Forrest v WA (No 3) - Native Title Determination Applications

FCA

Changeflow GovPing Courts & Legal Forrest v WA (No 3) - Native Title Determinatio...

Priority review Enforcement Amended Final

Forrest v WA (No 3) - Native Title Determination Applications

Australia Federal Court Latest Judgments

Filed March 27th, 2026

Detected March 27th, 2026

Email

Summary

The Federal Court of Australia granted summary dismissal of two competing native title determination applications in Forrest v WA (No 3) [2026] FCA 367. The court found the later claims to be vexatious, an abuse of process, and irreconcilable with previous determinations, ordering that further claims and joinders be restricted.

Published by FCA on judgments.fedcourt.gov.au . Detected, standardized, and enriched by GovPing. Review our methodology and editorial standards .

View original document View source feed page

What changed

The Federal Court of Australia, in the judgment Forrest v WA (No 3) [2026] FCA 367, has granted summary dismissal of two subsequent native title determination applications filed by the Nangaanya-ku Native Title Claim Group. Justice Jackson found these later claims to be vexatious, an abuse of process, and unjustifiably oppressive, as they were irreconcilable with a previous determination and filed while an earlier proceeding was at an advanced stage. The court also issued orders restricting the filing of further native title claims and applications for joinder as respondents to the proceeding, citing an implied power and powers under s 23 of the Federal Court of Australia Act 1976 (Cth) to restrain abuses of its processes.

This judgment has significant implications for parties involved in native title litigation, particularly concerning the management of competing claims and the prevention of procedural abuses. Entities and individuals involved in native title proceedings should be aware that the court will actively use its powers to dismiss claims deemed vexatious or an abuse of process. The decision underscores the importance of adhering to procedural rules and the potential for court-imposed restrictions on future filings if such abuses are identified. Compliance officers should ensure that all native title applications and related filings are well-founded, non-duplicative, and do not unduly burden the administration of justice.

What to do next

Review existing native title claims for potential vexatious or abusive elements.
Ensure all new native title applications are demonstrably distinct and do not conflict with prior determinations or ongoing proceedings.
Consult legal counsel regarding the implications of this judgment on the filing of future native title claims or joinder applications.

Penalties

Summary judgment granted, restricting further filings.

Archived snapshot

Mar 27, 2026

GovPing captured this document from the original source. If the source has since changed or been removed, this is the text as it existed at that time.

Original Word Document (632.4 KB) Federal Court of Australia

Forrest on behalf of Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia (No 3) [2026] FCA 367

| File numbers: | WAD 460 of 2018

WAD 46 of 2025

WAD 152 of 2025 |
| | |
| Judgment of: | JACKSON J |
| | |
| Date of judgment: | 27 March 2026 |
| | |
| Catchwords: | PRACTICE AND PROCEDURE - interlocutory applications for summary dismissal - competing native title determination applications - applicant seeks summary dismissal of two later native title determination applications - whether later native title claims are vexatious or abuse of process - each later claim irreconcilable with previous native title determination - each later claim brought when earlier native title proceeding at advanced stage - at least one member from each respective claim group has previously brought competing claims - later claims unjustifiably oppressive and would bring the administration of justice into disrepute - each later claim vexatious and abuse of process - summary judgment granted

PRACTICE AND PROCEDURE - interlocutory application for summary dismissal - competing native title determination applications - one applicant seeking to shut out summary dismissal applications against it - ground of application results from simple error - application dismissed

PRACTICE AND PROCEDURE - interlocutory application seeking orders restricting the filing of further native title claims and applications for joinder as respondents to proceeding - whether Court has power to require leave to file an originating application - Court has implied power and power under s 23 of the Federal Court of Australia Act 1976 (Cth) to restrain abuses of its own processes - orders sought are appropriate - orders made |
| | |
| Legislation: | Federal Court of Australia Act 1976 (Cth) ss 31A, 23

Native Title Act 1993 (Cth) ss 61, 47B, 81, 223

Bates on behalf of the Malyangapa Part B Claim Group v Attorney-General of New South Wales [2021] FCA 1198

Brownley on behalf of the Gulgoordi-Garlgurla Wongi People v State of Western Australia [2024] FCA 208

Cachia v Hanes (1994) 179 CLR 403

Commonwealth Trading Bank v Inglis (1974) 131 CLR 311

Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588

Crocker v Toys ' R ' Us (Australia) Pty Ltd (No 3) [2015] FCA 728

Evans on behalf of the Yarla -Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382

Forrest on behalf of the Na n gaanya-ku Native Title Claim Group v State of Western Australia [2021] FCA 467

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489

Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2022] FCA 1356

Fortescue Metals Group v Warrie [2019] FCAFC 177; (2019) 273 FCR 350 3E

GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442

Horvath v Pattison [1999] FCA 924

Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214

Jackson v Sterling Industries Ltd (1986) 12 FCR 267

Jackson v Stirling Industries Ltd (1987) 162 CLR 612

Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104

Madden (Receiver) v Mining Standards International Pty Ltd [2025] FCAFC 142

UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77

von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681

ORDERS

Applicant | |
| AND: | STATE OF WESTERN AUSTRALIA

Respondent

(and others named in the Schedule) | |

Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), no application or other document may be accepted for filing without the leave of a judge where such application or other document is, in the opinion of the Registrar:

(a) a claimant native title determination application or compensation application which covers any of the land or waters within the external boundary of the native title determination application in this proceeding; or

(b) an interlocutory application seeking joinder as a respondent party to this proceeding on the basis of a claim to hold native title rights and interests.

The interlocutory application filed on 15 April 2025 in WAD 46 of 2025 and supporting affidavit are taken to have been filed in this proceeding and a copy of each will be placed on the court file in respect of this proceeding.
The proceeding is listed for a case management hearing at 9.00 am AWST on Thursday 23 April 2026.

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

ORDERS

Applicant | |
| AND: | STATE OF WESTERN AUSTRALIA

First Respondent

(and others named in the Schedule) | |

The interlocutory application filed on 30 July 2025 is dismissed with no order as to costs.
Pursuant to r 26.01(1)(b) and (d) of the Federal Court Rules 2011 (Cth), the proceeding is dismissed with no order as to costs.

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

ORDERS

Applicant | |
| AND: | STATE OF WESTERN AUSTRALIA

First Respondent

DENNIS FORREST & ORS ON BEHALF OF THE NANGAANYA-KU NATIVE TITLE CLAIM GROUP

Second Respondent

DESARAE BENNELL

Third Respondent | |

Pursuant to r 26.01(1)(b) and (d) of the Federal Court Rules 2011 (Cth), the proceeding is dismissed.
The applicant must pay the second respondent's costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1 These reasons determine several interlocutory applications in three related native title proceedings. They are:

(a) WAD 460 of 2018 (Nangaanya-ku Proceeding);

(b) WAD 46 of 2025 (Yilkari Mungar Proceeding); and

(c) WAD 152 of 2025 (Kungura Proceeding).

2 The three proceedings are related because each of them claims a determination of native title in respect of a certain area of land yet to be the subject of a determination in the Nangaanya-ku Proceeding. In the case of the Nangaanya-ku Proceeding and the Kungura Proceeding the applicants seek competing determinations, in respect of both that area and another smaller area. Each of the two areas is entirely covered by a different mining lease. They are together designated as Part B, because they form Part B of the native title determination application in the Nangaanya-ku Proceeding. As the proceeding numbers indicate, that claim was commenced some seven years before the other two claims were brought.

3 Part B is so designated because it was excised from the balance of the Nangaanya-ku Proceeding claim area, which was designated Part A and was the subject of a native title determination (Part A Determination) in Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489 (Nangaanya-ku Part A). It is important to note at the outset that in that decision, Griffiths J accepted that the Nangaanya-ku claim group holds native title rights and interests, not only in relation to Part A, but also in relation to Part B. Part B was excised because of questions concerning the application of s 47B of the Native Title Act 1993 (Cth) in respect of the areas covered by the mining leases. These issues remain unresolved, so no determination in relation to Part B has been made. In addition, there was a question about the validity of the mining lease that subsists over the larger area, which delayed the final determination. But those matters do not touch Griffith J's acceptance that, subject to those issues, the Nangaanya-ku claim group holds native title over Part B.

