Case: Gamogab v Akiba [2007] FCAFC 74
Outcome: applied
The matters for consideration under s 84(5) of the Act, as in force, in respect of Worimi's motion are: (1) Does Worimi have an interest within the meaning of s 84(5) of the Act? (2) May that interest be affected by a determination in the proceedings? (3) In any event, should the Court exercise its discretion to join Worimi as a respondent? ( Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [32] not the subject of comment by Gyles and Sundberg JJ on appeal in Gamogab v Akiba [2007] FCAFC 74). 31 The Court has a discretion under s 84(5) whether or not to join a person whose interests may be affected by a determination in the proceedings. That discretion is not, however, "at large" ( Gamogab at [56]). Where the interest claimed is a positive claim to native title, it is relevant to that discretion that no such determination can be made unless the requirements of ss 61, 62 and 251B are complied with ( Kokatha at [22] [23]; Moses v State of Western Australia [2007] FCAFC 78 at [18] ; Kokatha People at [45]) and the person or group of persons has a s 61 application on foot in the proceedings ( Kokatha at [23]; Kokatha People at [46]). 37 There is no evidence of prejudice to the Land Council if Worimi be joined, other than that occasioned by delay. As discussed in Gamogab at [59], delay is unlikely of itself to constitute a basis to refuse joinder. Justice Gyles, with whom Sunderg J agreed, discussed the nature of the discretion to be exercised for joinder of a party who has reached the threshold as to affectation of interests. In Gamogab , as here, the Court was considering the application of s 84(5) prior to amendment, that being the section under which the primary judge had considered joinder. At [59] Gyles J said that, if the threshold is reached, the Court ' is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined '. Justice Gyles then observed, consistently with the ' in rem ' nature of the proceedings, that '[i] t would be odd in this day and age if delay in applying, in itself, were to radically prejudice (sic) a potential party '. His Honour emphasised at [60] that it is fundamental that an order which directly affects a third person's rights or liabilities should not be made unless the person is joined as a party. 38 However, the history of the proceedings is relevant. The Court has granted numerous adjournments over the objection of the Land Council (then in administration and represented by an administrator, Mr Hillig) to enable Worimi to prepare his case. Worimi initially declined legal representation which he later accepted and filed two successive claimant applications. As recently as 6 February 2007 he indicated, through his then counsel, that he intended to file another claimant application. This has not occurred. Despite the fact that the original application for joinder was filed on 23 August 2005, it has been stood over repeatedly to allow the claimant applications to be dealt with. 39 This non-claimant application, brought then by the Administrator of the Land Council, was filed on 31 December 2004. The delay attributable to Worimi's various applications based on his assertion of native title is of the order of 22 months. Worimi says that, if he is joined, he would make every effort to file any further evidence within 16 weeks. He later accepted the imposition of such a time limit for the filing of any further evidence on which he relies in the non-claimant application as a condition of joinder. Joinder may be permitted, subject to conditions ( Gamogab at [7]) and, in the circumstances, it would be reasonable to impose such a condition. Bearing in mind the time that has already elapsed and the end of the Court term, it is appropriate to direct that the further evidence be filed and served by 18 December 2007, a period of 14 weeks. 40 I am satisfied that the Court should exercise its discretion to join Worimi to the non-claimant application, subject to the condition limiting the time for filing of further evidence. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 September 2007 Counsel for Mr Dates: M Austin (Pro bono) Counsel for the Applicant: M Wright Solicitor for the Applicant: Watson Mangioni Lawyers Pty Ltd Solicitor for the First Respondent: Crown Solicitor for the State of NSW Counsel for the Second Respondent: S Phillips Solicitor for the Second Respondent: NSW Native Title Services Ltd Date of Hearing: 29 June 2007, 2 July 2007 Date of Final Submissions: 6 September 2007 Date of Judgment: 11 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1357.html