Budby on behalf of the Barada Barna People v State of Queensland (No 3)
[2014] FCA 607
FEDERAL COURT OF AUSTRALIA
Budby on behalf of the Barada Barna People v State of Queensland (No 3) [2014] FCA 607
Citation: Budby on behalf of the Barada Barna People v State of Queensland (No 3) [2014] FCA 607 Parties: FRANK BUDBY, LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE v STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE ONE OF RESPONDENT PARTIES
AMY LESTER, TRUDY CRANSTON, SAM DALLACHY, BETTY DOYLE, ANTHONY HENRY, MONA KIELLY, RANDOLPH POWDER, NORMAN ROSS, DAVINA TIBAROO, DEREK WILLIE AND NANCY WILLIE ON BEHALF OF THE BARADA KABALBARA YETIMARALA PEOPLE v STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE TWO OF RESPONDENT PARTIES
EILEEN BERYL PEGLER, PAUL ROYCE BUTTERWORTH, MARILYN JOYCE ELIZABETH DUNCAN, ATHOL NOEL GOLTZ, LORRAINE JOYCE MCLENNAN, KENNETH STEWUART PETERS, GRAHAM IAN SAUNEY, OSWALD ALFRED SKEEN, LINDA WAILU AND RONALD JOCK WATSON ON BEHALF OF THE WIDI PEOPLE OF THE NEBO ESTATE #2 v STATE OF QUEENSLAND
File number(s): QUD 380 of 2008
QUD 383 of 2013
QUD 492 of 2013Judge: DOWSETT J Date of judgment: 4 April 2014 Date of hearing: 4 April 2014 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 QUD 380 of 2008: Counsel for the Applicant: Mr K Barlow QC with Mr J Waters Solicitor for the Applicant: Dillon Bowers Lawyers Counsel for the First Respondent: Ms E Longbottom Solicitor for the First Respondent: Crown Solicitor Solicitor for Second Respondent: Australian Government Solicitor Solicitor for the Third, Fourth, and Fifth Respondents: Gilkerson Legal Solicitor for the Eighth Respondent: North Queensland Land Council Counsel for the Sixth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty First, Twenty Second, Twenty Third, Twenty Fourth, Twenty Fifth, Twenty Sixth, Twenty Seventh, and Twenty Eighth Respondents:
Mr M Liddy Solicitor for the Sixth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty First, Twenty Second, Twenty Third, Twenty Fourth, Twenty Fifth, Twenty Sixth, Twenty Seventh, and Twenty Eighth Respondents:
North Queensland Land Council Solicitor for the Thirtieth, Thirty First, Thirty Second, Thirty Sixth, Forty First, Forty Fourth, Forty Fifth, Forty Sixth, Forty Ninth, Fifty Eighth, Sixtieth, and Sixty Fourth Respondents: Ashurst Australia Solicitor for the Sixty Fifth, Sixty Sixth, Sixty Seventh, Sixty Eighth, Sixty Ninth, Seventieth, Seventy First, Seventy Second, Seventy Third, Seventy Fourth, Seventy Fifth, Seventy Sixth, Seventy Seventh, Seventy Eighth, Seventy Ninth, Eighty Second, Eighty Third, and Eighty Eighth Respondents:
Thynne & Macartney QUD 383 of 2013: Counsel for the Applicant: Mr T Keely Solicitor for the Applicant: Queensland South Native Title Services Counsel for the First Respondent: Ms E Longbottom Solicitor for the First Respondent: Crown Solicitor Solicitor for the Second, Third, Fourth, Fifth, and Sixth Respondents: Gilkerson Legal Solicitor for the Seventh Respondent: MacDonnells Law Counsel for the Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, and Seventeenth Respondents:
Mr K Barlow QC with Mr J Waters Solicitor for the Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, and Seventeenth Respondents:
Dillon Bowers Lawyers Solicitor for the Eighteenth Respondent: Ashurst Australia Solicitor for the Twenty Fourth, Twenty Eighth, Thirty Second, Thirty Third, Thirty Seventh, Thirty Eighth, Thirty Ninth, Fortieth, Forty First, Forty Second, Forty Third, Forty Fourth, Forty Fifth, and Forty Sixth Respondents: Thynne & Macartney QUD 492 of 2013: Counsel for the Applicant: Mr M Liddy Solicitor for the Applicant: North Queensland Land Council Counsel for the First Respondent: Ms E Longbottom Solicitor for the First Respondent: Crown Solicitor Counsel for Cecil Brown Jnr, Gregory Brown, Graham Budby, Les Budby, Stacey Budby, and Carmel Dargan (seeking leave to appear): Mr K Barlow QC with Mr J Waters Solicitor for Cecil Brown Jnr, Gregory Brown, Graham Budby, Les Budby, Stacey Budby, and Carmel Dargan (seeking leave to appear): Dillon Bowers Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 380 of 2008
BETWEEN: FRANK BUDBY, LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE
ApplicantAND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE ONE OF RESPONDENT PARTIES
Respondents
JUDGE:
DOWSETT J
DATE OF ORDER:
4 APRIL 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the representatives of each Applicant and the State of Queensland attend a case management conference to be convened by the Deputy Registrar within the next two weeks for the purpose of considering the terms of the proposed draft order on the basis that the matter is to be listed for trial in the second half of 2015; and
2.the matter be adjourned until 5 May 2014.
