Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77
Outcome: referred to
It is common ground that any order on the motion would be an interlocutory order, so that ordinary principles governing summary dismissal of a proceeding should apply. That is, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made: Williams v Grant [2004] FCAFC 178 at [48] - [49] per Lander J (with whom North and Dowsett JJ agreed); Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 89 [51] per Stone J. The general approach, therefore, is consistent with the approach of Courts in other applications to summarily dismiss proceedings, namely that they should be dismissed only in very clear cases: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. As in Williams v Grant at [84] and [87] per Lander J, the first applicants seeking to strike out the Town of Batchelor No 2 application under s 84C have the onus and responsibility of establishing that the second applicants were not authorised by the native title claim group to bring that claim, and so to make out a very clear case of want of authorisation, or a clear failure to comply with one or other of the requirements of ss 61 , 61A or 62 . 21 The objection is not simply that hearsay evidence cannot be received on an application such as the present. As I have said, it is common ground that the application is an interlocutory one in respect of which hearsay evidence may be admitted by reason of s 75 of the Evidence Act 1995 (Cth): see e.g. Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at 92 [64] per Stone J. Section 75 requires evidence of the source of the hearsay material within the affidavit. It is contended that such evidence has not been given, so that that particular part of Mr Petherick's affidavit of 23 April 2007 should not be received, or alternatively that it should not be received by reason of s 135 of the Evidence Act . There is no explanation as to why Ray Petherick should not have given evidence of those facts directly. There is nothing to verify on his part the reliability of his diary, although it has considerable detail within it. However, I think it identifies the source of the information, namely Ray Petherick and there is some independent confirmation of the events to which it refers by Captain Wodidj having signed the affidavit on 10 April 2006 which was filed in support of the Town of Batchelor No 2 application as amended. It is a different question as to the weight to be given to that affidavit of Captain Wodidj generally upon the whole of the evidence. 22 I propose to receive that part of the affidavit of Mr Petherick, but I indicate that I do not think it carries much weight. There is direct evidence from Captain Wodidj as to the fact that he did not intend to authorise the bringing of the Town of Batchelor No 2 application as amended as an authorised applicant or on his behalf as an asserted member of that native title claim group, or to authorise the claim to be brought as a senior member of the Emu Clan. He plainly disavows any interest as a member of any native title claim group which may have native title rights and interests in respect of the Batchelor area. Nevertheless, there is some evidence of attempts made by Thomas Petherick through Ray Petherick to secure Captain Wodidj's agreement to being a nominated applicant for the claim group, and to indicate his preparedness to be a member of the claim group. 23 For reasons which appear below, nothing turns upon the receipt of that evidence in all the circumstances.