FEDERAL COURT OF AUSTRALIA

Lewis v State of Western Australia [2014] FCA 690 

Citation:	Lewis v State of Western Australia [2014] FCA 690	
		
Parties:	IRWIN TASMAN LEWIS AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS and FREDERICK TAYLOR SENIOR AND OTHERS ON BEHALF OF THE AMANGU PEOPLE v STATE OF WESTERN AUSTRALIA AND OTHERS	
		
File numbers:	WAD 6193 of 1998
WAD 6002 of 2004	
		
Judge:	BARKER J	
		
Date of judgment:	27 June 2014	
		
Catchwords:	NATIVE TITLE – application for joinder under s 84(5) Native Title Act 1993 (Cth) – whether respondent’s joinder to proceedings should be limited 	
		
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M
Native Title Act 1993 (Cth) s 84(3), s 84(5), s 84(8)

Petroleum and Geothermal Energy Resources Act 1967 (WA)
Petroleum Pipelines Act 1969 (WA) 	
		
Cases cited:	Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1
Dodd on behalf of the Gudjala People Core Country Claim # 1 v State of Queensland (No 2) [2013] FCA 787
Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; (2012) 204 FCR 542
Far West Coast Native Title Claim v South Australia (No 5) [2013] FCA 717
Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578
Murray on behalf of the Yilka Native Title Claimants v Western Australia [2010] FCA 595; (2010) 188 FCR 48
Murray on behalf of the Yilka Native Title Claimants v Western Australia (No 2) [2010] FCA 926
Watson v Western Australia (No 3) [2014] FCA 127
Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357; (2007) 164 FCR 181 	
		
Date of hearing:	Determined on the papers	
		
Date of last submissions:	22 April 2014	
		
Place:	Perth	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	48	
		
Counsel for the Applicant:	Mr M Meegan	
		
Solicitor for the Applicant:	Yamatji Marlpa Aboriginal Corporation	
		
Counsel for Origin Energy Developments Pty Limited:	Ms KR Lendich	
		
Solicitor for Origin Energy Developments Pty Limited:	Herbert Smith Freehills	
		
Counsel for the State of Western Australia:	Ms C Taggart	
		
Solicitor for the State of Western Australia:	State Solicitor’s Office	

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 6193 of 1998	
 
BETWEEN:	IRWIN TASMAN LEWIS AND OTHERS
Applicant

AND:	STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents

JUDGE:	BARKER J	
DATE OF ORDER:	27 JUNE 2014	
WHERE MADE:	PERTH	

THE COURT ORDERS THAT:

1.	Pursuant to s 84(5) of the Native Title Act 1993 (Cth), Origin Energy Developments Pty Limited be joined as a respondent party to these proceedings.  

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 6002 of 2004	
 
BETWEEN:	FREDERICK TAYLOR SENIOR AND OTHERS
Applicant
	
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents

JUDGE:	BARKER J	
DATE OF ORDER:	27 jUNE 2014	
WHERE MADE:	PERTH	

THE COURT ORDERS THAT:

1.	Pursuant to s 84(5) of the Native Title Act 1993 (Cth), Origin Energy Developments Pty Limited be joined as a respondent party to these proceedings.  

