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Saunders on Behalf of the Bigambul People v State of Queensland [ 2020] FCA 563  (30 April 2020)

Last Updated: 1 May 2020

FEDERAL COURT OF AUSTRALIA

Saunders on Behalf of the Bigambul People v State of Queensland  [2020] FCA 563 

ORDERS

THE COURT ORDERS THAT:

1. In accordance with s 84(5) of the Native Title Act 1993 (Cth), Anthony Turnbull, Regina Munn, Lilly Graham and Brenton Sefo Wallace be joined as parties to the proceedings.
2. Orders 3 and 4 of the orders made on 6 March 2020 be set aside.
3. The following matters are to be listed and heard together:

(a) paragraph 1 of the interlocutory application filed by the State of Queensland on 4 March 2020 (strike-out application);
(b) the interlocutory application filed by the applicant on 20 April 2020 (83A application).

4. On or before 4 pm on 14 May 2020:

(a) the State of Queensland is to file and serve:

(i) any further affidavit(s) on which it intends to rely in support of the strike-out application;
(ii) any affidavit(s) on which it intends to rely in response to the 83A application;
(iii) one set of consolidated written submissions (not exceeding 15 pages) addressing both applications.

(b) Any respondent other than the State of Queensland who wishes to be heard in relation to the strike-out application or the 83A application is to file and serve:

(i) any affidavit(s) on which it intends to rely;
(ii) one set of consolidated written submissions (not exceeding 15 pages) addressing the relevant application(s).

5. On or before 4 pm on 11 June 2020, the applicant is to file and serve:

(a) any affidavit(s) in response;
(b) one set of consolidated written submissions (not exceeding 15 pages) addressing both applications.

6. On or before 4 pm on 17 June 2020, the State of Queensland and any other respondent, file and serve any affidavits in response and submissions in reply (not exceeding 3 pages) addressing both applications.
7. Order 5 of the orders made on 6 March 2020 be varied by deleting “18 May 2020” and inserting “24 June 2020” in lieu thereof.
8. The 83A application be listed for hearing at 10.15 am on 24 June 2020 together with the strike-out application.
9. A Registrar of this Court provide a copy of the 83A application and the affidavits and submissions concerning that application to the Native Title Registrar.
10. Costs be reserved.
11. There be liberty to apply.

REASONS FOR JUDGMENT

RANGIAH J:

1. The principal proceeding is an application for compensation on behalf of the Bigambul People pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the NTA).
2. The matter was mentioned at the Southern Queensland native title callover held on 6 March 2020. Queensland South Native Title Services (QSNTS), Bigambul Native Title Aboriginal Corporation RNTBC (Bigambul PBC) and four people claiming to be Bigambul (Anthony Turnbull, Regina Munn, Lilly Graham and Brenton Sefo Wallace) indicated that they intended to become, or apply for joinder as, parties to the proceeding.
3. Prior to the callover, the State had filed an interlocutory application seeking orders striking out or summarily dismissing the compensation application or, alternatively, requiring the applicant to produce evidence that they are authorised to make the application. Orders were made setting down the State’s application for hearing on 18 May 2020.
4. QSNTS, the Bigambul PBC and the four Bigambul people formally notified the Federal Court that they want to become parties to the proceeding by filing the prescribed form. On 25 March 2020, a Judicial Registrar—Native Title notified the parties that he took the view that, by operation of s 84(3) of the NTA, QSNTS, the Bigambul PBC and the four individuals had become parties to the compensation proceedings and that he proposed to make orders prior to the end of the notification period confirming that status. The applicant responded opposing that course.
5. In addition, since the callover, social-distancing, travel and other restrictions resulting from the COVID-19 pandemic have been implemented, so that a hearing in person is not presently possible. The solicitors for the applicant have sought an adjournment of the hearing listed for 18 May 2020, principally on the basis that the first-named applicant, Leonard Saunders, has decided to isolate himself and is “hardly contactable”.
6. I listed the proceeding to hear submissions upon the following issues:

(1) Whether QSNTS:

(a) is already a party to the proceeding; or
(b) is entitled to be joined as a party to the proceeding; or
(c) ought to be joined to the proceeding (the QSNTS Joinder Issue).

(2) Whether any of the Bigambul PBC, or the four Bigambul people:

(a) is already a party to the proceeding; or
(b) is entitled to be joined as a party to the proceeding; or
(c) ought to be joined to the proceeding (the Bigambul PBC and Individuals Joinder Issue).

