Nyamal Palyku Proceeding

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: REEVES J
• Judgment Date: 27 March 2020
• Neutral Citation: [2020] FCA 428
• Date: 27 March 2020

FEDERAL COURT OF AUSTRALIA

Nyamal Palyku Proceeding [2020] FCA 428

File numbers:	WAD 392 of 2018 WAD 20 of 2019 WAD 23 of 2019 WAD 26 of 2019 WAD 289 of 2018 WAD 482 of 2018 WAD 483 of 2018
Judge:	REEVES J
Date of judgment:	27 March 2020
Catchwords:	NATIVE TITLE – application to amend pleadings under r 16.53 of the Federal Court Rules 2011 (Cth), or alternatively withdraw admissions – where admissions are made in the course of a separate question proceeding – whether a statement of issues, facts and contentions is a pleading – whether it is in the interests of justice to allow the admissions to be withdrawn – whether legal representatives have the implied authority to make admissions on a claim group’s behalf – whether the admissions were limited to the proceeding in which they were made or whether they were binding in a related proceeding – application dismissed ; NATIVE TITLE – application for summary dismissal under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth), or alternatively s 31A of the Federal Court of Australia Act 1976 (Cth) – whether a subsequently filed determination application constitutes an abuse of process – whether the applicant unduly delayed pursuing their rights and interests over the claim area – where the subsequent application overlaps another claim application – application dismissed
Legislation:	Federal Court of Australia Act 1976 (Cth) Native Title Act 1993 (Cth) Property Law Act 1969 (WA) Federal Court Rules 1979 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; [2002] FCA 559 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390 Celestino v Celestino [1990] FCA 449 Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 Dawson v Great Central Railway [1919] 88 LJKB 1177 Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369 In the matter of HIH Insurance Limited (in liquidation) [2015] NSWSC 790 Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc [2019] FCA 526 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 O’Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330 Orr v Ford (1989) 167 CLR 316 Singh v De Castro [2017] NSWCA 241 Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 34 ; Heydon JD, Cross on Evidence (12th ed, LexisNexis, 2019)
Date of hearing:	19 and 20 June 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	274
Nyamal Applicant’s interlocutory application
Counsel for the Nyamal Applicants:	Mr T Keely SC and Mr J Edwards
Solicitor for the Nyamal Applicants:	Arma Legal
Solicitor for the State of Western Australia:	Mr G Ranson and Ms A Warren of State Solicitor’s Office
Palyku Applicant’s interlocutory application
Counsel for the Palyku Applicants:	Mr V Hughston SC and Ms T Jowett
Solicitor for the Palyku Applicants:	Cross Country Native Title Service
Solicitor for the State of Western Australia:	Mr G Ranson and Ms A Warren of State Solicitor’s Office

Table of Corrections
2 April 2020	In [57], “Dr David Martin” has been replaced with “Dr Richard Martin”

ORDERS

	WAD 392 of 2018 WAD 20 of 2019 WAD 23 of 2019 WAD 26 of 2019 WAD 289 of 2018 WAD 482 of 2018 WAD 483 of 2018
IN THE MATTER OF the Nyamal Palyku Proceeding, constituted pursuant to orders made on 31 August 2018
KEVIN CHARLES ALLEN and others (NYAMAL #1) Nyamal #1 Applicant ; DORIS EATON and others (NYAMAL #10) Nyamal #10 Applicant ; TAMMY O’CONNOR and others (PALYKU) Palyku Applicant ; MAVIS WESTERMAN and others (NYAMAL OVERLAP CLAIM) Nyamal Overlap Applicant ; MAVIS WESTERMAN and others (NYAMAL OVERLAP #2 CLAIM) Nyamal Overlap #2 Applicant ; KEVIN STREAM and others (PALYKU #2) Palyku #2 Applicant ; STATE OF WESTERN AUSTRALIA & ORS Respondents

JUDGE:	REEVES J
DATE OF ORDER:	27 March 2020

THE COURT ORDERS THAT:

1. The Palyku application filed on 10 April 2019 is dismissed.

2. The Nyamal application filed on 20 February 2019 is dismissed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1. More than 20 years ago, a dispute arose between the Palyku People and the Nyamal (also known as “Njamal”) People with respect to certain overlaps that existed between the areas of land they had each claimed in a number of native title claims they had then recently lodged with the National Native Title Tribunal (the Tribunal). All of the land to which those claims related is located in the Pilbara region in the north of Western Australia. The overlap areas in question were situated in the general vicinity of the southern boundary of the Nyamal claim area and the northern boundary of the Palyku claim area.

2. Following unsuccessful attempts by the Tribunal to mediate the dispute and intensive case management in this Court, Barker J made orders on 22 September 2017 which divided the claim areas of the then remaining claims into three parts: the Nyamal People’s claim area (the Nyamal #1 claim), the Palyku People’s claim area (the Palyku claim – which later became the Palyku #1 claim to distinguish it from the subsequently filed Palyku #2 claim) and the remaining overlap area which surrounded the town of Nullagine (the Nullagine Overlap Area). At that time, the expectations were that the first two parts would...