4 The procedural history of this matter and related proceedings, up to the applications considered in these reasons, has been canvassed in several previous decisions, including Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part B) v State of Western Australia [2022] FCA 1356 (Forrest) at [32]-[49]. It is not necessary to repeat that history here (although it will be necessary to give a concise rundown in [97 ] below). At present it is enough to observe that, despite the success of the Nangaanya-ku applicant in obtaining a determination of native title over Part A, that country and Part B have been the subject of frequent contest.

5 I will describe the interlocutory applications shortly, but in broad terms they revolve around applications by the Nangaanya-ku applicant to have the Court summarily dismiss each of the Yilkari Mungar Proceeding and the Kungura Proceeding.

6 For the following reasons, those applications for summary dismissal will be allowed. The Court will also make orders sought by the Nangaanya-ku applicant to require leave before another native title claim can be made in respect of the area covered by the Nangaanya-ku Proceeding. An interlocutory application brought by the Yilkari Mungar applicant will be dismissed.

7 I now turn directly to the two latest attempts to obtain native title determinations over Part B, to the exclusion of that sought by the Nangaanya-ku applicant. Unfortunately, the way that the various interlocutory applications have unfolded makes the procedural history of those attempts somewhat involved in itself.

Yilkari Mungar Proceeding

8 On 6 February 2025, on behalf of the Yilkari Mungar people, Desarae "Winna" Bennell lodged the native title determination application that commenced the Yilkari Mungar Proceeding. The Yilkari Mungar applicant claims native title rights and interests in relation to the area covered by mining lease M39/1096, which comprises the majority of Part B. The originating application was accepted for filing on 24 February 2025. Ms Bennell is the sole person named as the applicant. She does not have legal representation.

9 The Yilkari Mungar claim group is described in the application as the lineal descendants of a named apical ancestor, Minina. These lineal descendants are described in the application as including some named individuals and their future biological descendants and the descendants of Doris Gordon née Watson, who is a direct biological descendant of Minina. The Yilkari Mungar applicant asserts that the claim group's native title rights and interests arise under the traditional laws and customs of the Pindiini/Wongai cultural system. The applicant seeks recognition of the Yilkari Mungar claim group as the rightful native title holders over the area covered by M39/1096 under these laws and customs. The applicant also objects to any determination of native title in favour of the Nangaanya-ku claim group, as arising under Western Desert traditional laws and customs.

10 On 14 March 2025, the Nangaanya-ku applicant lodged an interlocutory application in the Yilkari Mungar Proceeding seeking that it be dismissed on the grounds that it is an abuse of process or vexatious (the Nangaanya-ku applicant was subsequently joined as a respondent to the Yilkari Mungar Proceeding). Further or in the alternative, the Nangaanya-ku applicant seeks that the Yilkari Mungar Proceeding be dismissed or struck out for non-compliance with s 61 of the Native Title Act. This interlocutory application was heard on 8 May 2025.

11 On 15 April 2025, the Yilkari Mungar applicant brought an interlocutory application that, by its heading, is made in the Nangaanya-ku Proceeding, but Ms Bennell filed it in the Yilkari Mungar Proceeding and it was accepted for filing in that proceeding. This application seeks an order joining the Yilkari Mungar applicant as a respondent to the Nangaanya-ku Proceeding, orders dismissing the Nangaanya-ku Part B claim, and orders that the Part A Determination be 'reopened and dismissed'.

12 None of the parties took any issue about the proceeding in which that interlocutory application was filed, so it is capable of being considered as an application in the Nangaanya-ku Proceeding, which in effect is what it is. But orders were made on 8 May 2025, by consent, adjourning the Yilkari Mungar interlocutory application to a directions hearing to be convened after the judgment resulting from these reasons was delivered. So I will not determine any aspect of the interlocutory application of 15 April 2025 in these reasons.

13 The Yilkari Mungar applicant filed another interlocutory application, on 30 July 2025. This is headed as having been made in all three proceedings but it was filed (and accepted for filing) in the Yilkari Mungar Proceeding only. By it, the Yilkari Mungar applicant seeks a range of orders which, if made, would shut out the Nangaanya-ku applicant, the Kungura applicant, and anyone else, from seeking summary dismissal of the Yilkari Mungar Proceeding. That application was heard on 15 October 2025, at the same time as the hearing of the application of the Nangaanya-ku applicant for summary dismissal of the Kungura Proceeding, to which I now turn.

Kungura Proceeding

14 On 6 May 2025, Leonard Wells Senior (whom I will call Mr Wells to distinguish him from his ancestors and relatives), Sasha Wells, Charmaine Pearlie Cissie Wells, Malahki Wells, Jadeane Keitha-Rose Gerardi, Brendon Wells and Daniel Wells, on behalf of the Kungura Family Group, lodged the native title determination that commenced the Kungura Proceeding. The originating application was accepted for filing on 23 May 2025. This is over Part B, and only Part B, meaning that it covers the land that is the subject of the Yilkari Mungar Proceeding and another, smaller area that will be described below.

15 The Kungura claim group is described in the application as descending from three named apical ancestors: Ni:Ju; Yimbudda Kitty Wells; and Kungura Len Wells. The Kungura applicant acknowledges that the Kungura claim group shares ancestry with the Nangaanya-ku claim group, but submits that this does not preclude the Kungura claim group from asserting distinct cultural and decision-making identities in respect of defined areas.

16 On 21 July 2025, the Nangaanya-ku applicant filed an interlocutory application in the Kungura Proceeding seeking that it be dismissed on the grounds that it is an abuse of process or vexatious. Since I had not by then delivered judgment in relation to the application to dismiss the Yilkari Mungar Proceeding, I indicated that I would not deliver judgment in that application until after I had heard the interlocutory application in the Kungura claim, so that the future of all the competing claims could be resolved together. The interlocutory application to dismiss the Kungura Proceeding was heard on 15 October 2025.

17 Apart from being a respondent to that interlocutory application, the Kungura applicant is also, in effect, a respondent to the Yilkari Mungar applicant's application filed 30 July 2025 seeking to shut out the Kungura applicant (and anyone else) from seeking summary dismissal of the Yilkari Mungar Proceeding. While the Kungura applicant has not sought such summary dismissal, its role as an effective respondent to the interlocutory application is perhaps explained by the fact that the application is based on what is asserted to be an impermissible overlap between the Nangaanya-ku applicant and the Kungura applicant, in that Mr Wells was named on certain court documents as a member of both applicants.

The Nangaanya-ku applicant's position

18 The primary submission of the Nangaanya-ku applicant in respect of each of the Yilkari Mungar Proceeding and the Kungura Proceeding is that they are an abuse of process, because to permit them to proceed would be to bring the administration of justice into disrepute. That is said to be because the determinations sought in the impugned proceedings would be inconsistent with the Part A Determination and the findings made in Nangaanya-ku Part A, and also because the proceedings are oppressive, especially in view of what the Nangaanya-ku applicant characterises as their lateness. A third reason why they are an abuse of process, which the Nangaanya-ku applicant says also applies in each case, is that at least one of the members of the respective claim groups have tried and failed in the past to assert a claim over the Nangaanya-ku Proceeding claim area or parts of it, so to try again would be vexatious.

19 At the hearing on 8 May 2025, senior counsel for the Nangaanya-ku applicant added a further, more specific reason why he said the Court should treat the Yilkari Mungar Proceeding as an abuse of process. Essentially, senior counsel traced through genealogies that were in evidence to demonstrate that while the Yilkari Mungar applicant claims that the Yilkari Mungar claim group holds native title rights over Part B as a result of descent through a particular biological ancestor, Jack Gordon, it was also open to them to claim adoptive descent through a different ancestor, Ralph Sinclair, which would place them in the Nangaanya-ku claim group. Senior counsel submitted that it was not necessary for the Court to determine which of these lines of descent were valid under the laws and customs of any relevant society; the fact that it is open to them to claim recognition of their native title rights through the existing Part A Determination and the Nangaanya-ku applicant's claim to Part B is a further reason why to pursue it through the Yilkari Mungar Proceeding is an abuse of process. However, since I have concluded that the other matters advanced by the Nangaanya-ku applicant require the dismissal of the Yilkari Mungar Proceeding as an abuse of process, I need not determine this further submission.

