Brooks on behalf of the Mamu People v State of Queensland (No 5)

[2013] FCA 1464

FEDERAL COURT OF AUSTRALIA

Brooks on behalf of the Mamu People v State of Queensland (No 5) [2013] FCA 1464

Citation:	Brooks on behalf of the Mamu People v State of Queensland (No 5) [2013] FCA 1464
Parties:	STEPHEN BROOKS, ALFRED JOYCE, VICTOR MAUND, DEAN PURCELL, ANTHONY EDWARDS, HENRY EPONG AND BRENDA MATHESON ON BEHALF OF THE MAMU PEOPLE v STATE OF QUEENSLAND, CAIRNS REGIONAL COUNCIL, CASSOWARY COAST REGIONAL COUNCIL, TABLELANDS REGIONAL COUNCIL, ERGON ENERGY CORPORATION LIMITED and GREGORY LEIGH BINDER, WAYNE DOUGLAS BUIE, DAVID CARACCIOLO, JOHN COOK, MARIO CORICA, NEVILLE DAVIES, RON FORSTER, MARIE GIDDINS, ROBERT GIDDINS, BRIAN HART, STEVEN HOWE, LARRY JONES, NORBERT KUROWSKI, WILLIAM JAMES LANE, PETER JORG PAHLKE, STEPHEN PENSINI, MARK DAVID RYAN, MARTIN SCHENCKEL, MICHAEL JOHN SCHULZ, JOHN NICHOLAS TAIFALOS, MICHAEL J TAIFALOS, JAMES ARTHUR TODD, LORNA KIRI WELSFORD, IAN WHITEHOUSE AND BARRY WILSON
File number:	QUD 6014 of 2001
Judge:	DOWSETT J
Date of judgment:	21 October 2013
Date of hearing:	21 October 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	4
Solicitor for the Applicant:	Miller Harris Lawyers
Solicitor for the First Respondent:	Crown Law
Solicitor for the Third, Fourth and Fifth Respondents:	Preston Law
Ms Carolyn McCarthy (Applicant on the Interlocutory Application filed 14 October 2013):	Appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6014 of 2001

BETWEEN:

STEPHEN BROOKS, ALFRED JOYCE, VICTOR MAUND, DEAN PURCELL, ANTHONY EDWARDS, HENRY EPONG AND BRENDA MATHESON ON BEHALF OF THE MAMU PEOPLE
Applicant

AND:

STATE OF QUEENSLAND
First Respondent

CAIRNS REGIONAL COUNCIL
Second Respondent

CASSOWARY COAST REGIONAL COUNCIL
Third Respondent

TABLELANDS REGIONAL COUNCIL
Fourth Respondent

ERGON ENERGY CORPORATION LIMITED
Fifth Respondent

GREGORY LEIGH BINDER, WAYNE DOUGLAS BUIE, DAVID CARACCIOLO, JOHN COOK, MARIO CORICA, NEVILLE DAVIES, RON FORSTER, MARIE GIDDINS, ROBERT GIDDINS, BRIAN HART, STEVEN HOWE, LARRY JONES, NORBERT KUROWSKI, WILLIAM JAMES LANE, PETER JORG PAHLKE, STEPHEN PENSINI, MARK DAVID RYAN, MARTIN SCHENCKEL, MICHAEL JOHN SCHULZ, JOHN NICHOLAS TAIFALOS, MICHAEL J TAIFALOS, JAMES ARTHUR TODD, LORNA KIRI WELSFORD, IAN WHITEHOUSE AND BARRY WILSON
Sixth Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	21 OCTOBER 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the application filed 14 October 2013 be refused.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6014 of 2001

BETWEEN:

STEPHEN BROOKS, ALFRED JOYCE, VICTOR MAUND, DEAN PURCELL, ANTHONY EDWARDS, HENRY EPONG AND BRENDA MATHESON ON BEHALF OF THE MAMU PEOPLE
Applicant

AND:

STATE OF QUEENSLAND
First Respondent

CAIRNS REGIONAL COUNCIL
Second Respondent

CASSOWARY COAST REGIONAL COUNCIL
Third Respondent

TABLELANDS REGIONAL COUNCIL
Fourth Respondent

ERGON ENERGY CORPORATION LIMITED
Fifth Respondent

GREGORY LEIGH BINDER, WAYNE DOUGLAS BUIE, DAVID CARACCIOLO, JOHN COOK, MARIO CORICA, NEVILLE DAVIES, RON FORSTER, MARIE GIDDINS, ROBERT GIDDINS, BRIAN HART, STEVEN HOWE, LARRY JONES, NORBERT KUROWSKI, WILLIAM JAMES LANE, PETER JORG PAHLKE, STEPHEN PENSINI, MARK DAVID RYAN, MARTIN SCHENCKEL, MICHAEL JOHN SCHULZ, JOHN NICHOLAS TAIFALOS, MICHAEL J TAIFALOS, JAMES ARTHUR TODD, LORNA KIRI WELSFORD, IAN WHITEHOUSE AND BARRY WILSON
Sixth Respondent

JUDGE:	DOWSETT J
DATE:	21 OCTOBER 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The history of these proceedings appears from my reasons published on 31 July 2013.  Those reasons concern a dispute about the exclusion of the McCarthy family from the claim group.  The matter is now listed for consent determination on 1 November 2013.  Ms McCarthy now applies on her own behalf to be joined as respondent, with the apparent intention of seeking to establish her right, or that of the McCarthy family to be included in the claim group. 

2. As my earlier reasons disclose, this matter has been the subject of substantial investigation by numerous anthropologists, resulting in differing opinions.  In my reasons I express strong doubts as to the likelihood that further investigation will provide any additional clarification of the issue.  I accept that Ms McCarthy claims an entitlement to membership of the claim group, but upon a factual basis which the claim group does not accept.  Although Mr McCarthy now suggests bad faith or some such misconduct in the claim group’s decision, there is no evidentiary basis for such assertion.  The claim made by Ms McCarthy and her family cannot be immediately dismissed as lacking merit.  The dispute involves differences of opinion as to the relevant facts and available inferences.  However, if any attempt was to be made to upset or challenge the claim group’s decision, or to challenge its claim to hold native title over the relevant area, the time for doing so has long passed.  At the very latest it should have been raised at the time of the proceedings in March, to which my earlier reasons relate.  The McCarthy family was apparently aware of those proceedings.  Mr Appo, Ms McCarthy’s uncle, appeared but did not seek to participate actively in resolving the principal issues then in dispute. 

3. The only explanation for the absence of any earlier attempt to intervene in these proceedings is lack of legal advice.  However the evidence demonstrates that the McCarthy family obtained legal advice at least as early as February 2013.  In the circumstances it would do grave injustice to the applicant and to the existing respondents if, by a very late joinder of Ms McCarthy as a respondent, their s 87A agreement were to be disrupted.  It may also be doubted whether Ms McCarthy could, as a respondent in her own right, effectively prevent a favourable determination of the claim in favour of the claim group.  I have discussed these problems in my earlier reasons. 

4. For present purposes it is a sufficient basis for refusing the application that it is made too late, and that the delay is not satisfactorily explained, particularly having regard to the prejudice to existing parties to which I have referred.  In those circumstances the application will be refused.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       20 March 2014