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 6193 of 1998

BETWEEN:	IRWIN TASMAN LEWIS AND OTHERS
Applicant

AND:	STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents

IN THE FEDERAL COURT OF AUSTRALIA		
WESTERN AUSTRALIA DISTRICT REGISTRY		
GENERAL DIVISION	WAD 6002 of 2004	
 
BETWEEN:	FREDERICK TAYLOR SENIOR AND OTHERS
Applicant
	
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent

JUDGE:	BARKER J	
DATE:	27 JUNE 2014	
PLACE:	PERTH	

REASONS FOR JUDGMENT
1		Origin Energy Developments Pty Limited seeks to be joined as a respondent party to these two proceedings, after the relevant period to be joined as a party as of right under s 84(3) of the Native Title Act 1993 (Cth) has ended. 
2		Origin holds interests in an exploration permit, production licences and pipeline licences in the claim area and says that further interests held by it in the claim area may be identified or granted in the course of these proceedings.
3		At a native title regional directions hearing on 4 April 2014, I accepted that it would seem appropriate for Origin to be joined as a respondent party to these proceedings. 
4		However, I raised with Origin’s solicitors whether this joinder should be limited to the interests disclosed in Origin’s interlocutory application and the affidavit of Katherine Jeanette Perincek, filed in support of this application on 1 April 2014.
5		I observed that native title proceedings often involve numerous respondent parties, some of which have quite limited interests, which would otherwise seem to be protected under the provisions of the Native Title Act. 
6		I invited Origin, the State of Western Australia and the claimants in both matters to make written submissions in relation to Origin’s joinder on limited terms. 
7		The question is whether Origin’s joinder to these proceedings should be limited to the interests disclosed in Origin’s interlocutory application and supporting affidavit filed on 1 April 2014. 
SHOULD ORIGIN’S JOINDER TO THESE PROCEEDINGS BE LIMITED?
8		Origin’s interlocutory application to be joined as a party to these proceedings is brought pursuant to s 84(5) of the Native Title Act.
9		In the matter Frederick Taylor Senior v State of Western Australia (WAD 6002 of 2004), Origin was joined to the proceeding on 15 September 2005 under s 84(3) of the Native Title Act.  However, following springing orders made on 28 July 2009, Origin did not file a notice confirming its intention to remain a party to the proceeding.  As a result, it was removed as a party on 1 September 2009, and now seeks to be joined (or re-joined) to the proceeding.
10		In the matter Irwin Tasman Lewis v State of Western Australia (WAD 6193 of 1998), however, Origin seeks to be joined to the proceeding at this subsequent stage for the first time. 
11		Section 84(5) of the Native Title Act relevantly provides that “[t]he Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.”
12		Origin submits that the power to join a party to native title proceedings is a discretionary power that requires a Court to properly consider the individual circumstances of each case: Far West Coast Native Title Claim v South Australia (No 2) [2012] FCA 733; (2012) 204 FCR 542 at [37].
13		Yet, according to Origin, this discretion is not “at large.” Origin says that where a prospective respondent party can point to a clear and legitimate objective they hope to achieve by being joined then it will generally be appropriate to exercise the Court’s discretion in favour of the application, unless there is some other factor, such as delay, which would weigh against the party’s joinder: Far West Coast Native Title Claim v South Australia (No 5) [2013] FCA 717 at [37].
14		Origin draws on the decision of Gyles J (Sundberg J agreeing) in Gamogab v Akiba [2007] FCAFC 74; (2007) 159 FCR 578 at 594, where his Honour stated that once a person has shown that their interests would be affected in the proceedings, the principal issue under s 84(5) is to assess any prejudice occasioned to the other parties or to the Court by the delay in applying to be joined.  Gyles J observed that “[i]t would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party.”
15		Origin notes that this decision was distinguished in Dodd on behalf of the Gudjala People Core Country Claim # 1 v State of Queensland (No 2) [2013] FCA 787.  Logan J found that allowing a party to be joined as contradictor would involve prejudice, as it involved the prospect of unravelling the existing progression toward a consent determination.
16		Origin submits that in circumstances where it was entitled to be joined as of right to the proceedings under s 84(3) of the Native Title Act, the Court must have a reason to impose a limitation on its joinder.  That is to say that the Court must identify some risk that would outweigh Origin being joined in the ordinary way. 
17		It says that the purpose of a joinder application is to ensure that a person’s interests are protected and this principle does not contemplate that a person should be joined only on a limited basis.
18		Origin observes that although concerns have been raised about the number of respondent parties involved in native title proceedings, there is nothing at present in the Native Title Act which requires that, in the ordinary course, a respondent’s participation in a native title matter should be limited.
19		It contends that no reason or circumstance has been identified by any party, or the Court, as to why Origin’s participation in these proceedings should be limited.  Origin says that there is no evidence that its joinder would cause prejudice to any party, no evidence of delay and no evidence that Origin has acted (or is likely to act) in an improper or unreasonable way. 
20		Origin argues that while these proceedings were commenced some years ago, this does not of itself indicate delay, as the proceedings are not at an advanced stage, no draft minute of proposed consent determination has been circulated and no orders have been made to program the matters to trial.
21		It says that no party has sought to limit its joinder to the proceedings, and no orders have been made in these proceedings to limit the participation of any other respondent parties.
22		Further, Origin contends that there is no suggestion that it will conduct itself unreasonably, and accepts that it has an obligation to conduct itself in a manner consistent with the overarching purpose of civil litigation set out in s 37M of the Federal Court of Australia Act 1976 (Cth). 
23		It submits that if its participation in the proceedings is found to be unreasonable in the future, this can be addressed at a later stage, rather than pre-empting the manner in which it will participate in the proceedings.  
24		As to Origin’s interests in the claim area, the first affidavit of Ms Perincek filed on 1 April 2014 states that Origin and ARC (Beharra Springs) Pty Ltd holds exploration permit 320 under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and this exploration permit overlaps the claim area in both proceedings.
