Barnes v Northern Territory of Australia
[2012] FCA 38
•1 February 2012
FEDERAL COURT OF AUSTRALIA
Barnes v Northern Territory of Australia [2012] FCA 38
Citation: Barnes v Northern Territory of Australia [2012] FCA 38 Parties: RODNEY BARNES v NORTHERN TERRITORY OF AUSTRALIA, COMMONWEALTH OF AUSTRALIA and ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOON, HENRY MORRISON, LUCY O'KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRUMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) File number: NTD 38 of 2011 Judge: FINN J Date of judgment: 1 February 2012 Legislation: Native Title Act 1991 (Cth) Date of hearing: 20 December 2011 Place: Adelaide (Heard via video link to Darwin, Alice Springs and Tennant Creek) Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicant: The applicant appeared in person. Counsel for the First Respondent: Ms S Brownhill Solicitor for the First Respondent: Solicitor for the Northern Territory, Department of Justice Counsel for the Second Respondent: Ms Foster Solicitor for the Second Respondent: Australian Government Solicitor Counsel for the Third Respondent: Mr T Kelly Solicitor for the Third Respondent: Northern Land Council
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 38 of 2011
BETWEEN: RODNEY BARNES
ApplicantAND: NORTHERN TERRITORY OF AUSTRALIA
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOON, HENRY MORRISON, LUCY O'KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRUMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA)
Third Respondent
JUDGE:
FINN J
DATE OF ORDER:
20 DECEMBER 2011
WHERE MADE:
ADELAIDE (HEARD VIA VIDEO LINK TO DARWIN, ALICE SPRINGS AND TENNANT CREEK)
THE COURT ORDERS THAT:
1.The oral application made for an extension of time in which to file and serve an amended grounds of appeal and submissions be refused.
2.The application for an extension of time to file and serve a notice of appeal be dismissed.
3. These orders be suspended until the publication of these reasons.)
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 38 of 2011
BETWEEN: RODNEY BARNES
ApplicantAND: NORTHERN TERRITORY OF AUSTRALIA
First RespondentCOMMONWEALTH OF AUSTRALIA
Second RespondentARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOON, HENRY MORRISON, LUCY O'KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRUMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA)
Third Respondent
JUDGE:
FINN J
DATE:
1 FEBRUARY 2012
PLACE:
ADELAIDE (HEARD VIA VIDEO LINK TO DARWIN, ALICE SPRINGS AND TENNANT CREEK)
REASONS FOR JUDGMENT
These are my reasons for refusing an oral application for an extension of time in which to file and serve an Amended Draft Notice of Appeal in this matter. The primary application was for an extension of time in which to file a Notice of Appeal and I have as well rejected that application. I made orders dismissing both applications but suspended their coming into operation until the date on which I published these reasons.
The issue determined by the primary judge related to an overlap claim under the Native Title Act 1991 (Cth). It was whether, in respect of that area, one of the competing claim groups formed a subset of a wider claim group or whether the native title rights and interests in that area were held by it under its traditional laws and customs to the exclusion of the wider claim group. The primary judge acknowledged that the dispute before him was largely a factual one, albeit a complex factual one. His Honour concluded that Mr Barnes’ group was part of the wider claim group who held native title over a larger area than that of the overlap.
By way of preface, I have read his Honour’s reasons and it is not at all obvious to me that in reaching his conclusion his Honour committed an error that could ground an appeal. Mr Barnes’ concern in this matter is not that there are arguable grounds of appeal against his Honour’s decision but that he wants legal advice to determine if there are such grounds. He did not have legal representation in the proceeding that was dismissed. His difficulty is revealed in the ground of appeal that he gave in the affidavit accompanying his original application for an extension of time. It is in the following terms:
I have carefully read the Judgment and have come to the view after consulting others who live in and near me that the Judge must have erred in his finding that the Native Title Group of which I am a member does not hold Native Title rights and interests over the area exclusively, but that it is part of a group that may hold Native Title rights and interests over the overlap area claimed in matter NTD6001 of 2003.
He has had some access to legal advice. At a directions hearing on his application for an extension of time to appeal, he advanced six grounds of appeal which seemingly had been provided to him by a lawyer in Sydney who has indicated he is unable to appear further for Mr Barnes unless he obtains both legal aid and a copy of the transcript of the proceedings before his Honour. At that directions hearing the matter was adjourned and leave was given to file and serve a Proposed Amended Draft Notice of Appeal and any further written submissions, in particular to explain why the six issues raised at the directions hearing may demonstrate arguable error.
So it stood when the application was set down for hearing before me on 20 December 2011. On that occasion, Mr Barnes sought a further extension of time to seek legal aid and to be advised further. He reiterated that he needed the transcript of the hearing to be considered by a suitable lawyer so that he can be carefully advised “whether there are grounds of an appeal which he can take to the Full Federal Court”.
On the hearing of the application for an extension of time, the position taken by the Northern Territory and the Northern Land Council was, understandably, that no foundation had been put by Mr Barnes for the grant of an adjournment. Such clearly was the case. In these circumstances the course that I took was to refuse the application for a further extension of time. There was no basis upon which such an extension could in the circumstances be granted. While one can feel sympathy for Mr Barnes’ desire to have advice on the reasons why his original claim was unsuccessful, it was not appropriate for me to continue extending time against the contingency that he may obtain legal advice which may disclose an appellable error.
In the circumstances, I refused both the oral application for an extension of time and I dismissed the application for an extension of time in which to file and serve a Notice of Appeal. The original draft notice, while asserting error on his Honour’s part, disclosed no such error and, despite the opportunity that had been given by his Honour at the later directions hearing, no amended draft notice had been filed.
In dismissing both his written and oral applications I have indicated the difficult position that litigants in Mr Barnes’ situation may find themselves particularly where the body to which native title claimants would most naturally turn for financial assistance is funding a rival claim group. I apply no criticism at all of the Northern Land Council in this matter. I merely wish to suggest that some sensitivity needs to be demonstrated where there is a rival but unrepresented native title claimant. It may be the case that, in the end, time, effort and financial resources may be saved if independent legal advice could be provided to explain to such party why its claim has been unsuccessful.
On the publication of these reasons my suspension of these orders will come to an end.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 1 February 2012
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