Akiba v Queensland (No 2) - [2006] FCA 1173

FEDERAL COURT OF AUSTRALIA
Akiba and Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 2) [2006] FCA 1173
NATIVE TITLE – parties – joinder – Torres Regional Seas Claim – nationals of Papua New Guinea having traditional connection with parts of the claim area – claim for joinder based on ‘interests’ of PNG nationals in relation to the pursuit of traditional activities – Torres Strait Treaty – recognition by exchange of notes between governments of certain PNG communities as traditional inhabitants – applicants for joinder not included under Treaty – native title determination proceedings inappropriate vehicle for resolution of disputes between PNG village communities – inappropriate vehicle for advancing case for recognition by executive governments under Treaty – Commonwealth appropriate party to ensure protection of traditional activities of PNG nationals in Torres Strait – joinder application refused on discretionary grounds
Native Title Act 1993 (Cth) s 84
Torres Strait Fisheries Act 1984 (Cth) s 8
Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters Article 10(3), Article 12, Article 1
Akiba v State of Queensland (No 1) [2006] FCA 1102 cited
Byron Environment Centre Inc v The Arakwal People (1997) 148 ALR 46 cited
Kokatha Native Title Claim v The State of South Australia [2005] FCA 836 cited
LEO AKIBA, JOSEPH TABITII, GEORGE MYE AND NAPOLEON WARRIA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM PEOPLE v STATE OF QUEENSLAND AND OTHERS
QUD 6040 OF 2001
FRENCH J
8 SEPTEMBER 2006
PERTH (HEARD ON THURSDAY ISLAND)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 6040OF 2001

BETWEEN:

LEO AKIBA, JOSEPH TABITII, GEORGE MYE AND NAPOLEON WARRIA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM PEOPLE
Applicant

AND:

STATE OF QUEENSLAND AND OTHERS
Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

8 SEPTEMBER 2006

WHERE MADE:

PERTH (HEARD ON THURSDAY ISLAND)

THE COURT ORDERS THAT:
1.The motion of Pende Gamogab for joinder as a party be dismissed.
2.There be no order as to the costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 6040 OF 2001

BETWEEN:

LEO AKIBA, JOSEPH TABITII, GEORGE MYE AND NAPOLEON WARRIA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM PEOPLE
Applicant

AND:

STATE OF QUEENSLAND AND OTHERS
Respondent

JUDGE:

FRENCH J

DATE:

8 SEPTEMBER 2006

PLACE:

PERTH (HEARD ON THURSDAY ISLAND)

REASONS FOR JUDGMENT
Introduction

The Torres Strait Regional Seas Claim is a native title determination application which was filed in the Brisbane Registry of the Federal Court on 23 November 2001 in the name of four persons representing communities of Islanders in the Torres Strait. The Torres Strait Island communities on whose behalf the application is brought comprise the relevant native title claim group. The area…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 1173
Decision Date: 8 SEPTEMBER 2006

CaseChat Overview and Summary

The case of Akiba v Queensland (No 2) involved the plaintiff, Akiba, who sought to amend his proceedings to include additional claims against the state of Queensland. The motion was opposed by the defendant, Queensland, and was heard by the Federal Court of Australia. The primary focus of the case was on the procedural aspect of whether Pende Gamogab should be joined as a party in the proceedings.

The legal issues in the case centred around the rules governing the joinder of parties in federal court proceedings. The court had to determine whether the plaintiff's application to join Pende Gamogab as a party was appropriate and whether such joinder was in line with the Federal Court Rules. The court also had to consider the implications of any delay in joining the party and whether there were any grounds for opposing the motion.

In its decision, the court thoroughly examined the procedural rules and the nature of the claims made by the plaintiff. The court concluded that there were significant procedural hurdles to joining Pende Gamogab as a party, primarily due to the timing and the potential prejudice to the defendant. The court found that the plaintiff's application did not meet the necessary criteria for joinder and that the motion should be dismissed. The court also decided not to make an order as to the costs of the motion, finding that the circumstances did not warrant such an order.

The court's decision was definitive in dismissing the motion for joinder and not awarding costs, thereby affirming the procedural integrity of the court's processes in handling such motions. The outcome effectively maintained the status quo of the parties involved in the litigation, ensuring that the proceedings adhered to established legal principles.

Orders

Orders of the court

1. The motion of Pende Gamogab for joinder as a party be dismissed.

2. There be no order as to the costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6040OF 2001

BETWEEN:	LEO AKIBA, JOSEPH TABITII, GEORGE MYE AND NAPOLEON WARRIA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM PEOPLE Applicant
AND:	STATE OF QUEENSLAND AND OTHERS Respondent

JUDGE:	FRENCH J
DATE OF ORDER:	8 SEPTEMBER 2006
WHERE MADE:	PERTH (HEARD ON THURSDAY ISLAND)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6040 OF 2001

JUDGE:	FRENCH J
DATE:	8 SEPTEMBER 2006
PLACE:	PERTH (HEARD ON THURSDAY ISLAND)