25		Ms Perincek’s second affidavit dated 11 April 2014, and the affidavit of Daniela Tonan dated 23 June 2014 states that further searches reveal that Origin also holds the following interests in the claim areas:
(1)	production licences L1, L2, L11 and L14 under the Petroleum and Geothermal Energy Resources Act 1967 (WA); and
(2)	pipeline licences PL18 and PL64 under the Petroleum Pipelines Act 1969 (WA).
26		Origin says that its searches in the claim area are not complete and it may be that it also holds additional interests.  It notes that it has applied for a petroleum production licence in respect of two graticular blocks within exploration permit 320 and other applications might also flow which would alter the precise nature of its interests in the area.
27		Origin submits that determinations may be made in these proceedings which would affect its identified interests and its potential future interests in the claim area. 
28		It says that a limitation on the joinder might cause prejudice to Origin, as this could hinder its participation in the litigation of issues or in mediation, while other respondents are not so limited.
29		Origin contends that if its joinder is limited and it subsequently identifies any further interests in the claim area beyond the interests disclosed in Ms Perincek’s affidavits, it would need to file a further interlocutory application seeking to vary the joinder orders.  According to Origin, this would have implications in terms of costs for Origin, the Court’s time and the time and costs for other parties. 
30		The State also filed written submissions in relation to Origin’s joinder application, adopting several paragraphs of Origin’s outline of submissions.  Its position is that a limitation on joinder is unnecessary and has the potential to create inefficiency and prejudice.
31		The State agrees with Origin that these proceedings should be distinguished from Watson v Western Australia (No 3) [2014] FCA 127 (Watson).  In that case, a limitation on the scope of Oil Basin Ltd’s participation in the proceedings was ordered.  However, according to the State and Origin, this order must be viewed in its context, having regard to the stage and the conduct of the proceedings:
(1)	Oil Basins Ltd had received the applicant’s anthropological report to be relied upon at trial and had, for various reasons, accepted (or elected not to contest) the applicant’s claim to possess native title rights and interests in the claim area;
(2)	the proceeding had been subject to programming orders and it was only Oil Basins Ltd that sought to contest connection in circumstances where it, inter alia, did not propose to lead expert evidence-in-chief;
(3)	in putting that matter in issue, Oil Basins Ltd never sought to explain to the Court why it took issue with the issue of connection; and
(4)	the applicant had brought the interlocutory application and the issue before the Court was whether Oil Basins Ltd should be removed as a party entirely or whether the proposed limitations would be appropriate.
32		They say that Watson is not authority for the proposition that limitation is appropriate in this case, where there is nothing in Origin’s conduct or the stage of the proceedings to support an order that its participation be limited.
33		According to the State, the Native Title Act does not, on its face, confer a power on the Court to limit the role a party is otherwise entitled to play in a proceeding.  Rather, as the decision in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 (Byron) makes clear, the State says that the Native Title Act does not create different classes of parties in native title proceedings with different rights. 
34		In support of this proposition, the State draws on Black CJ’s comments in Byron at 32:
The general legislative intention in respect of the provisions (of the NTA) as to parties is clear. A native title determination, in any particular case, might affect different persons and their interests in a multiplicity of ways. Consequently, the legislature has ensured that all persons whose interests may be affected by a determination are entitled to be parties to the application and thereby be afforded the opportunity to be heard in relation to it before it is finally determined by the Court. The right of veto of any party in the NNTT (National Native Title Tribunal) is, in many respects, a substantive right. However, it gives effect to the legislative intention that there be no final determination of native title against persons whose interests may be or are affected by the determination sought, without those persons having been afforded the opportunity of being heard in the NNTT or the Court.
(Emphasis in original.)
35		The State adds that the number of respondent parties involved in these proceedings has not been said to have created any difficulty for the claimants or any other party. 
36		It says that difficulties associated with interpreting the Court’s joinder orders would have the very real potential to distract the Court and the parties from the substantive issues to be resolved in the proceedings. 
37		In the State’s view, any concerns about the efficient and orderly progression of the proceedings could better be achieved by joining Origin to the proceedings in the ordinary manner and relying upon the inherent case management powers of the Court.
38		The State submits that it is uncontroversial that the Court retains inherent jurisdiction to case manage proceedings before it, including by giving directions about practice and procedure.  It says that if a party causes delay or acts unreasonably in a proceeding, the Court can deal with this in a number of ways, including by dismissing a party from the proceeding under s 84(8) of the Native Title Act.
39		The State says that it is not necessarily of assistance to have a variety of limitations on parties’ status or scope of joinder.  Rather, by joining parties in the ordinary manner, it submits that the scheme of the Native Title Act is realised; the Court remains able to oversee and direct the steps to be taken in the proceeding; and the difficulties which have been identified are avoided.
40		The applicant, on behalf of the Amangu People in the matter WAD 6002 of 2004, also filed submissions in relation to Origin’s joinder application.
41		The Amangu People submit that any limitation on the scope of Origin’s joinder to the proceedings should not be expressed in a way that would increase unnecessary administrative obstacles for the parties or the Court.  They note that there is validity in Origin’s point that it may discover or acquire further rights in the claim area in the future and submit that the proposed joinder order could be worded as follows:
Origin Energy Developments Pty Limited be joined as a respondent party to these proceedings, limited however to:

