondents to 'de-class' in circumstances where the proposed orders were not opposed by the representative applicant. His Honour identified a two-step approach. First, to consider whether one of the matters listed in s 33N existed. Second, to consider whether it was in the interests of justice to make the orders sought on the basis of the factor identified. As to the scope of the provision, see also Strand Fitness Pty Ltd v QBE Insurance (Australia) Ltd [2026] FCAFC 101 at [8]-[9], [22] (Perram, Halley and Button JJ).

12    In the circumstances I have described, I was satisfied that all the relief sought in the proceedings can be sought by Banjima NTAC acting as trustee. Further, having regard to the nature of the claims advanced and their focus upon seeking relief that would abate the extent of the alleged ongoing contamination of areas of land in respect of which there have been determined to be native title rights and interests, I was satisfied that it was otherwise appropriate for the proceedings to cease being conducted as representative proceedings.

13    On the basis of the unopposed contentions advanced by Banjima NTAC, I was further satisfied that it was in the interests of justice for the Court of its own motion to make orders that the proceedings no longer continue as representative proceedings (and for the statement of claim to be amended accordingly) and that it was not necessary to impose any conditions on the making of such orders. To do so removed a procedural issue between the parties without any consequence for the nature and extent of claims made in the proceedings. It would also simplify the future conduct of the proceedings in circumstances where Banjima NTAC had obligations as trustee when it came to the interests of those who had been identified as group members.

Associate:

Dated:    21 October 2026