(3) Whether the strike-out hearing listed for 18 May 2020 should proceed by way of the Microsoft Teams application or telephone, whether the hearing should be adjourned, and, relatedly, whether the State’s application ought to be confined to the primary relief sought in paragraph 1 of that application (the Hearing Issues).

7. I will consider each issue in turn.

QSNTS Joinder Issue

8. Section 84 of the NTA provides, relevantly:

Coverage of section
(1) This section applies to proceedings in relation to applications to which section 61 applies.
Applicant
(2) The applicant is a party to the proceedings.
Affected persons
(3) Another person is a party to the proceedings if:

(a) any of the following applies:

(i) the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);
(ii) the person claims to hold native title in relation to land or waters in the area covered by the application;
(iii) the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b) the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i) within the period specified in the notice under section 66; or
(ii) if notice of an amended application is given under paragraph 66A(1A)(e)—within the period specified in the notice under that paragraph.

State or Territory Ministers
(4) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.
Joining parties
(5) The 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.

9. Section 66 of the NTA provides, relevantly:

Registrar to comply with section
(1) If the Native Title Registrar is given a copy of an application under section 63, the Registrar must comply with the requirements of this section.
Copies to State/Territory Minister
(2) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:

(a) the application; and
(b) any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.

Copies to representative bodies
(2A) The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:

(a) the application; and
(b) any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.

Notice to be given
(3) Subject to this section, the Registrar must:

(a) give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):

(i) any registered native title claimant in relation to any of the area covered by the application; and
(ii) any registered native title body corporate in relation to any of the area covered by the application; and
(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(iv) subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and
(v) the Commonwealth Minister; and
(vi) any local government body for any of the area covered by the application; and
(vii) if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and

(b) give a copy of the notice to the Federal Court; and
(c) if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and
(d) notify the public in the determined way of the application.

...
Notice to specify day
(8) A notice under paragraph (3)(a) or (d) must specify a day as the notification day for the application. Each such notice in relation to the application must specify the same day.
Which days may be specified
(9) That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.
Contents of notice
(10) A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:

...
(c) in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

10. The compensation application was publicly notified by the National Native Title Tribunal on 26 February 2020. The notification day specified in the notice was 11 March 2020. The notice stated that a person who wants to become a party to the application must write to the Registrar of the Federal Court on or before 10 June 2020.
11. On 18 March 2020, QSNTS filed a “Notice of Intention to Become a Party to an Application” (the Form 5) in the Federal Court. The stated basis was QSNTS’s status as the representative Aboriginal/Torres Strait Islander body for the Southern and Western Queensland Region in which the land and waters covered by the compensation application are situated.
12. I find that QSNTS falls within the category of persons described in s 84(3)(a)(i) of the NTA. I find that the prescribed notice was given within the period specified in s 84(3)(b)(i) (which has not yet expired).
13. Under s 84(3)(a) of the NTA, another person “is a party to the proceedings” if, relevantly, the person is covered by any of subparagraphs (i) to (vi) in s 66(3)(a) and the person notifies the Federal Court in writing that the person wants to be a party to the proceeding within the relevant period. An ordinary reading of the provision suggests that such a person becomes a party to the proceeding upon providing the written notification to the Federal Court.
14. The applicant submits, however, that such a person does not become a party until the end of the period specified in the notice, and, accordingly, QSNTS is not presently a party and will not become a party until at least 10 June 2020.
15. The applicant relies upon the note to r 34.104 of the Federal Court Rules 2011 (Cth) which provides:

34.104 Joinder of parties to main application within relevant period
If a person wants to be a party to a main application and the 3 month period mentioned in section 66(10)(c) of the Native Title Act (the relevant period) has not ended, the person must file a notice, in accordance with Form 5 in the Schedule.
Note: At the end of the relevant period, a Registrar will give notice of each party joined to the application to:

(a) the applicant; and
(b) any other party to the proceeding that the Court orders must be given notice.

