Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115

Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115

The original claimant application was liable to be struck out because the claim group was not clearly identified, Mr Dates was not shown to be a person included in the originally identified female claim group, and authorisation by all persons in that claim group was not established. The proposed application did not cure the defect because it substituted a fundamentally different family claim group, inconsistent with the original claim and not shown to include all persons holding the common or group native title rights and interests. Accordingly, the application did not comply with the Native Title Act 1993 (Cth) and was struck out under s 84C and dismissed under O 20 r 2.

Jurisdiction
Australia
Judgment Date
22 August 2006
Procedural Posture
Native Title Non Claimant Application and Native Title Claimant Application / Interlocutory Applications for Joinder, Strike Out or Summary Dismissal, and Adjournment
Outcome
In NSD 208 of 2006, the claimant application was struck out and the proceedings dismissed. In NSD 1989 of 2004, Mr Dates was given time to file and serve any new native title claimant application and evidence in support of joinder, and the non-claimant application and joinder motion were stood over.
Legal Topics
['strike Out Under S 84 C of the Native Title Act 1993 (cth)' 'authorisation of Native Title Claimant Applications' 'identification of Native Title Claim Group' 'joinder to Native Title Proceedings' 'adjournment to Amend or File Claimant Application']
['native Title' 'practice and Procedure'] ['strike Out Under S 84 C of the Native Title Act 1993 (cth)' 'authorisation of Native Title Claimant Applications' 'identification of Native Title Claim Group' 'joinder to Native Title Proceedings' 'adjournment to Amend or File Claimant Application']

Case Brief

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Procedural Posture

Native Title Non Claimant Application and Native Title Claimant Application / Interlocutory Applications for Joinder, Strike Out or Summary Dismissal, and Adjournment

Legal Issues

  1. 1 ['Whether the native title claimant application complied with the Native Title Act 1993 (Cth) or was liable to be struck out pursuant to s 84C or O 20 r 2 of the Federal Court Rules.' 'Whether the native title claim group in the original application was sufficiently identified and whether Mr Dates was a member of that claim group.' 'Whether Mr Dates was authorised by all members of the claim group under s 251B of the Native Title Act 1993 (Cth).' 'Whether an adjournment should be granted to permit a proposed application identifying a different claim group consisting of Mr Dates and his family.' 'Whether Mr Dates should be joined to the non-claimant application brought by Mr Hillig.']

Ratio Decidendi

The original claimant application was liable to be struck out because the claim group was not clearly identified, Mr Dates was not shown to be a person included in the originally identified female claim group, and authorisation by all persons in that claim group was not established. The proposed application did not cure the defect because it substituted a fundamentally different family claim group, inconsistent with the original claim and not shown to include all persons holding the common or group native title rights and interests. Accordingly, the application did not comply with the Native Title Act 1993 (Cth) and was struck out under s 84C and dismissed under O 20 r 2.

Court Disposition

In NSD 208 of 2006, the claimant application was struck out and the proceedings dismissed. In NSD 1989 of 2004, Mr Dates was given time to file and serve any new native title claimant application and evidence in support of joinder, and the non-claimant application and joinder motion were stood over.

Orders

  • ['In NSD 1989 of 2004, Mr Dates is to file and serve any native title claimant application within 28 days.' 'In NSD 1989 of 2004, Mr Dates is to file and serve any further evidence in support of his notice of motion for joinder to the Hillig proceedings within 28 days.' 'In NSD 1989 of 2004, the non-claimant...