Proposal 11–5 Section 24(1AA) of theFederal 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 to join, or not to join, a party under s 84(5) or (5A) of the Native Title Act.
Proposal 11–6 Section 24(1AA) of theFederal 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 to dismiss, or not to dismiss, a party under s 84(8) of the Native Title Act.
11.55 Section 24(1AA) of the Federal Court of Australia Act 1976 (Cth) prohibits appeals from certain judgments of the Court, including ‘a decision to join or remove a party, or not to join or remove a party’. 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) or (5A). 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).
11.56 Section 24(1AA) may create 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) may similarly impose a limit on access 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. Since native title proceedings result in determinations of the rights and interests of all persons in respect of the claim area, it is important to ensure that all persons are given an adequate opportunity to represent their interests.
11.57 Excluding native title proceedings from the scope of s 24(1AA) would set native title proceedings apart from other proceedings in the Federal Court. Section 24(1AA) would continue to apply in other areas of law. For example, no appeal would be available from a decision to join or remove a party in proceedings under consumer law. However, given the interests involved in native title proceedings, the ALRC considers that providing an avenue of appeal in the specific context of native title proceedings is warranted.
11.58 A requirement that an appeal from such decisions be subject to the leave of the Court would be an important way ensure that the appeals process was not misused. In the absence of a leave requirement, a party or other person could, for example, appeal a joinder or dismissal decision without merit, simply to delay proceedings. Section 24(1AA) was specifically introduced in order to remove the right of appeal for ‘minor procedural decisions for which there should be no avenue of appeal’, in order to ‘ensure the efficient administration of justice by reducing delays caused by appeals from these decisions’. While it may be desirable to allow appeals from joinder or dismissal decisions in the native title context, it is also desirable to continue to ensure the efficient administration of justice.
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, .
Ibid 18, 81. See also Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261, –.