16. The applicant submits that s 84(3) of the NTA must be read with the note to r 34.104 of the Federal Court Rules. The applicant submits that the effect of the note is that a person only becomes a party when the Registrar gives notice of each party joined to the application at the end of the relevant period.
17. Section 84 of the NTA comprehensively sets out the ways in which a person may become a party to an application made under s 61. The first is that the applicant is automatically a party (s 84(2)). The second is that the relevant State or Territory Minister is automatically a party unless the Minister notifies the Federal Court that he or she does not want to be a party (s 84(4)). The third is that a person who falls within a category set out in s 84(3)(a) is entitled to became a party by notifying the Federal Court within the relevant period (s 84(3)). The fourth is that a person may apply to the Federal Court for joinder as a party (s 84(5)).
18. The language of the chapeau to s 84(3) is declaratory. A person “is” a party to the proceeding in the circumstances prescribed by the section. The language of para (b) of s 84(3) suggests that it is intended to provide a procedural mechanism whereby persons falling within the categories specified in para (a) can elect to become a party by giving the prescribed notice. The declaratory language is mirrored in s 84(2) (“the applicant is a party”) and s 84(4) (“the State Minister...is a party”), and stands in contradistinction to the explicit requirement for an order of the Court before a person becomes a party under s 84(5).
19. This construction of s 84(3) is consistent with the view expressed by Dowsett J in Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730 at [1], that persons who had given notices pursuant to s 84(3)(b) of the NTA were already parties to a proceeding, subject only to the possibility of their being dismissed from the action pursuant to s 84(8) or (9). That passage was cited with approval in Adnyamathanha People No 1 v The State of South Australia [2004] FCA 950; (2004) 208 ALR 91 at [16], where Mansfield J said that a person who follows the procedure of filing a Form 5 within the prescribed period has the status of a party to the proceeding by operation of s 84, independently “of any exercise of power by the Court”.
20. To similar effect, in Murray v Western Australia [2010] FCA 595; (2010) 188 FCR 48, McKerracher J observed at [12] that a person is a party to a proceeding by operation of s 84(3) if the person notifies the Federal Court in the manner prescribed by s 84(3)(b) and the notice itself identifies the person as someone to whom any of the paragraphs of s 84(3)(a) apply. On this latter point, McKerracher J went on to hold at [92] that the Court is not bound to limit itself to the form or content of the Form 5 in order to determine whether the person giving the notification has the necessary qualifications as required by s 84(3)(a).
21. Finally, in Gomeroi People v Attorney General of New South Wales [2013] FCA 81, Jagot J observed that the view expressed by Dowsett J in Combined Mandingalbay Yidinji-Gunggandji Claim is consistent with the language of s 84(3)(a)(ii), while also acknowledging at [12] that there is potential for argument to the contrary. As there was no contradictor on the issue, her Honour preferred not to resolve the issue and proceeded on the basis that the Form 5 documents were to be taken at face value, with the result that the persons who filed the forms were, in fact, already parties to the proceedings.
22. In my opinion, a person who comes within subparagraphs (i) to (vi) of s 66(3)(a) of the NTA becomes a party to the proceeding by giving notice to the Federal Court in the prescribed form within the three month period specified under s 66(10). That status arises by the operation of s 84(3) and not through any exercise of power by the Federal Court.
23. Further, an ordinary reading of s 84(3) indicates that a person becomes a party upon giving the prescribed notice to the Federal Court. Even if it were assumed that a note in the Federal Court Rules could be used to construe a provision of an Act, the note to r 34.104 does not indicate any contrary construction. That a Registrar is to give notice of each party joined to the application at the end of the relevant period, does not suggest that a person does not become a party at an earlier time. The stipulation is one of administrative convenience. It allows the Registrar to simply issue one notice naming all the parties joined to the application at the end of the period, rather than having to give a number of separate notifications as persons become joined.
24. In my opinion, pursuant to s 84(3) of the NTA, a person within any of subparagraphs (i) to (vi) of s 66(3)(a) becomes a party to an application to which s 61 applies at the time the person gives notice to the Federal Court that the person wants to become a party.
25. Therefore, QSNTS became a party to the compensation proceeding when it filed its Form 5 on 18 March 2020.