20 The Nangaanya-ku applicant also attacks the Yilkari Mungar Proceeding on the basis that it does not comply with s 61 of the Native Title Act for the reasons that it is a subgroup claim, that not all those who hold native title according to the Yilkari Mungar applicant were given a reasonable opportunity to attend the authorisation meeting, and that the manner in which the decision at the authorisation meeting was purportedly made was not valid. Similarly, it is not necessary to determine this aspect of the Nangaanya-ku interlocutory application.

21 On 21 July 2025, the Nangaanya-ku applicant also filed an interlocutory application in the Nangaanya-ku Proceeding seeking that the following applications are not to be accepted for filing in the matter without first obtaining the leave of the Court:

(a) a claimant native title determination application or compensation application under s 61(1) of the Native Title Act which covers any of the land or waters within the external boundary of the claim area in the Nangaanya-ku Proceeding; or

(b) an interlocutory application seeking joinder as a respondent party to the Nangaanya-ku Proceeding on the basis of a claim to hold native title rights and interests (whether alone, or together with others).

Relevant principles

22 As explained above, the Nangaanya-ku applicant's primary submission in respect of each of the Yilkari Mungar Proceeding and the Kungura Proceeding is that summary judgment should be ordered because each proceeding is an abuse of process. The Nangaanya-ku applicant invokes s 31A of the Federal Court of Australia Act 1976 (Cth), but it is not clear how that is relevant to an argument of abuse of process, since the basic criterion for summary judgment in the section concerns the merits of the case, that is whether there is a reasonable prospect of success. But it is not necessary to consider that question here because the Nangaanya-ku applicant also puts its application under r 26.01(1)(b) and (d) of the Federal Court Rules 2011 (Cth), which authorise applications for summary judgment where the proceeding is frivolous or vexatious or is an abuse of the process of the Court.

23 In Madden (Receiver) v Mining Standards International Pty Ltd [2025] FCAFC 142, the Full Court (Banks-Smith, Kennett and Wheatley JJ)relevantly summarised the principles that emerged from the leading High Court case of UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77, which apply to abuse of process allegations in litigation generally, as follows:

167 The leading decision on abuse of process is UBS v Tyne. The plurality (Kiefel CJ, Bell and Keane JJ) stated at [1] that either of two conditions enlivens the court's power to permanently stay proceedings as an abuse of process, namely 'where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute'.

168 Whether conduct rises to the level of an abuse of process is a determination that requires consideration of all the circumstances. It involves a merits-based judgement, taking account of public and private interests, and it is not possible to formulate hard and fast rules to determine whether on particular facts abuse is to be found: Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31; and UBS v Tyne at [7].

24 It is important to understand that while the determination of whether a claim is an abuse of process involves an evaluative judgment, it is not a matter of discretion. If a matter is determined to be an abuse, then it must be stayed or struck out. The Court may not, for example, conclude that the underlying merits of the claim are such that even though it is an abuse, it should be permitted to proceed: see GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442 at [16]-[18] and [22]-[23].

25 Justice Griffiths summarised the principles that apply to claims of abuse of process in the native title context in a decision that forms part of the procedural history of this matter: Evans on behalf of the Yarla -Gu Bunna Nangatjara People v State of Western Australia [2021] FCA 1382. In passages that I will respectfully follow, his Honour said:

64 The principles relating to abuse of process in the context of native title proceedings are set out in cases such as Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; 273 FCR 350 and Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104. It is convenient to set out the summary of some of those principles by White J in Fortescue at [560]:

The public interest considerations underlying the power of courts to stay or dismiss proceedings for abuse of process include the necessity of maintaining confidence in, and respect for, the authority of the Courts: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [69], cited in Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 at [112]. The prospect that inconsistent judgments may bring the administration of justice into disrepute among right-thinking people is a recognised category of abuse of process: Walton v Gardiner at 393.

65 The primary issues in determining whether there is an abuse of process is whether the use of the Court's procedures would be unjustifiably oppressive to a party or bring the administration of justice into disrepute.

…

67 It is apt to set out what Mortimer J said in Lawson at [131]-[133]:

131 One particular consideration important in the context of the Native Title Act, is that litigation under that Act engages public interest as well as private interests: see Fortescue at [549]. The public interest is especially prominent here because of the length of time and the resources devoted by all parties, including the State of Western Australia on behalf of the entire community of Western Australia, to a negotiated outcome and to bringing finality to native title claims in this region. That is an important consideration to be weighed in the balance.

132 However, it must also be recognised that the power to dismiss a proceeding as an abuse of process should be exercised sparingly: see Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [68]-69. That is at least in part for the very reason outlined by Dixon J in [Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588] such a dismissal deprives a party of what is otherwise an entitlement to commence and maintain a proceeding, and to have that party's allegations considered and determined.

133 Unreasonable delay in bringing a claim (or applying to be joined to a native title claim) is capable of constituting an abuse of process: see, for example, Stock (on behalf of the Nyiyaparli People) v Western Australia (No 4) [2018] FCA 1370 at [45]. However, the delay must mean that the proceeding has the characteristics to which Jagot J and I referred in Fortescue and that I have set out above.

68 Recently, in Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 34; 274 FCR 577 at [40], the Full Court (Reeves, Jagot and Mortimer JJ) made the following relevant observations in the context of a claim of abuse of process in the context of native title:

The touchstones of an abuse of process are use of the court's procedures in a way which would be unjustifiably oppressive or bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [25]. As the High Court explained in UBS AG v Tyne [2018] HCA 45; (2018) 360 ALR 184 at [1]:

The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

26 The characteristics to which Jagot and Mortimer JJ referred in Fortescue Metals Group v Warrie [2019] FCAFC 177; 273 FCR 350 were those that have been confirmed by the High Court in UBS AG v Tyne as necessary to found a finding of abuse of process, namely that the use of the Court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.

27 Also in Evans, at [69], Griffiths J noted Murphy J's observation in Bates on behalf of the Malyangapa Part B Claim Group v Attorney-General of New South Wales [2021] FCA 1198 at [105] that the native title jurisdiction:

… is bedevilled with delay in the resolution of native title determination applications, in part because of late claims by competing claim groups, some of which are only brought when an earlier application is approaching resolution. Such practices have a tendency to bring the administration of justice into disrepute and must be deprecated. …

28 Griffiths J also noted a number of matters which led Murphy J, in that case, to decide that the relevant proceeding was not an abuse of process, which included that both parties had put on extensive lay and expert evidence, the applicant had failed to establish unreasonable delay, and the proceeding was not at consent determination stage, but rather connection remained in dispute and was proceeding to a contested hearing.

29 Finally, as to the specific ground in r 26.01(1)(b) empowering the Court to grant summary judgment where a proceeding is 'frivolous or vexatious', in Crocker v Toys ' R ' Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [9] Reeves J held (citations removed):

A matter that is 'frivolous' has been described as one that is 'without substance or groundless or fanciful'. It may also describe a situation where a party is trifling with the court or wasting the court's time. A 'vexatious' proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. It might also describe proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging'.

30 It would be wrong however to treat this as a criterion that is hermetically sealed off from abuse of process; in the same paragraph of Crocker, Reeves J observed that the expressions 'scandalous', 'vexatious' or 'frivolous' 'can be used either separately, or in conjunction, or interchangeably, with the expression "abuse of the process of the court"'.

31 I will now turn to consider separately the Nangaanya-ku applicant's applications for summary dismissal of each of the Yilkari Mungar Proceeding and the Kungura Proceeding. There is significant overlap between the grounds on which each of them are alleged to be an abuse of process, however, so when the time comes to consider the Kungura Proceeding it will be possible to refer back to conclusions reached in respect of the Yilkari Mungar Proceeding.

The Yilkari Mungar Proceeding is an abuse of process

32 For the following reasons, I have decided that the Yilkari Mungar Proceeding must be dismissed as an abuse of process and vexatious.

