Recommendation 11–5 Section 24(1AA) of the Federal Court of Australia Act 1976 (Cth) should be amended to allow an appeal, with the leave of the Court, from a decision of the Federal Court:
(a) to join or not to join a party under s 84(5) of the Native Title Act 1993 (Cth); or
(b) to dismiss or not to dismiss a party under s 84(8) of the Native Title Act 1993 (Cth).
11.125 The ALRC recommends that appeals be allowed, with the leave of the Court, from a decision of the Federal Court to join, not join, dismiss, or not dismiss a party to native title proceedings. This reform should be implemented by amending s 24(1AA) of the Federal Court of Australia Act 1976 (Cth).
11.126 Section 24(1AA) of the Federal Court of Australia Act provides that an appeal must not be brought from a judgment of the Federal Court if the judgment is
(b) a decision to do, or not to do, any of the following:
(i) join or remove a party …
11.127 As a result, an appeal cannot be made from a decision to join, or not to join, a person as a party to native title proceedings under s 84(5). Similarly, an appeal cannot be made from a decision to dismiss, or not to dismiss, a party from native title proceedings under s 84(8).
11.128 Section 24(1AA) creates a barrier to justice for participants in the native title system. Due to the operation of s 24(1AA), a person who is not joined to, or is dismissed from, proceedings may have no further opportunity to represent their interests to the Court. Section 24(1AA) similarly imposes barriers to justice for other parties, who have no avenue of appeal if another person is joined or is not dismissed. The limitations imposed by s 24(1AA) are particularly significant given the in rem nature of native title proceedings.
11.129 The requirement that an appeal from such decisions be subject to the leave of the Court would be an important way to ensure that the appeals process is expeditious and does not place undue burdens on the applicant or other parties. In the absence of a leave requirement, an appeal on a joinder or dismissal decision could be made that was substantially without merit, simply to delay proceedings.
11.130 Section 24(1AA) was introduced in order to ‘ensure the efficient administration of justice by reducing delays caused by appeals from these decisions’ by removing the right of appeal for certain ‘minor procedural decisions’. The Explanatory Memorandum states that the types of decisions referred to in s 24(1AA) are
minor procedural decisions [that] are interlocutory in nature, from which there should be no avenue of appeal. Clarifying that there is no right to appeal for these types of matters will ensure the efficient administration of justice by reducing delays caused by dealing with vexatious appeals from these decisions.
11.131 The ALRC considers that a decision to join, not join, dismiss, or not dismiss a party in the context of native title determination proceedings should not be considered a ‘minor procedural decision’, given the nature of native title proceedings. The recommended reform would not affect other areas of law where a decision to join, not join, dismiss, or not dismiss a party might be considered a ‘minor procedural decision’—for example, no appeal would be available from a decision to join or remove a party in proceedings under consumer law.
11.132 While allowing appeals from joinder or dismissal decisions in the native title context is consistent with the beneficial purposes of Native Title Act, the requirement for seeking leave to appeal ensures the efficient administration of justice. A leave requirement is a matter for serious consideration by courts, and appeals are not granted as a matter of course. However, where there are suitable grounds for an appeal, the ALRC considers that it would be in the interests of justice to allow that appeal.
11.133 This approach was supported by a number of stakeholders. NQLC, however, did not support it, expressing a concern that an appeal right from an interlocutory decision, such as a joinder or dismissal decision, ‘has the potential to cause delay and add to the costs of proceedings’. The ALRC considers that the leave requirement will effectively preclude excessive delay in proceedings.
11.134 QSNTS did not support the proposal, noting that it would create a distinction between native title proceedings and other proceedings in the Federal Court. However, the ALRC considers that the nature of native title proceedings justifies a departure from other Federal Court proceedings on this point. Unlike many other types of proceedings in the Federal Court, native title proceedings typically involve large numbers of parties and a final determination of interests.
This section was amended in 2015 by the Federal Courts Legislation Amendment Act 2015 (Cth). Prior to the amendment, the section provided that an appeal must not be brought against ‘a decision to join or remove a party, or not to join or remove a party’.
It has been stated, with respect to exercises of judicial discretion relating to practice and procedure—such as the joinder of parties—that ‘if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal’: Re Will of F B Gilbert (deceased) 46 SR(NSW) 318, 323. See generally Bernard Cairns, Australian Civil Procedure (Thomson Reuters (Professional) Australia, 8th ed, 2009) [18.400].
Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth) 18, 81. See also Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, –.
Explanatory Memorandum, Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth) 18, .
Explanatory Memorandum, Federal Courts Legislation Amendment Bill 2014 (Cth).
Cairns, above n 164, [18.400].
AIATSIS, Submission 70; NTSCORP, Submission 67; Minerals Council of Australia, Submission 65; Law Council of Australia, Submission 64; Yamatji Marlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; A Frith and M Tehan, Submission 52; The Chamber of Minerals and Energy of Western Australia, Submission 49; Native Title Services Victoria, Submission 45; Law Society of Western Australia, Submission 41.
North Queensland Land Council, Submission 42. A similar concern—that introducing an avenue for appeal ‘may increase the volume of resources directed towards what are, in one sense, administrative matters, rather than towards the securing of a determination’—was raised by Central Desert Native Title Services. However, Central Desert also noted that they did not ‘outright oppose’ the introduction of an avenue of appeal: Central Desert Native Title Service, Submission 48. See also South Australian Government, Submission 68.