Case: Williams v Grant [2004] FCAFC 178
Outcome: followed
J (with whom North J at [1] and Dowsett J at [10] agreed) in Williams v Grant [2004] FCAFC 178 said, at [53]: 53. Section 66B assumes that the current applicant, who is sought to be replaced, had authority to bring the claim at the time the claim was made: s 66B(1)(a)(i). The hearing of a s 66B motion is not the proper occasion to explore the broader issue as to whether or not a native title determination application was properly authorised in the first place for the purposes of s 61 and s 251B of the Act. Such an issue can be explored either in the course of a strike-out application under s 84C of the Act, or at the trial of the application. Lander J discussed the operation of s 84C and the question of proper authorisation at [54] to [59] inclusive: 54 ... in this case, where the appellant contended that the first respondent was never authorised to bring the native title application, the appellant has adopted the correct procedure, which is to proceed under s 84C. 55 Section 84C(2) requires the Court to consider the application to strike out 'before any further proceedings take place in relation to the main application'. 56 That subsection recognises that if an application under s 84C is successful the application for native title will be struck out. Because of the possible consequences of the application, it is in all parties' interests that the application be heard before any other steps are taken in relation to the main application. The subsection requires the Court to 'consider the application made under subsection (1)'. The subsection does not require the Court to determine the application before any further steps are taken. The use of the word 'consider' without an obligation on the Court to also 'determine' the application is deliberate. 57 In some cases it will be appropriate to determine the application at the same time as it is considered. Where the application to strike out is obviously without merit then it may be dismissed immediately. Where the application is clearly a case that calls for relief under the section, recognising that relief will be provided sparingly as I have described it, then an order will be made dismissing the main application. In many cases, an applicant faced with an application under s 84C will apply to amend the application to cure an identified deficiency. For example, where an application is based upon an applicant's failure to comply with s 62 in supplying the details under that section, an applicant might respond by amending the application to make it comply. In those cases, the Court will not be called upon to determine the s 84C application. 58 In some cases it may be difficult to decide whether the application should succeed. For example, it may be difficult to decide, on the papers, whether the applicant has been authorised by the native title claim group. 59 In that case it may be appropriate to hear and determine the application under s 84C at the same time as the main application. ... If Ms Isaacs had authority as Elder to make the original application, as I hold on the authority of Williams v Grant s 66B assumes she had, she therefore had authority as Elder to decide on an altered composition of the applicant. For the above reasons, I am satisfied that it is proper to grant the relief sought by the notice of motion. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 11 March 2008 Counsel for the Applicant: Ms T Jowett Solicitor for the Applicant: Blackshield &amp; Co Counsel for the First Respondent: Ms H Bowskill Solicitor for the First Respondent: Crown Law Counsel for the Second Respondent: Mr P Flanagan SC Solicitor for the Second Respondent: Australian Government Solicitor Solicitor for the Fourth Respondent: K Brown Solicitor for the Sixteenth Respondent Gore &amp; Associates Date of Hearing: 25 June 2007 Date of Judgment: 11 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/316.html