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 383 of 2013
BETWEEN: AMY LESTER, TRUDY CRANSTON, SAM DALLACHY, BETTY DOYLE, ANTHONY HENRY, MONA KIELLY, RANDOLPH POWDER, NORMAN ROSS, DAVINA TIBAROO, DEREK WILLIE AND NANCY WILLIE ON BEHALF OF THE BARADA KABALBARA YETIMARALA PEOPLE
ApplicantAND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE TWO OF RESPONDENT PARTIES
Respondents
JUDGE:
DOWSETT J
DATE OF ORDER:
4 APRIL 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the representatives of each Applicant and the State of Queensland attend a case management conference to be convened by the Deputy Registrar within the next two weeks for the purpose of considering the terms of the proposed draft order on the basis that the matter is to be listed for trial in the second half of 2015; and
2.the matter be adjourned until 5 May 2014.
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 492 of 2013
BETWEEN: EILEEN BERYL PEGLER, PAUL ROYCE BUTTERWORTH, MARILYN JOYCE ELIZABETH DUNCAN, ATHOL NOEL GOLTZ, LORRAINE JOYCE MCLENNAN, KENNETH STEWUART PETERS, GRAHAM IAN SAUNEY, OSWALD ALFRED SKEEN, LINDA WAILU AND RONALD JOCK WATSON ON BEHALF OF THE WIDI PEOPLE OF THE NEBO ESTATE #2
ApplicantAND: STATE OF QUEENSLAND
Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
4 APRIL 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the representatives of each Applicant and the State of Queensland attend a case management conference to be convened by the Deputy Registrar within the next two weeks for the purpose of considering the terms of the proposed draft order on the basis that the matter is to be listed for trial in the second half of 2015; and
2.the matter be adjourned until 5 May 2014.
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 380 of 2008
QUD 383 of 2013
QUD 492 of 2013
BETWEEN: FRANK BUDBY, LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE
ApplicantAND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE ONE OF RESPONDENT PARTIES
RespondentsBETWEEN: AMY LESTER, TRUDY CRANSTON, SAM DALLACHY, BETTY DOYLE, ANTHONY HENRY, MONA KIELLY, RANDOLPH POWDER, NORMAN ROSS, DAVINA TIBAROO, DEREK WILLIE AND NANCY WILLIE ON BEHALF OF THE BARADA KABALBARA YETIMARALA PEOPLE
ApplicantAND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE TWO OF RESPONDENT PARTIES
Respondents
BETWEEN:
EILEEN BERYL PEGLER, PAUL ROYCE BUTTERWORTH, MARILYN JOYCE ELIZABETH DUNCAN, ATHOL NOEL GLOTZ, LORRAINE JOYCE MCLENNAN, KENNETH STEWUART PETERS, GRAHAM IAN SAUNEY, OSWALD ALFRED SKEEN, LINDA WAILU AND RONALD JOCK WATSON ON BEHALF OF THE WIDI PEOPLE OF THE NEBO ESTATE #2
Applicant
AND:
STATE OF QUEENSLAND
RespondentJUDGE:
DOWSETT J
DATE:
4 APRIL 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
I am, today, addressing the resolution of problems arising out of overlaps between three claims, the Barada Barna claim, which has been on foot since 2008, and two subsequent and partially overlapping claims – one by the Widi People and one by the Barada Kabalbara Yetimarala People (the “BKY People”) – both of which claims were commenced in 2013. The Widi People have, however, been a party to the Barada Barna claim since shortly after notification. The conduct of the Barada Barna claim has not been exemplary. As a result, in April 2013, it was struck out for want of prosecution or abuse of process. In December 2013, that decision was set aside by the Full Court.
