FEDERAL COURT OF AUSTRALIA Grey v State of Western Australia [2012] FCA 846 Citation: Grey v State of Western Australia [2012] FCA 846 Parties: LOUISA GREY AND REGINA ROSE GREY v STATE OF WESTERN AUSTRALIA File number: WAD 132 of 2012 Judge: GILMOUR J Date of judgment: 9 August 2012 Catchwords: No catchwords Legislation: Native Title Act 1993 (Cth) s 29 Federal Court Rules 2011 (Cth), r 26.12(4) Determined on the papers: 9 August 2012 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Solicitor for the Applicant: Chalk & Fitzgerald Lawyers & Consultants Solicitor for the Respondent: State Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 132 of 2012 BETWEEN: LOUISA GREY AND REGINA ROSE GREY Applicant AND: STATE OF WESTERN AUSTRALIA Respondent JUDGE: GILMOUR J DATE OF ORDER: 9 AUGUST 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant, pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), be granted leave by the Court to file a notice of discontinuance (Form 48) in relation to the native title determination application. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 132 of 2012 BETWEEN: LOUISA GREY AND REGINA ROSE GREY Applicant AND: STATE OF WESTERN AUSTRALIA Respondent JUDGE: GILMOUR J DATE: 9 AUGUST 2012 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant, pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), seeks a grant of leave to file a notice of discontinuance in relation to its native title determination application. 2 Both parties, namely the applicant and the State of Western Australia (the State), were content for me to deal with this matter on the papers. 3 The application is supported by affidavits of James Konrad Walkley, solicitor for the applicant, sworn on 19 July and 2 August 2012 respectively. 4 Mr Walkley, in his affidavit sworn on 19 July, deposes that the primary intent of these proceedings was to secure the procedural protections available under the Native Title Act 1993 (Cth) (the Act) for the native title rights and interests of Louisa Grey and her children (the Grey Family Members) from extinguishment by compulsory acquisition by the State for the purpose of the proposed Browse Liquefied Natural Gas Precinct, north of Broome. 5 The means for the Grey Family Members to obtain these protections was to file a native title determination application on or before 20 June 2012, and for that application to be accepted by the Registrar of the National Native Title Tribunal (NNTT) for registration pursuant to s 190A of the Act. As the proposed compulsory acquisition was notified by the State under s 29 of the Act, the Registrar, or her delegate, was obliged to use best endeavours to finish considering the claim made in the native title application by the end of 20 July 2012. 6 Further, Mr Walkley deposes that he was advised by officers of the NNTT on 4 July 2012 that the delegate of the Registrar, who was to apply the registration test, had formed a preliminary view that the application was unable to be registered. The applicant was then given an opportunity to respond by 12 July 2012 to submissions by the State and by Woodside Energy Limited that had been made in relation to the application of the registration test. 7 Mr Walkley then states that in the course of preparing submissions to the delegate in response, it became apparent that the application was unable to be registered in its present form. On the applicant's instructions, Mr Walkley advised the NNTT case manager, Ms Scott of this conclusion verbally on 12 July 2012 and asked her to inform the delegate of this. Mr Walkley advised Ms Scott further that, as a consequence, the applicant's intention was to seek leave to discontinue the application. This position was then communicated to the Registrar in writing on 13 July 2012. 8 An application for joinder was filed by Woodside Energy Limited on 28 June 2012, and was listed for hearing on 23 July 2012, but was vacated at the request of the parties in light of this foreshadowed application for discontinuance. Hence, the State is the only respondent and does not oppose the application for leave to file a notice of discontinuance nor does it seek any costs order. 9 In all of those circumstances, I am satisfied that there is a proper basis for leave to be given for the discontinuance of the native title determination application. I will so order. There will also be an order that there be no order as to costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 24 August 2012