TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553

FEDERAL COURT OF AUSTRALIA

TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 File numbers: WAD 6005 of 2003 WAD 750 of 2015

Judge: RARES J

Date of judgment: 10 March 2016

Catchwords: PRACTICE AND PROCEDURE – abuse of process – inherent power of court to prevent abuse of process and protect itself from such abuse – distinctions and common aspects of protective and summary powers to dismiss proceedings as abuse of process – substantial unexplained delay by neighbouring party in commencing native title proceedings – new proceedings directly affecting conduct and possible result of part-heard trial – neighbouring party knowing of existing proceedings for many years and permitting them to continue after elders of both claim groups had earlier agreed common boundaries – new claim now over substantial overlapping area – false explanation for some delay – necessity to hear new claim with part-heard trial by force of s 67(1) of Native Title Act 1993 (Cth) – hearing of new claim would have significant impact on and require retaking of evidence in part-heard trial – where new claim would cause significant prejudice to current proceedings – where some relevant witnesses now dead PRACTICE AND PROCEDURE – summary judgment – application for summary judgment striking out an overlapping native title claim pursuant to s 31A of Federal Court of Australia Act 1976 (Cth) – where new claim and evidence on summary dismissal application fails to assert any spiritual connection to the overlap land claimed – where juridical basis for claim to native title is essentially spiritual connection of claim group to land and waters claimed – where no evidence of new claimant's spiritual connection to land and waters – whether proceeding has any reasonable prospects of success PRACTICE AND PROCEDURE – consideration of case management principles under ss 37M and 37N of Federal Court of Australia Act 1976 (Cth) – where substantial delay in bringing overlapping native title claim – where significant prejudice to current proceedings if new claim proceeds – where long running native title proceedings currently on foot would be significantly disrupted NATIVE TITLE – application to be joined as party to a native title proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth) – whether applicant a person whose interests might be affected by determination of native title – where applicant for joinder also involved in another very recent native title application claiming area overlapping existing claim area – where overlapping native title claim dismissed as abuse of process and as having no reasonable prospect of success – where unexplained delay in bringing application for joinder – where no evidence that applicant for joinder had spiritual connection to land claimed