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Butterworth v Queensland

Butterworth v Queensland

Case [2010] FCA 325 26 March 2010

Native Title Determination

Indigenous Peoples & Native Title Law

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FEDERAL COURT OF AUSTRALIA
Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325

Citation: Butterworth on behalf of the Wiri Core Country Claim v State of Queensland [2010] FCA 325

Parties: JAMES HENRY BUTTERWORTH & ORS ON BEHALF OF THE WIRI CORE COUNTRY CLAIM v STATE OF QUEENSLAND & ORS

File number: QUD 372 of 2006

Judge: LOGAN J

Date of judgment: 26 March 2010

Catchwords: ABORIGINES – Native Title – Dismissal of parties – Where parties joined as of right by s 84(3) of the Native Title Act 1993 (Cth) – Where joined parties are already members of the Native Title claim group – Whether to dismiss under s 84(8) of the Native Title Act 1993 (Cth) – Held parties dismissed as interests already represented by the applicant and no present need for separate representation

Legislation: Native Title Act 1993 (Cth) ss 61, 62A, 84

Cases cited: Kulkagal People v State of Queensland [2003] FCA 163 cited
Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland & Ors (2004) 139 FCR 96 considered
Bidjara People No. 2 v State of Queensland [2003] FCA 324 considered
Combined Dulabed and Malanbarra/Yidinji Peoples v Queensland (2004) 214 ALR 306 considered

Date of hearing: 26 March 2010

Place: Townsville

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 41

Counsel for the Applicant: Mr A Preston

Solicitor for the Applicant: North Queensland Land Council

Solicitor for the State of Queensland: Crown Law

Solicitor for Isaac Regional Council & Mackay Regional Council: Gilkerson Legal

Solicitor for Marubeni Coal Pty Ltd, Nippon Steel Australia Pty Limited, Queensland Coal Pty Limited & Sumisho Coal Development Queensland: Blake Dawson

Solicitor for Arrow Energy Limited & CH4 Pty Limited: Mr Oliver Gilkerson as agent

Solicitor for Daniel Edward, Noel James Griffin & Errol Henry Comerford: MacDonnells Law

Solicitor for Judith Elizabeth Cook, Noel Michael Cook, Alexander Bernard Turner, Neil John Whitson (as personal representatives of Dina Vera Turner deceased): Thynne & Macartney

Solicitor for Xstrata Coal Queensland Pty Ltd: Allens Arthur Robinson

Solicitor for Guiseppe Borg, Sally Borg, May C Brieffies, Peter E Brieffies, Thomas Victor Deguara (as Trustee for the TV Deguara Family Trust & Barbara Anne Deguara as Trustee for the GJ Deguara Family Trust): CJ Cooper & Associates

Appearance for the Respondents joined by virtue of s 84(3) of the Native Title Act 1993 (Cth): Mr Johnson appeared in person on his own behalf and on behalf of the other such Respondents

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 372 of 2006

BETWEEN:
JAMES HENRY BUTTERWORTH & ORS ON BEHALF OF THE WIRI CORE COUNTRY CLAIM
Applicant

AND:
STATE OF QUEENSLAND & ORS
Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

26 MARCH 2010

WHERE MADE:

TOWNSVILLE

THE COURT ORDERS THAT:
1.Norman Abraham Johnson, Kahlia Charmaine Mallie, Norman Abraham Yurunga Johnson, Ruth Johnson, Coedie McAvoy, Duncan Johnson, Sarah Jane Frescon, Bowman R. Johnson, Hedley Bowman Henningsen and Alana Page are dismissed as parties to the proceedings.
2.No…

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.

Continue reading Butterworth v Queensland

Details

AGLC: Butterworth v Queensland [2010] FCA 325
Case: [2010] FCA 325
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Butterworth on behalf of the Wiri Core Country Claim v State of Queensland was heard. The applicants, James Henry Butterworth and others on behalf of the Wiri Core Country claim, sought a native title determination against the State of Queensland and others. The legal issues centred around the joinder of certain parties to the proceedings under the Native Title Act 1993 (Cth) and whether they should be dismissed as parties despite their statutory right to join. The court had to decide if these parties, already members of the native title claim group, needed separate representation.

The court reasoned that while s 84(3) of the Native Title Act provided that certain persons could join proceedings as of right, s 84(8) allowed the court to dismiss parties if their interests were properly represented. The applicants, authorised by the native title claim group, were representing all members, including those seeking to join. The court found that the applicants were diligently representing the group's interests and that there was no present need for the named individuals to have separate representation. The court dismissed the individuals as parties but granted them liberty to apply for joinder if necessary in the future.

The final orders of the court dismissed Norman Abraham Johnson, Kahlia Charmaine Mallie, and others from the proceedings, granted them liberty to apply for joinder, and made no order as to costs.

Orders