33 First, and fundamentally, it is not possible to reconcile the Yilkari Mungar Proceeding with the Part A Determination. This can be illustrated graphically by looking at the map of Part A and Part B that appears after paragraph [37] below. Part A is the irregular orthogonal shape that takes up most of the map, excised from which are the smaller areas bordered in magenta that comprise Part B.

34 One of those smaller areas is what may be described as a relatively small sliver of mining lease M39/139 held by Lord Byron Mining Pty Ltd. This is towards the far western boundary of Part A. The other area that comprises Part B is the larger mining lease M39/1096, which is held by a joint venture of which AngloGold Ashanti Australia Limited is the manager and majority percentage interest holder. Only the area covered by that larger mining lease is the subject of the Yilkari Mungar Proceeding.

35 As has been said, and as is obvious from the map, Part B has been carved out of Part A because of the need to resolve issues arising out of the existence of those mining leases. It does not reflect some special characteristics of those areas of land which, under the laws and customs of any Aboriginal peoples, distinguish them from the balance of Part A. It is highly unlikely that a society of Aboriginal people united by common observance and acceptance of laws and customs happens to be connected only to the areas covered by a given mining lease. Therefore any group of Aboriginal people who claim a connection to one or both areas of the mining leases must also be claiming a connection to some or all of Part A.

36 It is in that sense that the Yilkari Mungar Proceeding is inconsistent with the Part A Determination. There can be no question of overlapping but mutually recognised native title rights and interests; the Nangaanya-ku have been determined to hold native title rights and interests to the exclusion of all others in relation to most of Part A. So the Yilkari Mungar Proceeding seeks an outcome that is fundamentally inconsistent with the judgment that has already been delivered in relation to Part A. A prospect of inconsistent judgments is a well-recognised category of abuse of process: see Evans at [64] quoting from Fortescue at [560].

37 That the Yilkari Mungar Proceeding involves the assertion of rights to and interests in relation to Part A is confirmed by an amended native title determination application that was accepted for filing on 9 July 2025. This depicts the asserted boundaries of the Yilkari Mungar people's traditional lands as extending over most of the Part A Determination (and all of Part B).

Map of Part A and Part B

38 Second, a particular feature of the Part A Determination deserves mention in this context as a native title determination: it is a determination in rem, that is, a determination that has effect against the whole world: see Cox on behalf of the Yun gngora People v State of Western Australia [2007] FCA 588 at 3. That is reflected in the comprehensive notice requirements for native title determination applications that are laid down in the Native Title Act. To seek to assert a competing claim after those procedures have been followed and a determination as against all the world has been made is even more clearly an abuse of process than it would be in litigation that bound only the parties to it.

39 Third, even if attention is confined to Part B, the Yilkari Mungar Proceeding is inconsistent with the findings in Nanga anya-ku Part A that are mentioned at the outset, to the effect that, subject to issues arising from the mining leases, the Nangaanya-ku claim group do have native title rights and interests in relation to Part B. See in particular Nangaanya-ku Part A at [25] and [26]-[34].

40 Fourth, regard must be had to the stage that the Nangaanya-ku Proceeding has reached. It has been on foot for over seven years now. The Yilkari Mungar Proceeding has been brought at a time when Part A of the Nangaanya-ku Proceeding has been determined and Part B is at an advanced stage. The question of the validity of mining lease M39/1096 has been determined. The evidence of the parties as to whether s 47B of the Native Title Act requires any prior extinguishment of the native title rights and interests over Part B to be disregarded has been received and heard. Subject to any further steps the parties may wish to take, of which the Court is unaware, the matter would appear ready for closing submissions and reservation of final judgment.

41 The Yilkari Mungar applicant can be expected to have been aware of all that. There are, in evidence, minutes of two meetings of the Yilkari Mungar claim group members including Ms Bennell, who became the Yilkari Mungar applicant, on 9 and 10 October 2021, showing that they were aware of Part B since at least that time. Indeed, they seem to have resolved to make a native title claim over Kalgoorlie and 'Tropicana' at that time. Tropicana is the mine on mining lease M39/1096, being the larger of the two areas of mining tenements that comprise Part B.

42 Further knowledge on the part of the Yilkari Mungar applicant can also be inferred from the role of Sandra Evans as a member of the claim group, and as chair of the authorisation meeting for the Yilkari Mungar claim. Ms Evans has been aware of the Nangaanya-ku Proceeding at least since she applied in 2021 as an applicant in the Yarla-Gu Bunna Nangatjara claim (WAD 213 of 2021) (YBN Claim), to be joined as a respondent to the Nangaanya-ku Proceeding: Evans was the decision in which Griffiths J refused to join the Yarla-Gu Bunna Nangatjara applicant and summarily dismissed the YBN Claim, in November 2021.

43 And yet only now, after Part A has been determined and when Part B is nearly ready for consideration by the Court, has the Yilkari Mungar applicant commenced the Yilkari Mungar Proceeding.

44 There is no explanation in the materials that the Yilkari Mungar applicant has filed as to why the claim has been brought at this late juncture. Ms Bennell did offer this explanation in oral submissions (8 May 2025 ts 64):

And that's where in order for us to act earlier, we did not know the evidence that we have – what we know today. And that is the reason because we were never privy to understanding and that is something that we could have rectified should we have been consulted, should we have been acknowledged in the right places.

There was, however, no specific evidence to support these general submissions.

45 In Evans at [81], Griffiths J found that the YBN Claim was an abuse of process because it was made shortly before the Part A Determination. As his Honour put it there, so here: if the Yilkari Mungar Proceeding is not dismissed, that would put the resolution of the claim of the Nangaanya-ku applicant to Part B 'right back at the start of a contested application'. To do so would be 'unjustifiably oppressive'.

46 F ifth, that would be particularly invidious in view of the public resources that have been expended in getting the Nangaanya-ku Proceeding to this point. In particular, the State of Western Australia has participated in the proceeding, has reviewed and considered extensive anthropological evidence, and has negotiated with the Nangaanya-ku applicant and others to achieve an agreed resolution in relation to Part A and in relation to the issue of underlying connection to country in Part B. The role the State has played has been consistent with the objectives of the Native Title Act to achieve finality in native title claims, by agreement if possible, as reflected in the preamble to the Act.

47 Given this long history, and the significant time and resources that have been invested in getting the Nangaanya-ku Proceeding to this point, to permit the Yilkari Mungar Proceeding to go ahead would be unjustifiably oppressive to the Nangaanya-ku applicant and to the State and would be likely to bring the administration of justice into disrepute. The words of Griffiths J in Evans at [84] are apposite to the present circumstances, indeed all the more so given the passage of time and the further resources the State and other parties have expended to seek to achieve a negotiated resolution:

There is a need to maintain public confidence in the operation of the NT Act and, in particular, with regard to the negotiation and mediation processes which are essential features of the legislative scheme. The State, on behalf of the entire community of Western Australia, has dedicated appropriate resources to negotiate an outcome and bring finality to native title in the claim area. This has included consideration of the various overlapping claims and other interlocutory applications pursued by those people who now comprise the Yarla-Gu Bunna Nangatjara applicant, all of which the State concluded were unmeritorious. Ultimately, the State is satisfied that the more inclusive Nangaanya-ku claim was capable of being supported by the connection evidence available to the State.

48 Sixth and finally, specifically in relation to the allegation that the Yilkari Mungar Proceeding is vexatious, the Nangaanya-ku applicant submits that the Yilkari Mungar Proceeding appears, at least in part, to be an attempt to resuscitate the YBN Claim that was summarily dismissed in Evans. Membership of the Yilkari Mungar claim group is defined by reference to an ancestor Oongar "Tommy" Permit, albeit the definition goes one generation higher to the apical ancestor Minina. While the membership of the Yarla-Gu Bunna Nangatjara claim group was wider, it too included people who were descended from Oongar "Tommy" Permit. In addition, Sandra Evans was a member of the applicant in the YBN Claim, and is listed in the Yilkari Mungar Form 1 as a senior person who is actively involved in the claim.

49 I accept that the YBN Claim and the Yilkari Mungar Proceeding share these commonalities (the Yilkari Mungar applicant made no attempt to contradict the submission in that regard). I also accept that, the commonalities render the Yilkari Mungar Proceeding vexatious. The making of successive, overlapping claims in these circumstances is vexatious and an abuse of process: Walton v Gardiner (1999) 177 CLR 378 at 411.

