Tucker on behalf of the Narnoobinya Family Group v Western Australia [2009] FCA 1459

Tucker on behalf of the Narnoobinya Family Group v Western Australia [2009] FCA 1459

Although the Narnoobinya claim had not been prosecuted with diligence and had taken no steps in Court since October 2006, dismissal of a native title proceeding is a drastic step. The fair and just course was to make a self-executing order giving the Narnoobinya applicants until 11 December 2009 to file and serve a document precisely identifying the steps they intended to take and a reasonable timeframe; failing compliance, the Narnoobinya proceeding would be dismissed. The joinder motion should be adjourned pending the outcome of the dismissal issue.

Jurisdiction
Australia
Judgment Date
04 December 2009
Procedural Posture
Native Title Determination Applications Under the Native Title Act 1993 (cth) / Interlocutory Motions for Dismissal of the Narnoobinya Claim and Joinder or Restoration in the Ngadju Claim
Outcome
Motions adjourned; conditional self-executing dismissal order made for WAD 6170 of 1998 if the Narnoobinya applicants did not comply by 11 December 2009.
Legal Topics
['dismissal for Failure to Prosecute' 'joinder of Overlapping Native Title Claims' 'case Management' 'abuse of Process']
['native Title' 'civil Procedure'] ['dismissal for Failure to Prosecute' 'joinder of Overlapping Native Title Claims' 'case Management' 'abuse of Process']

Case Brief

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Procedural Posture

Native Title Determination Applications Under the Native Title Act 1993 (cth) / Interlocutory Motions for Dismissal of the Narnoobinya Claim and Joinder or Restoration in the Ngadju Claim

Legal Issues

  1. 1 ['Whether the Narnoobinya application should be dismissed under O 35A r 3(1)(a) and/or O 20 r 4(2) of the Federal Court Rules for failure to prosecute.' 'Whether the Goldfields Land and Sea Council had standing to bring the dismissal motion on behalf of the Ngadju applicants.' 'Whether the Narnoobinya applicants should be rejoined to the Ngadju application or made a respondent to it if their own claim was not dismissed.']

Ratio Decidendi

Although the Narnoobinya claim had not been prosecuted with diligence and had taken no steps in Court since October 2006, dismissal of a native title proceeding is a drastic step. The fair and just course was to make a self-executing order giving the Narnoobinya applicants until 11 December 2009 to file and serve a document precisely identifying the steps they intended to take and a reasonable timeframe; failing compliance, the Narnoobinya proceeding would be dismissed. The joinder motion should be adjourned pending the outcome of the dismissal issue.

Court Disposition

Motions adjourned; conditional self-executing dismissal order made for WAD 6170 of 1998 if the Narnoobinya applicants did not comply by 11 December 2009.

Orders

  • ['Subject to Orders 2 and 3 below, each motion before the Court is adjourned to a date to be fixed.' 'The applicants in WAD 6170 of 1998, on or before 11 December 2009, file and serve a document setting out precisely what steps they intend to take in that proceeding and a reasonable time frame proposed for carrying...