21.10.2014

Dismissal of parties under s 84(8)

Proposal 11–4          The Native Title Act should be amended to clarify that the Federal Court’s power to dismiss a party (other than the applicant) under s 84(8) is not limited to the circumstances contained in s 84(9).

11.52   Proposal 11–4 would clarify that the Court, when considering whether to dismiss a party under s 84(8), may consider a wider range of circumstances than those set out in s 84(9). Section 84(8) of the Act provides that the Federal Court may at any time order a person, other than the applicant, to cease to be a party to the proceedings. Section 84(9) provides:

The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

         (i)      the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

         (ii)     the person’s interests are properly represented in the proceedings by another party; or

(b)     the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

11.53   In Watson v Western Australia (No 5), Gilmour J dismissed a party that indicated it would, apparently without basis, refuse its consent to a consent determination. In reaching the decision to dismiss that party, Gilmour J had regard to a range of matters, such as:

  • the purpose behind the Native Title Act, being to encourage the resolution of native title claims through conciliation and negotiation;
  • the time, money, and other resources which had been invested in the application and which would be required if the consent determination were delayed;
  • the inconvenience on the claimant group if the consent determination were not to proceed; and
  • the proximity of the remaining parties to reaching settlement.

11.54   AIATSIS suggested that, in light of Watson v Western Australia (No 5), there may be uncertainty as to whether the Court must take the matters of s 84(9) into consideration when making a decision to dismiss a party, or whether those matters were merely possible considerations for the Court. Proposal 11–4 would remove this uncertainty.[52]