The Yilkari Mungar applicant's position on the summary dismissal application

50 The Yilkari Mungar applicant resists the summary judgment application on several grounds. It submits that the application is 'premature, procedurally unfair and an abuse of process'. But the application is not premature. While it has been made as soon as practicable after the Yilkari Mungar Proceeding was commenced, that is the appropriate course. It would not have been appropriate to permit the Yilkari Mungar Proceeding to go ahead only to raise later an allegation that it is an abuse of process.

51 As for procedural unfairness, the Yilkari Mungar applicant has identified no basis to conclude that there has been denial of that procedural fairness. Ms Bennell has been given a full opportunity to be heard including through oral and written submissions and the filing of affidavit evidence. She has also been given the opportunity to be heard in connection with the competing Kungura Proceeding.

52 Finally, no intelligible reason why the application for summary judgment is an abuse of process has been advanced.

53 The Yilkari Mungar applicant also submits that the application for summary judgment attempts to dismiss a properly constituted and filed native title claim without resolution of disputed facts. But for the reasons given, it would bring the administration of justice into disrepute and be unjustifiably oppressive to permit that contest of facts to be opened at this late stage.

54 Finally, the Yilkari Mungar applicant submits that the application for summary dismissal 'seeks to rely on anthropological evidence that is contested and subject to allegations of misrepresentation, exclusion and procedural impropriety'. Most of its written submissions were directed to supporting that submission, by putting forth reasons why, the Yilkari Mungar applicant says, the Nangaanya-ku applicant's claim to native title rights and interests is flawed. The answer to this is the one given in the previous paragraph, but in addition the submission overlooks that the Nangaanya-ku claim group now has the benefit of findings of the Court that it holds native title over the entire claim area pursuant to the laws and customs that its members observe and acknowledge. For the reasons given above, it is an abuse of process to seek now to advance a claim that is inconsistent with those findings.

55 In oral submissions at the hearing of 8 May 2025, I put to Ms Bennell the essential point about abuse of process that was put against the Yilkari Mungar Proceeding: that it appeared that the claim was inconsistent with the Part A Determination. I wanted to hear what she had to say about it. This was her reply (8 May 2025 ts 58):

And just to sort of clarify that is we know the knowledge within that boundary. So it's our cultural knowledge that we adhere to, it's practised today. So that's why it is set out in that manner. Today, we understand that there are other determined countries. We had been active in seeking that Oongar be placed on there, so our family do have a right in those areas. Because it is part of a – how do I say it? It is part of a bigger picture, not just the determined areas that are depicted today. Upurli Upurli [Nguratja] is a claim that is another Central Desert claim. It lies over Cundeelee. Cundeelee is very significant to our family.

It is also depicted in the boundary that there is what we call the Wati juru. He's our big Wati. He's the man of the moon – man of the night. His rock hole when – according to our law and culture, he was a child at the rock hole. I think it's called Stretch Mound. That is a rock hole – names have been changed on it, and historically it – it has now changed who we are and our knowledge of our country today. That rock hole is the same name of a rock hole that lies out in what we call the Great Victoria Desert. They share the same name, but they are part of our songline. They are not part of any other narrative that is being put forth. And we do hear a lot of community conversation around the rock holes, and there is a rock hole that's very significant that lies on the claimant area and that rock hole is – we have been part of a long journey since 2008. The 2008 – our family group had been in talks with Central Desert, and I have put in the email in my – you know, part of my evidence.

56 Ms Bennell made several other submissions designed to demonstrate that the group of people she represents, the Yilkari Mungar claim group, are the ones who have a true connection to country within the outer boundaries of Part A.

57 The difficulty with these submissions is that they did not address the fundamental point that, under the system of common law and statute law which this Court administers, these claims must be characterised as an abuse of process, so that proceeding will not be permitted to advance. A decision of that kind is not about whether the Yilkari Mungar applicant, or the Yilkari Mungar claim group, or their ancestors, do or do not have a connection to any given country. They may indeed be able to establish such a connection as part of the Nangaanya-ku claim group, but that is not to the point. The point is, rather, that now certain groups of people and institutions – the Nangaanya-ku applicant, and the State of Western Australia, and the Court – have gone through the long and elaborate process mandated by the Native Title Act to make a determination that the Nangaanya-ku claim group holds native title rights and interests in Part A – for the most part exclusive rights and interests – it would undermine the whole system if a competing claim could subsequently be advanced at least in the circumstances of the Yilkari Mungar Proceeding as set out above.

58 Therefore the reasons that the Yilkari Mungar applicant has put to the Court – that it is in fact the Yilkari Mungar claim group that have the connection to country and not the Nangaanya-ku claim group – do not save the Yilkari Mungar Proceeding from being an abuse of process. They are matters that should have been raised earlier, so that all concerned, including the State and the Court, could have worked out whether and how they should be addressed. Certainty and finality are important values that inform our system of law and by enforcing the rules as to abuse of process that are outlined above, the Court gives effect to those values.

Conclusion on the Yilkari Mungar Proceeding

59 For the above reasons, I am satisfied that the Yilkari Mungar Proceeding is an abuse of process and vexatious, so that summary judgment must be granted dismissing it under r 26.01(1)(b) and (d) of the Federal Court Rules.

60 As already mentioned, having reached that conclusion, I do not need to determine the Nangaanya-ku applicant's alternative submission that the Yilkari Mungar Proceeding has no reasonable prospect of success because it does not comply with s 61 of the Native Title Act.

The Kungura Proceeding is an abuse of process

61 Each of the six reasons canvassed above as to why the Yilkari Mungar Proceeding is an abuse of process also apply in relation to the Kungura Proceeding. In relation to some of them, there is no material difference between the two proceedings, so that little more need be said. In relation to some others, there are material differences that require additional comment.

62 As to the first reason, that the Kungura Proceeding is inconsistent with the Part A Determination: in one sense this can be put in an even stronger fashion for the Kungura Proceeding than for the Yilkari Mungar Proceeding. That is because the Kungura applicant claims a determination of native title in respect of all of Part B, meaning not only the larger area of mining lease M39/1096, but also what I have described as the small sliver of mining lease M39/139. It is simply inconceivable that the Court will hold that, although the Nangaanya-ku claim group has been determined to be a society united by observance and acceptance of laws and customs that connect its members to Part A (see s 223 of the Native Title Act), there would be a different society with different laws and customs that connect it only to those two widely separated areas, and nothing in between. It follows that if the Kungura applicant's assertion of native title rights and interests is to be taken at all seriously, it must be an assertion of laws and customs that connect the Kungura claim group, not just to Part B but to some parts, at least, of Part A. The Kungura Proceeding is thus inconsistent with the Part A Determination, and to permit it to proceed raises the prospect of inconsistent judgments that will bring the administration of justice into disrepute.

63 That the Kungura Proceeding similarly involves the assertion of rights to an interest in Part A is confirmed by evidence in an affidavit that Mr Wells swore on 20 August 2025. There, he refers to the apical ancestor Ni:Ju as being from a tribe based around the Lake Rason area. There is also an anthropologist's report that places the Kungura people as approximately 24 km from the midpoint of Lake Rason. Lake Rason is within Part A, and so is a line 24 km east of its midpoint. The same anthropologist's report also recognises that mining lease M39/1096 and mining lease M39/139 'are areas within a broader region to which the Kungura Family Group members assert traditional ownership'. There is no basis to distinguish between these claimed connections to the country within Part A and the claims by the Kungura applicant that the Kungura claim group is connected to the areas covered by mining lease M39/1096 and part of mining lease M39/139. And, once again, there can be no question of overlapping but coexistent claims to native title in relation to Part B. The Part A Determination in favour of the Nangaanya-ku claim group is that they hold exclusive native title rights over most of the area (subject to any partial extinguishment) and the Kungura applicant similarly asserts exclusive rights.

64 As to the second basis on which the matter may be an abuse of process, concerning the in rem nature of the Part A Determination, the observations made above in relation to the Yilkari Mungar Proceeding apply equally here.