In order to facilitate resolution of the overlap problems, Barada Barna proposes that the overlapping areas should be excised from the other claims and made the subject of separate applications to be heard with the Barada Barna claim. The other applicants, however, suggest the reverse approach. They suggest that the overlap areas be excised from the Barada Barna claim, and that such claim should then proceed with respect to the balance. The overlap problems should then be resolved as part of the substantive claims raised by the Widi People and the BKY People.
Were all three claims roughly contemporaneous in time, and had they only been recently commenced, I am inclined to think that I would have adopted the course advanced by the Widi People and the BKY People. The fact is, however, that although the Barada Barna People may have prosecuted their claim with little apparent enthusiasm, it has been on foot since 2008. There can be little doubt that the other claim groups have been aware of it since its inception or shortly thereafter, given the system of notification. Given that they must have known that on the basis of traditional knowledge, they had overlapping claims, it was for them to have advanced their claims in a far more timely way than they have done.
It is true that the Widi People became respondents to the Barada Barna application. At least to that extent, they showed their hand. On the other hand, by appearing in those proceedings, they effectively encouraged everybody to believe that they were happy to have the overlap problems resolved in the Barada Barna proceedings. I consider that both the Widi People and the BKY People have stood by and allowed this matter to proceed a very long way without taking any steps to make it clear that they intended to prosecute their own claims over the overlap areas. In my view, it would be very unfair to the Barada Barna People now to delay the trial of any part of their claim, simply to accommodate claims which ought to have been advanced at a much earlier stage.
The Widi People and the BKY People assert that it would be more efficient to approach the matter in the way which they suggest. I am unpersuaded as to that assertion. I do not accept that either of them is entitled to claim that they are being unfairly dragged into somebody else’s litigation. They have known that litigation was on foot for a very long time, and they must have been aware of the effect it would have on them.
On the other hand, I accept that some delay has occurred as the result of the strike out proceedings and appeal. I am therefore willing to defer the trial for some months. It was originally to commence early in March 2015. I will now seek to have it heard in the second half of 2015. Hopefully, that should allow the BKY People and the Widi People to do whatever has to be done in order to be ready for trial. It would also assist the Land Councils in securing such funding as may be necessary in the new financial year. Another matter which has been ventilated today has been the State’s desire to separate out the issue of extinguishment from that of connection.
