Atkinson on behalf of the Gunai/Kurnai People v State of Victoria (No 3)

[2010] FCA 906

FEDERAL COURT OF AUSTRALIA

Atkinson on behalf of the Gunai/Kurnai People v State of Victoria (No 3) [2010] FCA 906

Citation:		Atkinson on behalf of the Gunai/Kurnai People v State of Victoria (No 3) [2010] FCA 906
Parties:		ATKINSON ON BEHALF OF THE GUNAI/KURNAI PEOPLE v STATE OF VICTORIA and ORS
File number(s):		VID 482 of 2009
Judge:		NORTH J
Date of judgment:		16 August 2010
Legislation:		Native Title Act 1993 (Cth) s 84
Date of hearing:	16 August 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Applicant for Joinder:	No Appearance
Counsel for the Applicant:	Mr T. Keely
Solicitor for the Applicant:	Native Title Services Victoria
Counsel for the First Respondent:	Mr A.C. Neal SC
Solicitor for the First Respondent:	Victorian Government Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 482 of 2009

BETWEEN:	ATKINSON ON BEHALF OF THE GUNAI/KURNAI PEOPLE Applicant
AND:	STATE OF VICTORIA and ORS Respondents

JUDGE:	NORTH J
DATE OF ORDER:	16 AUGUST 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application by Mr William Maxwell Rheese to be made a respondent to this proceeding pursuant to s 84 of the Native Title Act 1993 (Cth) is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 482 of 2009

BETWEEN:	ATKINSON ON BEHALF OF THE GUNAI/KURNAI PEOPLE Applicant
AND:	STATE OF VICTORIA and ORS Respondents

JUDGE:	NORTH J
DATE:	16 AUGUST 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an application under s 84(5) of the Native Title Act 1993 (Cth) by William Maxwell Rheese to be joined as a respondent to this application for a determination of native title.

2. Section 84(5) provides that:

   (5)  The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

3. Accompanying Mr Rheese’s application is an affidavit sworn by him on 24 June 2010.  In that affidavit he deposes that he uses the public land in four of the local government areas identified in the claim for the purpose of bushwalking, hunting and camping.  He claims to have used the areas extensively since 1972 and, in a typical 12 month period, would utilise the public lands 10 to 12 times a year for a duration of on average two to four days at a time.  He says he is often accompanied by friends, and occasionally the party has been larger than 10 persons.  He says that he is a member of the Australian Deer Association, with 2000 members, many of whom utilise the same public lands.

4. The applicant for the joinder was given notice of the hearing today and advised that if it wanted to advance its claim it should appear and address argument to the Court. It has not appeared.  Order 35A Rule 2(f) of the Federal Court Rules provides that:

   (1)   For this Order, an applicant is in default if the applicant:

   (f) fails to prosecute the proceeding with due diligence.

5. In the circumstances, the failure to appear amounts to a default within the meaning of this rule. Order 35A Rule 3 of the Federal Court Rules then provides that:

   (1)   If an applicant is in default, the Court may order that:

   (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant;

6. By reason of the non-appearance, the application for joinder is dismissed.  

7. A further basis for such an order is that the application does not satisfy the requirements of s 84(5). In Byron Environmental Centre Incorporated v Arakwal People and Ors (1997) 78 FCR 1 (Byron), Black CJ outlined the types of interests which might ground and application to be joined as a party to a native title application. He said (at 7):

   The nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.

8. The current application does not identify the particular land on which the activities are undertaken and, in that sense, the detail is insufficient to base a claim to become a party, with all the attendant participation in the application which would be the result.  Further, it is not made clear that the activities undertaken would be affected in a demonstrable way by a determination in relation to the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:
Dated:        16 August 2010