Bigambul PBC and Individuals Joinder Issues

26. The stated basis in the Form 5 for the Bigambul RNTBC becoming a party is that the application includes areas where it holds native title on behalf of “the common law holders” (presumably a reference to the defined term in s 56 of the NTA).
27. There were determinations of native title favour of the Bigambul People made on 1 December 2016 and 23 June 2017: see Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447; Doctor on behalf of the Bigambul People v State of Queensland [2017] FCA 716. Under those determinations, the native title of the Bigambul People was vested in the Bigambul PBC.
28. It is not in dispute that the compensation application covers the same geographical area as the Bigambul native title determinations. However, the compensation application also covers areas in respect of which native title has been extinguished.
29. I find that the Bigambul PBC is a person covered by s 66(3)(a)(ii) of the NTA, and falls within the category of persons prescribed by s 84(3)(a)(i). By parity of reasoning in respect of a representative Aboriginal/Torres Strait Islander body, I find that the Bigambul PBC became a party to the proceeding when it filed its Form 5 on 19 March 2020.
30. The stated basis in the Form 5 for Anthony Turnbull, Regina Munn, Lilly Graham and Brenton Sefo Wallace becoming parties to the proceeding is that they are common law native title holders. Their solicitor, Mr Hardie deposed to the existence of genealogical and other evidence establishing that each of them are descended from Nellie Yumbeina (one of the named apical ancestors in the Bigambul People native title determination). That evidence was not challenged.
31. There is a question that arises as to whether the four individuals come within the description of persons who claim “to hold native title in relation to land or waters” under s 84(3)(a)(ii) of the NTA.
32. Section 224(1) of the NTA provides that the expression “native title holder” means, relevantly,:

If a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate.

33. Section 225 provides relevantly, that:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are;
....

34. Under the determinations of native title favour of the Bigambul People, it was declared that, “The native title is held by the Bigambul People...”. It was also determined that, “The native title is held in trust”, and that the Bigambul PBC be the prescribed body corporate for the purpose of ss 56(2)(b) and 56(3) of the NTA and to perform the functions mentioned in s 57(1) of the NTA.
35. The issue of construction of s 84(3)(a)(ii) is whether the expression “hold native title” is intended to pick up the prescribed body corporate which holds the native title on trust, or the persons determined to hold the common or group rights comprising the native title, or both.
36. If that provision only applies to the Bigambul PBC, then four Bigambul people could not genuinely claim to hold native title in the area. If so, it may be that they are not joined to the proceeding merely by filing a Form 5, but are required to seek joinder under s 84(5) of the NTA.
37. There may also be a further question of whether the four individuals come within s 84(3)(a)(iii) of the NTA. The parties did not offer any considered argument upon these questions. I would, accordingly, prefer not to decide these issues.
38. I propose to proceed upon an assumption that s 84(3)(a)(ii) of the NTA does not apply to the four Bigambul people and to consider their alternative submission that the Court should order their joinder pursuant to s 84(5).
39. There may, however, be an obstacle to that course. Section 84C of the NTA provides, relevantly:

Strike-out application
(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.
...
Court must consider strike-out application before other proceedings
(2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

40. The expression “proceedings” is not defined in the NTA. Since the context is the conduct of proceedings in the Federal Court, it is likely that the expression is used consistently with the Federal Court of Australia Act 1976 (Cth). Section 4 of that Act provides:

Proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.
Example: discovery is an example of an incidental proceeding.

41. The application by the State to strike-out the compensation application is made under s 84C(1) of the NTA. The application for joinder of the four individuals as parties is, in my opinion, a “further proceeding” within s 84C(2). Accordingly, under s 84C(2), the Court must consider the strike-out application before the joinder application “takes place” by being heard.
42. The applicant submits that the joinder application cannot proceed until the strike-out application has been heard and determined. The four Bigambul people submit that the Court need only “consider” the strike-out application, not determine it, and that has been done.
43. In Williams v Grant [2004] FCAFC 178, Lander J (North and Dowsett JJ agreeing), held:
    55. Section 84C(2) requires the Court to consider the application to strike out ‘before any further proceedings take place in relation to the main application’.
    56. That subsection recognises that if an application under s 84C is successful the application for native title will be struck out. Because of the possible consequences of the application, it is in all parties’ interests that the application be heard before any other steps are taken in relation to the main application. The subsection requires the Court to ‘consider the application made under subsection (1)’. The subsection does not require the Court to determine the application before any further steps are taken. The use of the word ‘consider’ without an obligation on the Court to also ‘determine’ the application is deliberate.
    57. In some cases it will be appropriate to determine the application at the same time as it is considered. Where the application to strike out is obviously without merit then it may be dismissed immediately. Where the application is clearly a case that calls for relief under the section, recognising that relief will be provided sparingly as I have described it, then an order will be made dismissing the main application. In many cases, an applicant faced with an application under s 84C will apply to amend the application to cure an identified deficiency. For example, where an application is based upon an applicant’s failure to comply with s 62 in supplying the details under that section, an applicant might respond by amending the application to make it comply. In those cases, the Court will not be called upon to determine the s 84C application.
    58. In some cases it may be difficult to decide whether the application should succeed. For example, it may be difficult to decide, on the papers, whether the applicant has been authorised by the native title claim group.
    59. In that case it may be appropriate to hear and determine the application under s 84C at the same time as the main application. I agree with the dicta of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] where his Honour said:

‘Section 84C(2) of the new Act says that, upon an application being made under s 84C(1), the “Court must, before any further proceedings take place in relation to the main application, consider the application under subsection (1)”. It may be, as submitted by Mr Wright on behalf of the State, that the requirement to “consider” the application does not include a requirement to determine the application. It may be open to the Court, having considered the merits of an application, to decide to defer a ruling on it until the trial of the principal application. Whether or not that is so, it is clearly the policy of the Act that the Court should give immediate attention to a strike out motion. The reason, no doubt, is that it is undesirable to allow parties to be put to trouble and expense in relation to an application that fails to comply with the fundamental requirements stated in ss 61, 61A and 62.’

60. ...Where those complexities occur, s 84C does not preclude a determination of those matters at a different point of time to a consideration of those same matters under s 84C(2). It may be appropriate, in some cases, after considering the s 84C application, before any further proceedings take place in relation to the main application, not to determine that application until after hearing the native title application itself. However, I do agree with Wilcox J that the policy of the Act is to give priority to the strike out application.
44. It is apparent that the requirement under s 84C(2) of the NTA to “consider” an application to strike-out an application made under s 61 before any further proceedings take place does not require that the strike-out application must be determined first. The provision intends that the Court should give priority to a strike-out application, but not that the conduct of the proceeding should be unnecessarily hindered. I have considered the procedural issues involved in the strike-out application, both at the callover on 6 March 2020 and again on 24 April 2020. In my opinion, that is a sufficient consideration of the strike-out application for the purposes of s 84C(2). Therefore, it is open to consider the application of the four Bigambul people for joinder.
45. The applicant submits that the application of the four Bigambul people for joinder is unnecessary and, in any event, premature. The applicant submits that two of the four are members of the Bigambul PBC, so that their interests are protected by that organisation becoming a party. Further, they submit that the Bigambul PBC has indicated that it will support the State’s strike-out application, so that, in circumstances where they are represented by the same lawyers, there is no utility in the four being joined at this stage.
46. The four Bigambul people submit that the reason they seek joinder is that the Bigambul PBC only holds the native title in respect of areas where native title has not been extinguished, while the compensation application covers areas where native title has and has not been extinguished. They seek to protect against any contention that the Bigambul PBC has an insufficient interest in respect of the areas where native title has been extinguished. While there may be some potential for an argument of this type to be made where a registered native title body corporate is an applicant, it is unlikely in circumstances where the Bigambul PBC is a respondent.
47. However, the four individuals clearly have in interest in the proceeding as Bigambul people who assert, amongst other things, that the proceedings are not properly authorised. While the question of authorisation will not be argued in the strike-out application, that application is consistent with their aim of having the compensation application dismissed. There is utility in allowing their joinder at this stage. Further, to adjourn their application for joinder may only result in further costs being incurred for all parties at a later stage.
48. I will order that the four Bigambul people be joined as parties to the proceeding.