65 The same may be said of the third basis on which it might be said that the Kungura Proceeding is an abuse of process, namely that it is inconsistent, not just with the Part A Determination, but with the findings that Griffiths J made about the connection of the Nangaanya-ku to Part B (see [39 ] above).

66 The observations made about the fourth reason why the Yilkari Mungar Proceeding is an abuse of process apply equally to the Kungura Proceeding. That is, the new proceeding has been brought at a late stage during the life of the Nangaanya-ku Proceeding, after the Part A Determination and where Part B is nearly ready to be presented for the consideration of the Court. No explanation has been given by the Kungura applicant for the delay.

67 Similarly, and f ifthly, the setback that it would cause to the Nangaanya-ku Proceeding should the Kungura Proceeding be permitted to go ahead would be particularly invidious in view of the public resources expended by the State in getting the former proceeding to this point.

68 Sixth and finally, the Kungura Proceeding may particularly be characterised as vexatious because this is not the first time Mr Wells has sought to assert a claim to native title rights and interests in relation to parts of the Nangaanya-ku Proceeding claim area. He was previously an applicant for the Nangaanya-ku Proceeding but ceased to act in that capacity after voluntarily resigning in November 2020 (as to which see further below). He was then a member of the applicant that sought to assert the YBN Claim, which was summarily dismissed on 10 November 2021. That was a claim over most of Part A, including mining lease M39/1096 (but not the sliver of mining lease M39/139). Mr Wells also unsuccessfully applied to be joined as a respondent to the Nangaanya-ku Proceeding so that he could resist it, which application was dismissed on 15 November 2022 in Forrest.

69 For Mr Wells to try to assert a claim in relation to part of the Nangaanya-ku Proceeding claim area again is vexatious in the sense (at least) that it is seriously and unfairly burdensome, prejudicial or damaging. In his evidence he seeks to disavow his role in previous claims by explaining that he no longer believes in those claims after gaining access to an anthropological report of Dr Philip Clark. This report is in evidence. The only Aboriginal informant on which it relies is Mr Wells himself. It is therefore difficult to believe that some new matter has come to his attention of which he was not previously aware that could explain why he now asserts the claim in the Kungura Proceeding after withdrawing from the Nangaanya-ku applicant and then unsuccessfully asserting different claims.

70 That is especially so since Mr Wells is a native title holder under the Part A Determination and a member of the Nangaanya-ku claim group. In Forrest, I dismissed his application to be added as a respondent to the proceeding on bases that included that his concerns were properly characterised as intramural matters. This means that it is appropriate to address those concerns by reference to provisions governing the resolution of disputes internal to the Nangaanya-ku claim group.

71 Counsel for the Nangaanya-ku applicant thus submitted that her client has now been required to deal with claims put forward by Mr Wells in varying capacities on four occasions which amounts to vexation and an abuse of process. I accept that submission.

The Kungura applicant's position on the summary dismissal application

72 The thrust of the Kungura applicant's submissions in opposition to the conclusion that the Kungura Proceeding is an abuse of process is to assert that in advancing its claim, the Nangaanya-ku applicant relied upon incorrect anthropological and genealogical evidence, by incorrectly recording apical ancestor Kitty Wells as Kitty Lynch during an improper authorisation process, and omitting certain ancestors from connection to the claim area, while improperly importing other connections into the Nangaanya-ku claim, to create a large claim area that undermines the historical credibility of connection. Further, Mr Wells submits that, despite once being recorded as an applicant in the Nangaanya-ku Proceeding, he was not previously involved in native title claims and was misled during the Nangaanya-ku Proceeding authorisation process.

73 But with respect, these submissions do not engage with any of the points made above that lead to the conclusion that the Kungura Proceeding is an abuse of process and vexatious. As with the answer sought to be advanced by the Yilkari Mungar applicant, the problem with the Kungura applicant's attempted answer is that it raises matters that should have been raised much earlier. The Court has passed judgment on the claims of the Nangaanya-ku applicant to native title rights and interests for the area that is within the external boundary of the Nangaanya-ku Proceeding (albeit on the basis of a consent determination). So it is not to the point whether the Kungura applicant does or does not have a factual basis to question the connection of the members of the Nangaanya-ku claim group to Part A or Part B. The Court has determined that this connection is real. For the reasons given, to entertain the contrary contentions of the Kungura applicant now would be to undermine confidence in the administration of justice and bring it into disrepute, and would be unfairly oppressive to the Nangaanya-ku applicant.

74 Senior counsel for the Kungura applicant sought to meet the problem of inconsistent judgments by submitting that his client's application could not, as a matter of law, vary or affect the Part A Determination. That is so; it is framed only as an application in respect of Part B. However that submission does not, with respect, answer the point. For reasons articulated above, to determine that the Kungura claim group hold native title rights and interests over Part B, to the exclusion of the Nangaanya-ku claim group, necessarily implies, in point of fact, that there is a system of laws and customs by which members of the Kungura claim group are connected, not only to Part B, but to areas within Part A. That necessary implication is bolstered by the evidence of Mr Wells that has been referred to which asserts a connection to country within Part A. Nor does the submission engage with the third reason given above as to why the Kungura Proceeding is an abuse of process, namely its inconsistency with the findings in Nangaanya-ku Part A. Hence I remain of the view that the Kungura Proceeding raises a prospect of inconsistent judgments, so that to permit it to proceed would be to bring the administration of justice into disrepute.

75 As to the significance of the anthropological evidence on which the Kungura applicant seeks to rely, senior counsel emphasises that Dr Clarke's work was based, not only on what he had been told by Mr Wells, but also on research into the records of mid-20 th century ethnographers such as AP Elkin and Norman Tindale. But, as submitted by counsel for the Nangaanya-ku applicant, even if the significance of that ethnographic material has only recently come to light, that cannot explain why Mr Wells could not, at an earlier time, have put material showing the asserted connection to country of the members of the Kungura claim group by way of a mutually observed and acknowledged body of laws and customs. The presence of that body of laws and that connection today (having also persisted since sovereignty) would be an essential condition of the claim and must have been known to the members of the claim group regardless of any more recent discovery of historical ethnographic materials that might supplement that knowledge. I do not accept that any recent discovery of historical ethnographic records is a satisfactory explanation as to why the Kungura Proceeding has been brought so late in the process of determining native title in the Nangaanya-ku Proceeding.

Conclusion on summary dismissal of Kungura Proceeding

76 For those reasons, an order will be made dismissing the Kungura Proceeding under r 26.01(1)(b) and (d) of the Federal Court Rules.

The Yilkari Mungar applicant's application to shut out summary dismissal of its claim

77 As has been said, the Yilkari Mungar applicant brought an interlocutory application that was accepted for filing on 30 July 2025 by which it seeks to shut out all concerned from seeking summary dismissal of the Yilkari Mungar Proceeding. More particularly, the Yilkari Mungar applicant seeks orders:

(a) for the Nangaanya-ku applicant's interlocutory application for summary dismissal of the Yilkari Mungar Proceeding to be dismissed 'with prejudice' and with costs payable to the Yilkari Mungar applicant by both the Nangaanya-ku applicant and the Kungura applicant (or alternatively by Mr Wells);

(b) for any interlocutory application by Mr Wells, the Nangaanya-ku applicant, the Kungura applicant or any 'person acting on behalf of, or in the same or related capacity' seeking summary dismissal of the Yilkari Mungar Proceeding to be dismissed 'with prejudice';

(c) that the Nangaanya-ku applicant, the Kungura applicant or any 'person acting in the same or related capacity' be restrained from filing any further interlocutory applications seeking summary dismissal of the Yilkari Mungar Proceeding without the leave of the Court; and

(d) that the Court request the Native Title Registrar to expedite the application by the Yilkari Mungar applicant for registration of its native title determination claim.

78 All these orders are sought on the specific ground that Mr Wells appears as a member of the group of people that comprise the Nangaanya-ku applicant, as well as being a member of the Kungura applicant. The Yilkari Mungar applicant contends that this gives rise to abuse of process and 'conflict of interest'.