I do not automatically assume that the issues can be, or should be separated in that way. However, I shall consider the matter again when the State has provided rather more specific evidence as to why it would be so onerous for it to seek to litigate that issue at the same time as the question of connection. In those circumstances, I adjourn all of the applications before me until the morning of 5 May 2014.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 19 June 2014
SCHEDULE ONE OF RESPONDENT PARTIES – QUD 380 OF 2008
Respondents:
Second Respondent: COMMONWEALTH OF AUSTRALIA
Third Respondent: CENTRAL HIGHLANDS REGIONAL COUNCIL
Fourth Respondent: ISAAC REGIONAL COUNCIL
Fifth Respondent: MACKAY REGIONAL COUNCIL
Sixth Respondent: GRAHAM BELL
Seventh Respondent: NORMAN ABRAHAM JOHNSON SNR
Eighth Respondent: NORTH QUEENSLAND LAND COUNCIL ABORIGINAL
CORPORATION
Ninth Respondent: NANCY RIEHL
Tenth Respondent: AMANDA SAUNEY
Eleventh Respondent: COLLEEN SAUNEY
Twelfth Respondent: ERROL SAUNEY
Thirteenth Respondent: JOANNE SAUNEY
Fourteenth Respondent: JOSHUA SAUNEY
Fifteenth Respondent: LANCE SAUNEY
Sixteenth Respondent: LINDSAY SAUNEY
Seventeenth Respondent: MAXINE SAUNEY
Eighteenth Respondent: NIKITA SAUNEY
Nineteenth Respondent: ROSS SAUNEY
Twentieth Respondent: SHANE SAUNEY
Twenty First Respondent: TONY SMALLWOODS
Twenty Second Respondent: LINDA JOYCE WAILU
Twenty Third Respondent: CELESTE WALSH
Twenty Fourth Respondent: DALEY WHITE
Twenty Fifth Respondent: DAMIAN WHITE
Twenty Sixth Respondent: DANIEL WHITE
Twenty Seventh Respondent: SAMANTHA WHITE
Twenty Eighth Respondent: KATHLEEN WINDSOR
Twenty Ninth Respondent: ERGON ENERGY CORPORATION LIMITED
Thirtieth Respondent: TELSTRA CORPORATION LIMITED
Thirty First Respondent: ANGLO COAL (GERMAN CREEK) PTY LTD
Thirty Second Respondent: ANGLO COAL (GROSVENOR) PTY LTD
Thirty Third Respondent: BISTROTEL PTY LTD
Thirty Fourth Respondent: BNG (SURAT) PTY LTD
Thirty Fifth Respondent: BOWEN CENTRAL COAL PTY LTD
Thirty Sixth Respondent: CAPCOAL MINE JOINT VENTURERS
Thirty Seventh Respondent: CENTRAL QUEENSLAND PIPELINE PTY LTD
Thirty Eighth Respondent: CHERWELL CREEK COAL PTY LTD
Thirty Ninth Respondent: ENERGY MINERALS PTY LTD
Fortieth Respondent: EXXARO AUSTRALIA PTY LTD
Forty First Respondent: MARUBENI COAL PTY LTD
Forty Second Respondent: MATILDA COAL PTY LIMITED
Forty Third Respondent: MIDDLEMOUNT COAL PTY LTD
Forty Fourth Respondent: MORANBAH NORTH COAL PTY LTD
Forty Fifth Respondent: MORANBAH NORTH MINE JOINT VENTURERS
Forty Sixth Respondent: MORANBAH SOUTH JOINT VENTURERS
Forty Seventh Respondent: NEBO CENTRAL COAL PTY LTD
Forty Eighth Respondent: NEW SOUTH OIL PTY LTD
Forty Ninth Respondent: NIPPON STEEL AUSTRALIA PTY LIMITED
Fiftieth Respondent: NORTH QUEENSLAND PIPELINE NO 1 PTY LTD
Fifty First Respondent: NORTH QUEENSLAND PIPELINE NO 2 PTY LTD
Fifty Second Respondent: OME RESOURCES AUSTRALIA PTY LTD
Fifty Third Respondent: PEABODY BB INTERESTS PTY LTD
Fifty Fourth Respondent: PEABODY COPPABELLA PTY LTD
Fifty Fifth Respondent: PEABODY MOORVALE WEST PTY LTD
Fifty Sixth Respondent: PEABODY WEST BURTON PTY LTD
Fifty Seventh Respondent: PEABODY WEST WALKER PTY LTD
Fifty Eighth Respondent: QUEENSLAND COAL PTY LIMITED
Fifty Ninth Respondent: RIBFIELD PTY LTD
Sixtieth Respondent: SUMISHO COAL DEVELOPMENT QUEENSLAND
Sixty First Respondent: VALE AUSTRALIA (CQ) PTY LTD
Sixty Second Respondent: VALE AUSTRALIA (IP) PTY LTD
