The Nyamal Palyku Proceeding (No 3) [2021] FCA 215

The Nyamal Palyku Proceeding (No 3) [2021] FCA 215

The Nyamal Overlap claim should be dismissed as agreed by all parties, removing the primary case management impasse. The second order, seeking dismissal of the Nyamal Additional Areas claim, is not made, as there is 'another reason' why the claim should not be dismissed: it was compelled by previous orders, has been included in programming orders without objection, and dismissal would risk disruption or delay to the ongoing proceeding. The efficient disposition of the broader proceeding would not be assisted by dismissing the claim at this stage.

Parties
Nyamal #1 Applicant: Kevin Charles Allen and others; Palyku Applicant: Tammy O'Connor and others; Nyamal Overlap Applicant: Mavis Westerman and others (and others named in the Schedule); Respondents: State of Western Australia and others; Respondent: Nullagine Gold; Respondents: Pastoral Respondents; Nyamal Additional Areas Applicant: Nyamal Additional Areas (Part 1) Applicant: Mavis Westerman and others; Palyku #2 Applicant: Palyku #2 Applicant: Kevin Stream and others
Jurisdiction
Australia
Judgment Date
02 March 2021
Procedural Posture
Native Title Proceeding / Determination of Interlocutory Application to Dismiss Native Title Claims
Outcome
The application seeking dismissal of the Nyamal Overlap claim is granted; the application to dismiss the Nyamal Additional Areas claim is adjourned; orders made regarding affidavit requirements for the Nyamal Additional Areas Applicant.
Legal Topics
Application to Dismiss Native Title Claim, Case Management, Overlapping Claims, Conflict Within Claim Group, Registration of Native Title Claims
Native Title Civil Procedure Application to Dismiss Native Title Claim Case Management Overlapping Claims Conflict Within Claim Group Registration of Native Title Claims

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Parties

Kevin Charles Allen and others

Nyamal #1 Applicant

Tammy O'Connor and others

Palyku Applicant

Mavis Westerman and others (and others named in the Schedule)

Nyamal Overlap Applicant

State of Western Australia and others

Respondents

Nullagine Gold

Respondent

Pastoral Respondents

Respondents

Nyamal Additional Areas (Part 1) Applicant: Mavis Westerman and others

Nyamal Additional Areas Applicant

Palyku #2 Applicant: Kevin Stream and others

Palyku #2 Applicant

Procedural Posture

Native Title Proceeding / Determination of Interlocutory Application to Dismiss Native Title Claims

Legal Issues

  1. 1 Whether Nyamal Overlap claim (WAD 289 of 2018) should be dismissed under s 190F of the Native Title Act 1993 (Cth)
  2. 2 Whether Nyamal Additional Areas claim (WAD 482 of 2018) should be dismissed under s 190F NTA and to advance the purposes of civil litigation under ss 37M and 37N Federal Court of Australia Act 1976 (Cth)

Ratio Decidendi

The Nyamal Overlap claim should be dismissed as agreed by all parties, removing the primary case management impasse. The second order, seeking dismissal of the Nyamal Additional Areas claim, is not made, as there is 'another reason' why the claim should not be dismissed: it was compelled by previous orders, has been included in programming orders without objection, and dismissal would risk disruption or delay to the ongoing proceeding. The efficient disposition of the broader proceeding would not be assisted by dismissing the claim at this stage.

Court Disposition

The application seeking dismissal of the Nyamal Overlap claim is granted; the application to dismiss the Nyamal Additional Areas claim is adjourned; orders made regarding affidavit requirements for the Nyamal Additional Areas Applicant.

Orders

  • The proceeding Mavis Westerman & Ors v State of Western Australia & Ors (WAD 289 of 2018) is dismissed.
  • Paragraph 2 of the interlocutory application filed 9 February 2021 is adjourned to a date to be fixed.