79 However that all results from a simple error on the part of the Nangaanya-ku applicant in the way it has filed its interlocutory applications in the Nangaanya-ku Proceeding and the Yilkari Mungar Proceeding. The error is that the interlocutory applications name Mr Wells as a member of the Nangaanya-ku application when, in fact, he was removed as a member of that applicant by order of the Court in November 2020. In addition, another person, who has passed away, is incorrectly named as a member of the Nangaanya-ku applicant. An affidavit of Mr O'Dell affirmed on 18 August 2025 confirms that these were simple errors, which occurred because Central Desert Native Title Services had used an out-of-date list of the members of the applicant when it prepared the interlocutory applications. Mr O'Dell wrote to Ms Bennell to that effect two days after the Yilkari Mungar applicant's interlocutory application was served, inviting her to consider whether that application should be amended or withdrawn because Mr Wells is not a current member of the Nangaanya-ku applicant, and is not one of the people who have applied for dismissal or strike out of the Yilkari Mungar Proceeding.

80 Ms Bennell has not taken that invitation up. But with respect she should have, because it is clear that Mr Wells was only named on the Nangaanya-ku interlocutory applications by reason of inadvertence, and there is no basis to assert that he is a member of both the Nangaanya-ku applicant and the Kungura applicant. To reiterate: he was removed as a member of the Nangaanya-ku applicant by order of the Court on 26 November 2020.

81 It follows that the grounds for the Yilkari Mungar applicant's interlocutory application of 30 July 2025 falls away. Even if common membership of each of the Nangaanya-ku applicant and the Kungura applicant were able to found the Yilkari Mungar applicant's allegations of abuse of process and conflict of interest, the evidence does not support the factual basis of the allegations. The Yilkari Mungar applicant has not established that Mr Wells has had any involvement in the Nangaanya-ku applicant's interlocutory application for summary dismissal of the Yilkari Mungar Proceeding.

82 The Yilkari Mungar applicant seeks costs of its interlocutory application. I will assume that this is pressed, even though the application will be dismissed, on the ground that it was only made necessary by the error in the description of the Nangaanya-ku applicant. But even allowing that to be so, the Nangaanya-ku applicant corrected the position as soon as it was made aware of the error and the Yilkari Mungar applicant should have withdrawn the application then, as has been said. In any event, the Yilkari Mungar applicant has no legal representation and therefore ordinarily would not be entitled to an order for costs: see Cachia v Hanes (1994) 179 CLR 403 at 410, 417.

83 The Nangaanya-ku applicant and the Kungura applicant do not seek costs against the Yilkari Mungar applicant for the interlocutory application. The application will be dismissed with no order as to costs.

Orders sought by the Nangaanya-ku applicant regarding future applications

84 As described above, the Nangaanya-ku applicant also seeks orders restricting the filing of further native title claims, or applications for joinder as respondents, on the basis of claimed native title rights over the area of the Nangaanya-ku Proceeding. It seeks this order pursuant to r 2.27 of the Federal Court Rules, or s 23 of the Federal Court Act or as an exercise of the Court's inherent powers of case management.

85 The orders sought by the Nangaanya-ku applicant can be broken down into two elements: first, that leave be required to file an originating application for a native title determination or compensation application under s 61(1) of the Native Title Act in relation to any land or waters within the external boundary of the claim in the Nangaanya-ku Proceeding; and second, that leave be required to file any interlocutory application in the Nangaanya-ku Proceeding seeking joinder as a respondent party.

Power to make the orders sought

86 Rule 2.27(f) provides that a document will not be accepted for filing if the Court has given a direction that the document not be accepted without the leave of the Court, and leave has not been obtained. There is no doubt that this rule at least gives the Court the power to make a direction of the kind sought in the second limb of the Nangaanya-ku applicant's proposed order, requiring leave before a certain kind of interlocutory application in an existing proceeding is brought. But whether the rule permits the making of a direction requiring leave to be granted to file an originating application is a different matter.

87 I doubt that it does. For it concerns when a document 'will not be accepted for filing' and is found in a division of the Federal Court Rules that concerns the lodging and filing of documents. This suggests that it regulates the administrative step of accepting a document for filing. It is an unlikely place to find a broad, possibly unrestricted power in the Court to shut a potential litigant out from commencing a new claim, with or without leave. That is especially so in light of the High Court's decision in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, to which I will turn shortly. Where r 2.26 in the same Part confers such a power, it does so expressly.

88 It is not necessary to decide on r 2.27 as the source of the power, however, for I am satisfied that the Court's implied power to restrain abuses of its own processes, supplemented if necessary by s 23 of the Federal Court Act, provides the necessary power (implied power, of course, being an approximate equivalent for a statutory court such as this Court to the inherent power held by other courts of more plenary jurisdiction: Jackson v Sterling Industries Ltd (1986) 12 FCR 267 at 272 per Bowen CJ, with whom the High Court agreed on this point in Jackson v Stirling Industries Ltd (1987) 162 CLR 612 at 616, 618, 621 and 624.

89 Taken in isolation, Inglis itself might give cause for doubt as to the scope of that implied power. In it, the Commonwealth Bank relevantly sought an order pursuant to the inherent jurisdiction of the High Court that no legal proceedings should be instituted by the respondents on the basis of their having repeatedly instituted vexatious proceedings in the past. This order was outside the scope of the specific rule as to vexatious litigants then found in the High Court Rules. The horvathCourt (Barwick CJ and McTiernan J) held that there was no inherent power in the High Court to prevent the commencement without leave of any proceeding by a particular person or persons. At 314-315 their Honours said:

In our opinion, it is not surprising that the courts do not appear (so far as we have been able to discover) to have taken the further step of intervening in a summary way to prevent the commencement, except by leave, of actions and other proceedings by a particular person or persons but have limited themselves to exercising their powers in relation to proceedings which have been taken in a court and have thus been placed under its control. It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the court's process in cases where it was shown to be probable that a person would continue bringing groundless proceedings. But, in our opinion, it is apparent that the courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority. This is demonstrated, not merely by the absence of reported cases in which such orders have been made under the inherent power of the court, but by the fact that it has been thought necessary to deal with specific cases of the bringing of numerous unfounded proceedings by legislation rather than by invoking the inherent power of the court. There have been cases in which the vexatious character of the proceedings was so clear that it cannot be supposed that the court would have hesitated to exercise such a power if it had been regarded as existing.

90 At first blush, this would seem to rule out an order of the kind sought by the Nangaanya-ku applicant here under the first limb of its application. But Barwick CJ and McTiernan J do allow that the courts have exercised relevant powers 'in relation to proceedings which have been taken in a court and have thus been placed under its control'.

91 In Inglis, the Bank was seeking to restrain the commencement of any proceedings by certain individuals, regardless of what they were about. That is not what the Nangaanya-ku applicant is seeking here. What it relevantly seeks to restrain is any claimant native title determination application or compensation application covering any of the land or waters within the external boundaries of Part A. In other words, it asks the Court to restrain an application which, it says, is likely to be an abuse of process in the context of the matter of which, by the Nangaanya-ku Proceeding, the Court is presently seized.

92 That Inglis does not preclude such an order is confirmed by more recent authority. In Horvath v Pattison [1999] FCA 924, after considering Inglis, Finkelstein J held that the power of the Federal Court to prevent an abuse of process in pending proceedings could be used to restrain an application (in a fresh proceeding) for the annulment of bankruptcies that were already before the Court.

93 In Hunter v Leahy [1999] FCA 1075; (1999) 91 FCR 214, after considering the Jackson v Sterling Industr ies cases, Inglis, Horvath and Attorney-General v Wentworth (1988) NSWLR 481, French J said at [17] that he did not regard the decision in Inglis:

as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court. As in the Wentworth case the touchstone of the Court's power must be substance rather than form.

94 Section 23 of the Federal Court Act provides that the Court 'has power, in relation to matters in which it has jurisdiction, to make orders of such kinds' as it thinks appropriate. Justice French thus found that it was open to the Court to order that no application or other document lodged by a particular litigant was to be accepted without the leave of a judge where the application was, in the opinion of the registrar, related to the subject matter of a particular previous judgment of the Court, or which named certain identified respondents as a respondent.