Sixty Third Respondent: VALE COAL EXPLORATION PTY LTD
Sixty Fourth Respondent: WESTFIELD LTD
Sixty Fifth Respondent: ARDAY PTY LTD
Sixty Sixth Respondent: JOHN THOMAS BAKER
Sixty Seventh Respondent: MARNIE LOUISE BAKER
Sixty Eighth Respondent: ANTHONY JOHN BELLA
Sixty Ninth Respondent: EDWARD MARTIN BELLA
Seventieth Respondent: MARTIN JOSEPH BELLA
Seventy First Respondent: PETER ANDREW BELLA
Seventy Second Respondent: REGENA FRANCES BELLA
Seventy Third Respondent: ROBERT JAMES BELLA
Seventy Fourth Respondent: STEPHEN EDWARD BELLA
Seventy Fifth Respondent: ROBERT JOHN BORG
Seventy Sixth Respondent: HAROLD GEORGE BRADFORD
Seventy Seventh Respondent: RUTH BRADFORD
Seventy Eighth Respondent: LAWRENCE PAUL DANASTAS
Seventy Ninth Respondent: MARION CARMEL DANASTAS
Eightieth Respondent: KATHRYN HEAD
Eighty First Respondent: THOMPSON HEAD
Eighty Second Respondent: RAYE MARILYN O'SULLIVAN
Eighty Third Respondent: ROBERT ALAN O'SULLIVAN
Eighty Fourth Respondent: STEPHEN MICHAEL PETTS
Eighty Fifth Respondent: WAYNE HOWARD PETTS
Eighty Sixth Respondent: CRAIGIE ROSS
Eighty Seventh Respondent: GRAHAM ROSS
Eighty Eighth Respondent: KIM FRANCES WILLOUGHBYSCHEDULE TWO OF RESPONDENT PARTIES – QUD 383 OF 2013
Respondents:
Second Respondent: CENTRAL HIGHLANDS REGIONAL COUNCIL
Third Respondent: ISAAC REGIONAL COUNCIL
Fourth Respondent: LIVINGSTONE SHIRE COUNCIL
Fifth Respondent: MACKAY REGIONAL COUNCIL
Sixth Respondent: ROCKHAMPTON REGIONAL COUNCIL
Seventh Respondent: WOORABINDA ABORIGINAL SHIRE COUNCIL
Eighth Respondent: ALECIA FAY BOWMAN
Ninth Respondent: ARNOLD JOHN BOWMAN
Tenth Respondent: TREVOR ALWYN BOWMAN
Eleventh Respondent: CECIL BROWN JNR
Twelfth Respondent: GREGORY BROWN
Thirteenth Respondent: FRANK BUDBY
Fourteenth Respondent: GRAHAM BUDBY
Fifteenth Respondent: LES BUDBY
Sixteenth Respondent: STACEY BUDBY
Seventeenth Respondent: CARMEL DARGAN
Eighteenth Respondent: TELSTRA CORPORATION LIMITED
Nineteenth Respondent: ANGLO COAL (FOXLEIGH) PTY LTD
Twentieth Respondent: CAML RESOURCES PTY LTD
Twenty First Respondent: NIPPON STEEL & SUMITOMO METAL AUSTRALIA PTY LTD
Twenty Second Respondent: ORION GOLD NL
Twenty Third Respondent: PEABODY BB INTERESTS PTY LTD
Twenty Fourth Respondent: TREVOR HAROLD BRADFORD
Twenty Fifth Respondent: LAWRENCE PAUL DANASTAS
Twenty Sixth Respondent: MARION CARMEL DANASTAS
Twenty Seventh Respondent: PETER DONALD DUNBAR
Twenty Eighth Respondent: JOHN SAMUEL JONES
Twenty Ninth Respondent: ROSS JOSEPH OLIVE
Thirtieth Respondent: PAN INVESTMENTS PTY LTD
Thirty First Respondent: WAYNE HOWARD PETTS
Thirty Second Respondent: LEONE GALE PHILIPSON
Thirty Third Respondent: NEVILLE JOHN PHILIPSON
Thirty Fourth Respondent: BRIAN LLOYD POWNALL
Thirty Fifth Respondent: JOHN CHARLES POWNALL
Thirty Sixth Respondent: JUDITH LOUISE POWNALL
Thirty Seventh Respondent: KELVIN ROY SIBSON
Thirty Eighth Respondent: KELVIN ROY SIBSON ATF DALE KELVIN
Thirty Ninth Respondent: LYNETTE ESTELLE SIBSON
Fortieth Respondent: EDWARD GEORGE SMITH
Forty First Respondent: ELIZABETH JOAN SMITH
Forty Second Respondent: RUSSELL CHARLES SMITH
Forty Third Respondent: CRAIG LYNTON WIGHT
Forty Fourth Respondent: MARK LYNTON WIGHT
Forty Fifth Respondent: RACHEL GAY WIGHT
Forty Sixth Respondent: ROBERT LYNTON WIGHT
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