Referral of question about whether a party should cease to be a party under section 94J of the Native Title Act 1993 (Rule 34.117(1)) (Form 110)

Section 94J of the Native Title Act 1993 lets the person conducting a native title mediation refer to the Federal Court the question of whether a party should cease to be a party, if the mediator considers the party does not have a relevant interest. A person has a relevant interest if their interests may be affected by a determination in the proceeding (s 94J(6)). Rule 34.117 of the Federal Court Rules 2011 says the referral must be in accordance with Form 110, be settled by the mediator, and be accompanied by all documents the Court needs to consider the question.

When you need it

• You are conducting a mediation in a native title proceeding and consider that a party does not have a relevant interest.
• A party has asked you to refer the question and you agree. If you are a consultant engaged under section 131A(1), a presidential member must also agree (s 94J(3), (4)).
• You are the party named in a referral and want to understand the process.

1. 1

   Heading and addressee

   Use the native title proceeding's file number, Registry and parties, and address the form to the party the referral relates to.

2. 2

   Person referring the question

   Give the mediator's title, full name and address, and confirm the question is referred under section 94J.

3. 3

   Party to whom the referral relates

   Give the party's name and place of residence or business, and the name and address for service of their agent, representative or lawyer and their relationship to the party.

4. 4

   Facts giving rise to the referral

   State briefly but specifically the facts, the interest that was the basis for joining the party, and why the mediator considers the party has no relevant interest. Then state the orders sought.

5. 5

   Accompanying documents and service

   List each accompanying document. List the persons to be served: the Registrar, the party concerned, the applicant in the main application, and each State and Territory with jurisdiction over the area. Date and sign.

• The mediator must provide a copy of the referral to a Registrar, the party to whom it relates, the applicant to the main application, and each State and Territory with jurisdiction over the area (r 34.117(4)).
• On receipt, a Registrar fixes a return date and place for the hearing, endorses them on the referral, and notifies the mediator and those persons (r 34.117 notes).
• The mediator may continue the mediation while the question is before the Court if appropriate (s 94J(5)).

• Include every document the Court needs to decide the question (r 34.117(2)), such as the joinder material and any statement of the party's claimed interest.
• For the purposes of deciding the question, section 94D(4) does not apply to words spoken or acts done at a mediation conference that relate to it (s 94J(2)). Think about what conference material is relied on.