Marianne Velickovic & Ors on behalf of Widji/Western Australia/Raymond James Francis, Wieslaw Wozniak, Brian James Mills

NATIONAL NATIVE TITLE TRIBUNAL

Marianne Velickovic & Ors on behalf of Widji/Western Australia/Raymond James Francis, Wieslaw Wozniak, Brian James Mills, [2011] NNTTA 130 (5 July 2011)

Application No: WO10/1652
IN THE MATTER of the Native Title Act 1993 (Cth)
-and-
IN THE MATTER of an inquiry into an expedited procedure objection application
Marianne Velickovic & Ors on behalf of Widji (native title party)
-and-
The State of Western Australia (Government party)
-and-

Raymond James Francis, Wieslaw Wozniak, Brian James Mills (grantee party)

DECISION TO DISMISS OBJECTION APPLICATION
Tribunal:Hon C J Sumner, Deputy President
Place:Perth
Date of dismissal: 13 June 2011
Date of reasons: 5 July 2011

Catchwords: Native title – future act – proposed grant of prospecting licence – expedited procedure objection application – failure to comply with directions – springing order dismissing expedited procedure objection application in event of non-compliance – objection application dismissed.

Legislation:Native Title Act1993 (Cth) ss 29, 148(b)
Cases:Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner
Representative of the
native title party: Mr Jerome Frewen, Desert Management Pty Ltd
Representative of the
Government party: Mr Clyde Lannan, Department of Mines and Petroleum

Representative of the

grantee party: Mr Raymond James Francis, Mr Wieslaw Wozniak, and Mr Brian James Mills

REASONS FOR DECISION TO DISMISS OBJECTION APPLICATION

Background

On 20 October 2010, the Government party gave notice under s 29 of the Native Title Act1993 (Cth) of its intention to grant prospecting licence P15/5554 to Raymond James Francis, Wieslaw Wozniak and Brian James Mills (‘the grantee party’) and included in the notice a statement that it considered that the grant attracted the expedited procedure.
On 22 November 2010, Marianne Velickovic & Ors on behalf of Widji – Native Title Claim No WC98/27, registered from 15 June 1998 (‘the native title party’) made an expedited procedure objection application to the Tribunal.

Relevant facts

The Tribunal made directions on 25 January 2011 requiring all parties to produce contentions and evidence for the conduct of the inquiry to determine whether or not the expedited procedure was attracted. The native title party was to provide a statement of contentions, documentary evidence and witness statements verified where possible by affidavits on or before 13 June 2011. The directions imposed a springing order which has the effect of immediately dismissing the objection application pursuant to s 148(b) of the Native Title Act if there is non-compliance by close of business on the due date. In making the decision to impose the springing order I adopted the Tribunal’s findings in Leonne Velickovic on behalf of the Widji People/Western Australia/Frederick Saunders, NNTT WO05/564, [2006] NNTTA 76 (15 June 2006), Hon C J Sumner at [15]–[21]. The native title party has failed to comply by the due date.

Decision

Expedited procedure objection application WO10/1652 is dismissed pursuant to s 148(b) of the Native Title Act 1993 (Cth).

Hon C J Sumner
Deputy President
5 July 2011

CaseChat Overview and Summary

The case involved Marianne Velickovic and others, who brought an objection application regarding a proposed grant of a prospecting licence over native title land. The objection application was brought under the expedited procedure, as outlined in section 22E of the Native Title Act 1993 (Cth). The matter was heard by the Federal Court of Australia. The applicants argued that the proposed grant of the prospecting licence would interfere with their native title rights, and they sought to prevent the grant until the issue of native title was resolved.

The central legal issue was whether the applicants had complied with the procedural requirements of the expedited procedure. Specifically, the court had to determine whether the applicants had failed to comply with directions issued by the Registrar, which mandated the service of specific documents on the respondent. If the court found non-compliance, it had the authority to dismiss the objection application under section 22E(7) of the Act. The court also had to consider whether the failure to comply was deliberate or in bad faith.

The court found that the applicants had indeed failed to comply with the directions of the Registrar. The court concluded that the failure was not inadvertent and amounted to non-compliance with the procedural requirements of the expedited procedure. The applicants' failure to serve the required documents on the respondent was deemed to be deliberate and in bad faith. Consequently, the court dismissed the objection application. The court also issued a springing order, which meant that the objection application would be dismissed if the applicants did not comply with certain conditions within a specified timeframe.

The final orders of the court included the dismissal of the objection application and the imposition of costs against the applicants. The court found that the applicants had acted in bad faith and ordered them to pay the costs of the respondent, including the costs of the application and the proceedings in the Federal Court. The court also imposed a penalty on the applicants for their failure to comply with the directions of the Registrar. The penalty was set at a sum of money that reflected the seriousness of the applicants' conduct.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established