Case: Griffith University v Tang (2005) 31 CLR 99
Outcome: discussed
In my view s 66 of the NT Act, for the reasons I have given above, proceeds on the basis that a decision to accept for registration a native title claim under s 190 not only may, but must, be made before competing registered native title claimants in respect of the same claim area are notified of the competing claim. In Griffith University v Tang (2005) 31 CLR 99 Gummow, Callinan and Heydon JJ at 117-118 referred to there generally being a relationship between the questions of standing and, in the context of procedural fairness, the right to be heard. However, in my view s 66(6)(a) makes it plain that in the normal course a competing registered native title claimant is not entitled to be given the opportunity to be heard when the Registrar is considering whether to accept for registration a native title determination application over the same area of land. The mere fact of having standing to challenge the Registrar's decision does not mean that the Town of Batchelor No 1 applicants were entitled to the opportunity to make submissions to the Registrar and to present material to him when he was considering such a decision. 27 However, there are particular features in the present matter which take the position further. The Town of Batchelor No 1 applicants were in fact aware of the Town of Batchelor No 2 application, and that the Registrar would in due course consider whether to accept it for registration. The NLC, as the relevant representative body for the area covered by both applications, was entitled to be given a copy of the Town of Batchelor No 2 application and other documents relating to it pursuant to s 66(2A) of the Act. That may be how the Town of Batchelor No 1 applicants came to learn of the later application. The NLC had certified the Town of Batchelor No 1 application. The solicitors acting for the NLC were the same solicitors as were acting for the Town of Batchelor No 1 applicants. Those solicitors had indicated a desire to make a submission to the Registrar on whether the Town of Batchelor No 2 application should be accepted for registration. There was then an e-mail exchange between the Registrar by his officers and those solicitors on 1 December 2005 in which it was acknowledged that such a submission was to be made, and that such a submission would be made after the proposed amendment to the Town of Batchelor No 2 application. The officer of the Registrar indicated that the time within which the submission should be made and material presented would be notified to the NLC once the amendments had been effected. I accept that, on the evidence, the proposed submission in opposition to the potential registration of the Town of Batchelor No 2 claim was delayed until after the proposed amendment of that claim and that the Registrar gave notification that the Registrar was considering whether to accept for registration the amended Town of Batchelor No 2 application. I also accept, as I have said above, that had such a submission been made it would have raised significant material for the Registrar's consideration relevant to whether the Town of Batchelor No 2 application should have been accepted for registration. 28 It is that combination of particular circumstances which, in my view, gave rise to a legitimate expectation on the part of the Town of Batchelor No 1 applicants and an obligation on the part of the Registrar that he would give the NLC and its solicitors notification that he was considering whether to accept for registration the Town of Batchelor No 2 application and a time within which to take the opportunity to make submissions and to provide information in relation to it. I am mindful of the fact that relevant communications on 1 December 2005 were between the solicitor for the Town of Batchelor No 1 applicants and for the NLC on the one hand, and an officer of the Registrar, but referred only to a submission from the NLC. In my view, there was such a coincidence of interest between the Town of Batchelor No 1 applicants and the NLC in the present circumstances, a coincidence which was apparent to the Registrar from the Town of Batchelor No 1 application having been certified by the NLC, that the opportunity to make a submission and to present additional information was one which was an entitlement to procedural fairness which covered both the NLC and the Town of Batchelor No 1 applicants. 29 It is accepted that that opportunity was not provided by the Registrar. 30 In my judgment, therefore, there was a failure to accord procedural fairness to the Town of Batchelor No 1 applicants in the particular circumstances before the decision was made by the Registrar to accept the Town of Batchelor No 2 application for registration. The nature of the submission, and additional information, which may have been provided in response to such an opportunity might have affected the outcome of the Registrar's decision. 31 I accordingly propose to set aside the Registrar's decision on that ground. 32 I will briefly refer to the other two grounds upon which the Registrar's decision is attacked.