Originating application to remove details of agreement from the Register of Indigenous Land Use Agreements (Rule 34.110(1)) (Form 109)

Section 199C(2) of the Native Title Act 1993 lets the Federal Court order the Native Title Registrar to remove the details of an Indigenous Land Use Agreement (ILUA) from the Register, on the application of a party to the agreement or a representative Aboriginal/Torres Strait Islander body for the area. The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person, whether or not a party (s 199C(3)). The Court may also order the wrongdoer to pay compensation to a party who suffers loss because of the removal (s 199C(4)). Rule 34.110 of the Federal Court Rules 2011 requires an originating application in Form 109 with a supporting affidavit.

When you need it

• You are a party to a registered ILUA, or the representative body for the area, and say a party entered into it only because of fraud, undue influence or duress.
• You want the agreement's details removed from the Register, and possibly compensation from the person responsible.
• Not for removal on other grounds such as expiry or termination by all parties, which the Registrar deals with on written advice (s 199C(1)(c)).

1. 1

   Complete the heading

   Fill in the District Registry, Division and parties, listing others in the schedule. Delete the notice to the respondent if there is none.

2. 2

   Details of claim

   The form records that the application is made under section 199C(2) for removal of the agreement's details. Identify the ILUA and set out all the final relief sought, including any compensation order, in numbered paragraphs.

3. 3

   Prepare the affidavit

   State, for fraud, the date the fraud first came to the applicant's notice; for undue influence, the date of the first act of undue influence; and for duress, the date of the first act of duress (r 34.110(2)). Set out the facts relied on.

4. 4

   Interlocutory relief

   Keep this section only if you need interim orders, and list each in numbered paragraphs.

5. 5

   Addresses, service and signature

   Give the address for service (r 11.01) and email, choose one service option, then date and sign as applicant or lawyer.

• File through eLodgment with the affidavit. A filing fee may apply - check the current fee schedule.
• Serve the application and affidavit personally on each respondent at least 5 days before the first hearing (r 8.06).
• The Native Title NPA covers matters arising under or in relation to an ILUA (NT-1 para 2.1), so the application is case managed by a native title docket judge.

• The affidavit dates matter. Give the dates the rule asks for clearly, because they show when the ground arose or came to light.
• Think about who else is affected by removal, such as the other parties to the agreement, and whether they should be joined or served.