(a)	the interests disclosed in the interlocutory application and supporting affidavits of Ms Perincek filed 1 April 2014 and Ms Tonan filed on 25 June 2014;
(b)	any future rights or property acquired by Origin Energy Developments Pty Ltd which relate to the interests in (a); and
(c)	any future rights acquired by Origin Energy Developments Pty Ltd under the Petroleum and Geothermal Energy Resources Act 1967 (WA) or Petroleum Pipelines Act 1969 (WA).
42		The Amangu People accept that the Court has discretion as to whether to join a party to proceedings, including whether any limitation on a party’s involvement is appropriate.  They do not accept the State’s contention that a person is “either to be a party, with all of the rights and obligations that status confers, or they are not.  There is no ‘in between’ under the [Native Title Act]”. 
43		Instead, they refer to several examples where the Court has placed conditions on a party’s involvement or status in proceedings:
(1)	only being able to address the matters listed in s 225(c) and (d) of the Native Title Act relevant to the party’s petroleum exploration permit: Watson at [61] and [65];
(2)	limiting the time for filing of evidence: Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357; (2007) 164 FCR 181 at [38]-[40];
(3)	requiring the party to better identify the interests they have in the proceedings: Murray on behalf of the Yilka Native Title Claimants v Western Australia [2010] FCA 595; (2010) 188 FCR 48 at [101];
(4)	parties with identical interests being represented through one person: Murray on behalf of the Yilka Native Title Claimants v Western Australia (No 2) [2010] FCA 926 at [14].
44		The Amangu People agree that even if no limitation is placed on a party’s joinder or role in proceedings, the Court has the inherent power to control a party’s future involvement in the proceedings.
45		In my view, in all the circumstances of each case, Origin is entitled to the joinder orders that it seeks.  
46		There is no reason in the present circumstances why Origin should not be joined as a respondent party without limitation.  
47		Thus, given the circumstances of this case, there is no need to consider further the circumstances in which the discretionary power of the Court to order joinder may be exercised to limit the basis upon which a party is joined as a respondent in a claimant application under the Native Title Act.
48		There will be orders as asked.  
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.	

Associate:

Dated:	27 June 2014