95 In my view, these cases confirm that s 23 does empower the Court to make an order of the kind sought by the Nangaanya-ku applicant here. For the order is expressly and clearly related to the subject matter of the existing native title claim made by the Nangaanya-ku applicant. The kind of proceeding that it seeks to restrain, being a native title determination application or compensation application covering any of the land or waters within the external boundary of the claim made in the Nangaanya-ku Proceeding, will inevitably be part of the same 'matter' (in the constitutional sense) as the matter that is, in substance, presently before the Court by virtue of jurisdiction conferred by s 81 of the Native Title Act. Section 23 of the Federal Court Act thus expressly gives power to make an order of the kind that the Court thinks appropriate in relation to a new proceeding of that kind, and there is no doubt that an order made for the purpose of restraining abuse of the Court’s process is within the limits of that power.

The orders are appropriate

96 While the orders sought by the Nangaanya-ku applicant are within power, they are of a kind that the Court must only make with great caution. For they seek to restrict access to justice: see von Risefer v Permanent Trustee Company L t d [2005] 1 Qd R 681 at 25. Also, in one sense at least, the orders sought by the Nangaanya-ku applicant are extremely broad, because they will restrain the commencement of proceedings by a potentially wide range of persons who are presently unidentified.

97 Nevertheless, I am persuaded that the orders are appropriate in this case. For the breadth of the possible range of persons they might affect is limited by the specific nature of the subject matter to which they relate. That subject matter is essentially that covered by Nangaanya-ku Part A, which determined native title in relation to Part A and in addition made findings concerning native title over Part B. As appears from the reasons above, it is difficult to conceive of an application over Part B that would be consistent with the Part A Determination and/or the findings made in Nangaanya-ku Part A. And that is so in the context where there have been fully five unsuccessful attempts by certain persons and groups to take part in the Nangaanya-ku Proceeding for the purpose of opposing the Nangaanya-ku applicant's claim and/or to lodge competing claims over Part B. They are:

(a) three interlocutory applications for Mr Wells and others to be joined as respondents to the Nangaanya-ku Proceeding, filed in March and April 2021 and dismissed in Forrest on behalf of the Na n gaanya-ku Native Title Claim Group v State of Western Australia [2021] FCA 467;

(b) the YBN Claim, filed in September 2021 and dismissed in Evans;

(c) the interlocutory application which sought for Mr Wells and others to be joined as respondents to the Nangaanya-ku Proceeding and for a review of the Part A Determination, filed in June 2022 and dismissed in Forrest;

(d) the Yilkari Mungar Proceeding, filed in February 2025; and

(e) the Kungura Proceeding, filed in May 2025.

98 One of those attempts was commenced just before the Part A Determination was made and the rest after that occurred. In those circumstances, and given the characteristics of Part A and Part B respectively as canvassed above in this judgment, on the face of things any further attempt by a party other than the Nangaanya-ku applicant to assert a claim of native title, or to seek compensation for acts affecting native title, will be an abuse of the process of the Court. I am therefore persuaded, in particular in view of the history sketched above, that the orders sought are appropriate to be made.

99 The restraint will only operate on the face of things, of course; the provision made for an applicant to seek the leave of the Court will mean that an applicant will have a proper opportunity to establish before a judge that the initial impression is wrong, or that for some other reason it is appropriate to grant leave to proceed.

The Yilkari Mungar application of 15 April 2025

100 Finally, as mentioned above the Yilkari Mungar applicant filed an interlocutory application and supporting affidavit on 15 April 2025 in the Yilkari Mungar Proceeding seeking that the Part A Determination be reopened and dismissed as an abuse of process and for failure to comply with s 61 of the Native Title Act, and that the claim of the Nangaanya-ku applicant to Part B be dismissed as an abuse of process and for failure to comply with s 61.

101 At the hearing on 8 May 2025, all concerned agreed that it was appropriate to hear that application after the delivery of these reasons. While the summary dismissal of the Yilkari Mungar Proceeding means that the application of 15 April 2025 has no extant proceeding in which to be made, as has been said, the other parties did not seek to take any point about the proceeding in which it has been commenced, and it may properly be treated as an application in the Nangaanya-ku Proceeding. An order will be made directing that it be treated as such so that it can be programmed and determined in that proceeding.

Outcome

102 The Yilkari Mungar Proceeding and the Kungura Proceeding will each be summarily dismissed as abuses of the process of the Court and vexatious.

103 The Nangaanya-ku applicant seeks the costs of its application for summary dismissal of the Kungura Proceeding. Senior counsel for the Kungura applicant accepted that costs should follow the event in that regard. An order for costs in favour of the Nangaanya-ku applicant against the Kungura applicant will be made.

104 Apart from that, the only party that sought costs was the Yilkari Mungar applicant in respect of its interlocutory application filed on 30 July 2025. But for the reasons given, that application will be dismissed with no order for costs.

105 An order will also be made with the effect that no application or other document may be accepted for filing without the leave of a judge where such application or other document is, in the opinion of the Registrar:

(a) a claimant native title determination application or compensation application which covers any of the land or waters within the external boundary of Part A; or

(b) an interlocutory application seeking joinder as a respondent party to the Nangaanya-ku Proceeding on the basis of a claim to hold native title rights and interests.

106 The application filed on 15 April 2025 in the Yilkari Mungar Proceeding will be treated as having been filed in the Nangaanya-ku Proceeding and placed on the court file in the latter proceeding.

107 Finally, the Nangaanya-ku Proceeding will be listed for a case management hearing on Thursday 23 April 2026 with a view to programming the matter (including the Yilkari Mungar application just mentioned) to final determination. The Yilkari Mungar applicant will be entitled to appear at that case management hearing in view of its application to be joined as part of its interlocutory application of 15 April 2025.

| I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. |
Associate:

Dated: 27 March 2026

SCHEDULE OF PARTIES

Named provisions

PRACTICE AND PROCEDURE - interlocutory applications for summary dismissal PRACTICE AND PROCEDURE - interlocutory application for summary dismissal PRACTICE AND PROCEDURE - interlocutory application seeking orders restricting the filing of further native title claims and applications for joinder as respondents to proceeding

Related changes

Fourmile v State of Queensland - Native Title Joinder and Removal

Priority review Mar 27, 2026 • Australia Federal Court Latest Judgments • Courts & Legal

Emergency Flood Response Pty Ltd v Flood Emergency Services Group Pty Ltd - Interlocutory Application

Routine Mar 27, 2026 • Australia Federal Court Latest Judgments • Courts & Legal

Majak v Barnden - Summary Dismissal of Proceedings

Priority review Mar 27, 2026 • Australia Federal Court Latest Judgments • Courts & Legal

Get daily alerts for Australia Federal Court Latest Judgments

Daily digest delivered to your inbox.

Free. Unsubscribe anytime.

Source

Australia Federal Court Latest Judgments fedcourt.gov.au/digital-law-library/judgments/latest

Courts & Legal

About this page

What is GovPing?

Every important government, regulator, and court update from around the world. One place. Real-time. Free. Our mission

What's from the agency?

Source document text, dates, docket IDs, and authority are extracted directly from FCA.

What's AI-generated?

The summary, classification, recommended actions, deadlines, and penalty information are AI-generated from the original text and may contain errors. Always verify against the source document.

Last updated

March 27, 2026

Press inquiries →

Classification

Agency

FCA

Filed

March 27th, 2026

Instrument

Enforcement

Legal weight

Binding

Stage

Final

Change scope

Substantive

Document ID

Forrest v WA (No 3) [2026] FCA 367

Docket

WAD 460 of 2018 WAD 46 of 2025 WAD 152 of 2025

Who this affects

Applies to

Tribal nations

Industry sector

9211 Government & Public Administration

Activity scope

Native Title Determination

Geographic scope

Australia AU

Taxonomy

Primary area

Judicial Administration

Operational domain

Legal

Topics

Native Title Civil Procedure

Forrest v WA (No 3) - Native Title Determination Applications

Summary

What changed

What to do next

Penalties

Archived snapshot

Named provisions

Related changes

Source

About this page

Classification

Who this affects

Taxonomy

Browse Categories

Get alerts for this source

Subscribed!