Case: Gudjala People #2 v Native Title Registrar [2007] FCA 1167
Outcome: cited
In Gudjala People #2 v Native Title Registrar [2007] FCA 1167 ( Gudjala People ), in the context of an examination of the Registrar's duty under the Act, Dowsett J commented (at [14]): Sub-section 190A(1) required the Delegate to consider the Application. In effect he had to decide whether to accept it for registration pursuant to s 190. Sub-section 190A(5A) provides: Before the [NT] Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules . 34 In my opinion, Item 90(2) similarly imposes upon the Registrar (or his delegate) a requirement to examine any claim satisfying the conditions of Item 90(1) against the requirements of ss 190, 190A, 190B, and 190C in order to decide whether it should be on the Register. 35 On this ground, the applicants argue that, even if the Registrar was required to apply the registration test to the applicants' claim, he was not empowered to remove the claim from the Register other than in circumstances as provided for in s 190 of the Act. The applicants submit that the only power of the Registrar to remove claims from the Register is contained in s 190(4) of the Act, which provides: Entries removed or amended after determination, decision or withdrawal (4) If: (a) the Registrar is notified under section 189 or 189A of a decision or determination covering a claim; or (b) the Registrar is notified by a recognised State/Territory body of a decision or determination covering a claim; or (c) the Registrar is notified that an application that contained a claim has been withdrawn; the Registrar must, as soon as practicable: (d) if the application in question has been withdrawn, dismissed or otherwise finalised--remove the entry on the Register that relates to the claim; or (da) if an approved determination of native title is made to the effect that native title exists in relation to an area: (i) but no determination has yet been made under section 56; or (ii) a determination has been made under section 56 that the native title rights and interests are to be held by the common law holders, but no determination has yet been made under subsection 57(2) of which prescribed body corporate is to perform the functions mentioned in subsection 57(3); amend the entry on the Register that relates to the claim so that it reflects that fact; or (e) in any other case--amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised. 54 In Gudjala People (supra), Dowsett J considered the procedural fairness requirements imposed upon the Registrar in considering an application under s 190A in the normal course of events; that is, where a normal application had been made to the Registrar to have an application entered on the Register. In that case, the Registrar's delegate had advised the applicant of some, but not all, deficiencies in its application. The applicant argued that this breached the rules of procedural fairness. His Honour said (at [21]): In advising the applicant of the shortcomings in the Application, the Delegate was presumably exercising the power conferred by subs 190A(5A). However, he was not obliged to do so. To extend to the applicant an opportunity to re-formulate the claim before deciding whether or not to accept it for registration was a desirable, but not necessary, course. Even if the Delegate had not advised the applicant of all matters causing concern, that would not have led me to conclude that he was bound to proceed upon the basis that matters not addressed should necessarily be resolved in ways which were favourable to the applicant. The applicant was warned that it must satisfy the requirements of the Act. The Delegate directed attention to his major areas of concern. There is nothing in this point. 55 However, it must also be noted that the matter presently before the Court has a different historical context from that in Gudjala People . Aside from the additional requirements imposed on the Registrar by Item 90, it is important to note that the applicants' claim was already entered onto the Register, thereby conferring upon the applicants the various rights that come with registration. The applicants have enjoyed those rights for some 11 years. That context informs the requirement in Item 90(4)(c) for the Registrar to advise the applicant that he is considering the claim, and to provide the applicant with a "reasonable opportunity" to provide any further information or other things to the Registrar in his consideration of the claim. 56 The correspondence between the delegate and the applicants relevant to this issue is set out at [6]-[11] above. The relevant chronology is as follows: &#8226; The Registrar wrote to the applicants on 24 April 2007 informing them that their claim was to be considered against the registration test; why it was to be considered; that they could provide further information; how their claim could be amended; and that the Registrar wished to undertake the test as soon as possible due to its age. &#8226; The case manager wrote to the applicants on 14 May to tell them that the claim would be tested in September 2007, and that any amendments or additional information needed to be filed by 17 August 2007. &#8226; The case manager wrote a reminder letter to the applicants on 7 August 2007, noting that the claim was still to be tested by 30 September 2007, and that information had to be filed by 17 August 2007. &#8226; The applicants wrote an email to the case manager on 17 August 2007 requesting an extension of time to amend the claim and provide further information. &#8226; The delegate refused to change the time for the testing of the claim, but gave the applicants until 24 August 2007 to provide further information. This was communicated to the applicants on 20 August 2007. 57 The applicants' arguments rest in large part upon the fact that they were, at the time, not legally represented. This was the case until after the delegate made the decision on the extension of time, and, the applicants argue, should have been apparent. The applicants argue that, without such representation, they did not know what amendments might have to be made to the application if it was to pass the registration test, and were therefore reliant on assistance from the National Native Title Tribunal. 63 It is worthwhile noting that the applicants have not claimed as a ground of their application that the delegate failed to take into account relevant considerations in making the decision. Dowsett J in Gudjala People commented on an application which confused errors in the decision-making process and breaches of procedural fairness, observing that (at [13]) "errors alone will not generally amount to a denial of procedural fairness." In this instance, supposedly relevant considerations may have some bearing on the question of procedural fairness, but only to the extent that they inform the "circumstances of the case". 64 The question for the Court on this occasion is therefore whether the delegate "acted fairly" and gave the applicants a "reasonable opportunity" to amend their application and provide further materials to the Registrar. In considering this question, I do not agree with the contention of the applicants that the obligation upon the Registrar to consider claims for registration within a year has any application. It seems to me that, by imposing upon the Registrar a nominal deadline of one year within which to consider claims, Item 90(2) clearly aims to have claims for registration tested and decisions made as quickly as the resources of the Tribunal, the applicants and relevant representative bodies will allow. It follows that that time period is not, in my opinion, relevant to any consideration of whether an applicant has been given a reasonable opportunity to submit materials to the Registrar. 65 The Registrar first put the applicants on notice of the fact their claim would be tested on 24 April 2007. That letter informed the applicants that they would have the opportunity to amend their claim, however it was not clear from the letter the kind or extent of changes that would need to be made, or the time frame within which the changes would have to be made.