The Hearing Issues

49. The applicant seeks an adjournment of the hearing of the strike-out application to a date to be fixed.
50. The solicitor for the applicant, Mr Stevenson, deposes that there are difficulties in contacting the first named applicant, Mr Saunders, to obtain instructions. Mr Stevenson deposes that he was informed by Mr Saunders’ brother, who was informed by Mr Saunders’ daughter, that Mr Saunders had left to “go bush on Country” to avoid contact with anyone infected with the COVID-19 virus. Mr Saunders is about seventy years of age and suffers from chronic health issues.
51. Mr Stevenson deposes that he has tried calling Mr Saunders’ mobile phone a number of times without success. Mr Saunders does not have an email address. Mr Stevenson states that he has previously received instructions through emailing documents to Mr Saunders’ daughter or his nephew.
52. Mr Stevenson deposes that, in his experience, Aboriginal people always wish to attend proceedings that affect their rights and interests. That is a surprisingly broad assertion. More to the point, Mr Stevenson states that he received instructions from Mr Saunders before the COVID-19 crisis that he definitely wished to be present at proceedings. Mr Stevenson states that he is uncertain as to when he will be able to obtain substantive instructions from Mr Saunders about matters such as possible amendments to the application.
53. Mr Stevenson also deposes that he is himself at significant risk if he contracts COVID-19 because of underlying health issues. He is in indefinite self-isolation. He says this means that he will be unable to instruct counsel during any hearing.
54. The applicant has, in the meantime, filed an application seeking, pursuant to s 83A of the NTA, that the Federal Court request the relevant Queensland Minister to conduct tenure searches in relation to the land covered by the compensation claim or, alternatively, to request the Native Title Registrar to do so. The applicant submits that this application should proceed to hearing, while the State’s strike-out application should be adjourned to a date to be fixed, pending the ending of the pandemic.
55. The State has indicated that it does not, at this stage, pursue the alternative relief sought in its interlocutory application pursuant to s 84D(1) of the NTA, to the effect that the applicant provide evidence of authorisation. The State opposes any adjournment of the hearing of the strike-out application.
56. I do not accept the applicant’s submission that the application to strike-out the claim should be adjourned for an indeterminate period. I accept that Mr Saunders, being at risk if he contracts COVID-19, has taken the reasonable decision to self-isolate. However, I do not accept that he was entitled to simply absent himself without making arrangements to stay in contact with his solicitors in order to provide instructions. Mr Saunders apparently provided instructions to his solicitors to oppose the application to strike-out the compensation claim, so he was clearly aware of the application, and that it had serious implications for the proceeding. It would not usually be a difficult matter to keep in contact by telephone.
57. Section 37N(1) of the Federal Court of Australia Act requires the parties to a civil proceeding to conduct the proceeding in a way that is consistent with the objectives set out in s 37M, including the efficient and just determination of all proceedings before the Court and the disposal of proceedings in a timely manner. I am not persuaded that the applicant’s lawyers have taken all reasonable steps to contact Mr Saunders. Surprisingly, for example, they have not sought to make contact through his daughter. However, if the applicant’s lawyers are correct that they may be unable to obtain further instructions from Mr Saunders prior to the hearing of the strike-out application, Mr Saunders may be in a position of failing to comply with his obligations under s 37N.
58. The question of justice is not confined to the interests of the applicant. Procedural fairness requires that the State be allowed to have its application heard and determined within a reasonable time. It would not be just to allow the applicant an indefinite adjournment on the basis that one of them has absented himself without taking steps to stay in contact with his solicitors in order to provide instructions.
59. The concerns expressed by the applicant’s lawyers about difficulties with the conduct of the hearing of the application can be accepted. In an ideal world, the hearing will be conducted with all parties physically present in a courtroom. However, that is not presently possible.
60. The Court has successfully used the Microsoft Teams application to conduct hearings: see, for example, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486. Indeed, the argument in the present case concerning the adjournment and the joinder of parties was conducted via Microsoft Teams.
61. The Microsoft Teams application means that Mr Stevenson will not have to be present in the same room as his counsel or anybody else. If it becomes necessary, I would certainly consider any application to stand-down the matter to allow instructions to be taken, or to give the parties the opportunity to provide further written submissions: cf JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 at [12], [17].
62. The use of the Microsoft Teams application will allow members of the applicant, and members of the public, to observe the hearing either by video or telephone. That should allay some of Mr Stevenson’s concerns about Mr Saunders being able to attend the hearing.
63. In my opinion, the applicant has not demonstrated adequate reasons for an indeterminate adjournment of the State’s strike-out application. However, recognising the asserted difficulties in gaining instructions, I propose to allow an adjournment of the matter for a further period of approximately five weeks until 24 June 2020. It seems most unlikely that the applicant’s lawyers would be unable to obtain instructions by then. The applicant’s application under s 83A of the NTA will be listed for hearing at the same time.
64. I will make appropriate directions to facilitate the hearing of the applications.
65. As the Native Title Registrar would be affected by an order under s 83A(2) of the NTA, I will direct that a Registrar provide a copy of the applicant’s application and all affidavits and written submissions to the Native Title Registrar.

Associate:

Dated: 30 April 2020