Dillon on behalf of the Barunggam People v State of Queensland

[2011] FCA 713

FEDERAL COURT OF AUSTRALIA

Dillon on behalf of the Barunggam People v State of Queensland [2011] FCA 713

Citation:		Dillon on behalf of the Barunggam People v State of Queensland [2011] FCA 713
Parties:		AVERIL DILLON, WARRY JOHN STANLEY, DOROTHY GRACE DAYLIGHT, PATRICK JOHN BUNDI, ROSEMARY BELL AND HOPE BOND ON BEHALF OF THE BARUNGGAM PEOPLE v STATE OF QUEENSLAND
File number:		QUD 178 of 2010
Judge:		REEVES J
Date of judgment:		23 June 2011
Catchwords:		NATIVE TITLE – application for determination of native title – application refused by Native Title Registrar pursuant to s 190A of the Native Title Act 1993 (Cth) – application did not satisfy the conditions under s 190B of the Act – consideration of s 190F(6) of the Act – application not amended nor likely to be amended such that the Registrar would reconsider original refusal to accept the application – no other reason why application should not be dismissed Held: Application for determination of native title is dismissed pursuant to s 190F(6) of the Act
Legislation:		Native Title Act 1993 (Cth) ss 61, 190A, 190B, 190B(5)(b), 190B(5)(c), 190B(6), 190B(7), 190F(5), 190F(5)(a)(i), 190F(5)(b), 190F(6)
Date of hearing:	12 April 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	Mr A Preston
Solicitor for the Respondent:	Ms S Svensson of Crown Law

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 178 of 2010

BETWEEN:	AVERIL DILLON, WARRY JOHN STANLEY, DOROTHY GRACE DAYLIGHT, PATRICK JOHN BUNDI, ROSEMARY BELL AND HOPE BOND ON BEHALF OF THE BARUNGGAM PEOPLE Applicant
AND:	STATE OF QUEENSLAND Respondent

JUDGE:	REEVES J
DATE OF ORDER:	23 JUNE 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application filed on 21 May 2010 be dismissed under s 190F(6) of the Native Title Act 1993 (Cth).

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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 178 of 2010

BETWEEN:	AVERIL DILLON, WARRY JOHN STANLEY, DOROTHY GRACE DAYLIGHT, PATRICK JOHN BUNDI, ROSEMARY BELL AND HOPE BOND ON BEHALF OF THE BARUNGGAM PEOPLE Applicant
AND:	STATE OF QUEENSLAND Respondent

JUDGE:	REEVES J
DATE:	23 JUNE 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 21 May 2010, Averil Dillon and others as the applicant on behalf of the Barunggam People filed an application for determination of native title under s 61 of the Native Title Act 1993 (Cth) (“the Act”). The application related to a large area of land and waters lying north and south of the Warrego Highway between the towns of Dalby and Dulacca in south-west Queensland.

2. On 16 September 2010, a delegate of the Native Title Registrar refused to accept the application pursuant to s 190A of the Act. The delegate concluded that the application did not satisfy all of the conditions in s 190B of the Act. In particular, she concluded it did not satisfy the requirements of ss 190B(5)(b) and (c), 190B(6) and 190B(7).

3. Prior to the delegate’s decision, Ms Patricia Conlon and others filed a notice of motion (on 20 August 2010) seeking orders that they become parties to the application and that the application be struck out.  This notice of motion was supported by affidavits by Ms Conlon and others, which essentially alleged that the application had not been properly authorised.

4. When the matter was listed before me for first directions on 17 December 2010, I made the following orders:

   1.The notice of motion, filed 20 August 2010 by Ms Conlon, be set down for hearing at 10.15am (QLD) on 25 February 2011.

   2.The Applicant and the respondent in the proceedings are to file and serve any affidavit material upon which they wish to rely in relation to the notice of motion by the close of business on 28 January 2011.

   3.The parties are to exchange an outline of their submissions in relation to the notice of motion by close of business on 18 February 2011.

   4.The Registrar conduct a case management conference between the parties and the putative parties (that is, the parties that are seeking to be joined) in an endeavour to resolve the issues raised by the notice of motion by close of business on 18 February 2011.

5. Prior to the hearing on 25 February 2011, Ms Margaret McLeod and others on behalf of the Western Wakka Wakka native title group filed a notice of motion in the Court seeking orders similar to those sought by Ms Conlon.

6. At the hearing on 25 February 2011, Mr Andrew Preston appeared on behalf of the applicant.  After hearing submissions from him, I made the following orders:

   1.Within seven (7) days Mr Andrew Preston provide written notice to each of the members of the Applicant informing them that:

   (a)if any one of them does not file a document with the Court by 8 April 2011 stating that he or she wishes to amend the application and stating the precise form of the proposed amendment, the Court may deal with the application pursuant to s 190F(6) of the Native Title Act 1993 (Cth); and

   (b)the further consideration of the application has been adjourned to 9.30am on 12 April 2011; and

   (c)as an alternative to (a) and (b), the Applicant may file a notice of discontinuance of the application by 8 April 2011.

   2.Leave is granted to the Applicant to file a notice of discontinuance of the application by 8 April 2011.

   3.The further consideration of the application and the two notices of motion is adjourned until 9.30am on 12 April 2011.

7. The applicant did not file a notice of discontinuance of the application by 8 April 2011.

8. At the hearing on 12 April 2011, Mr Preston appeared on behalf of four of the six members of the applicant, namely Averil Dillon, Dorothy Daylight, Rosemary Bell and John Stanley. He informed me that he had not obtained instructions to appear on behalf of the other two members of the applicant. He also informed me that he had circulated to each member of the applicant a copy of my orders of 25 February 2011 in accordance with the terms of those orders. Mr Preston frankly conceded that, based upon his discussions with the four members of the applicant from whom he had instructions, there was “little realistic hope of overcoming the impediments” presented by s 190F(6) of the Act.

9. That sub-section provides:

   The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if:

   (a)the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

   (b)in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

10. It applies in the circumstances set out in s 190F(5) of the Act as follows:

    Subsection (6) applies in a case where:

    (a)the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

    (i)it does not satisfy all of the conditions in section 190B; or

    (ii)it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

    (b)the Court is satisfied that the avenues for:

    (i)the reconsideration under section 190E of the Registrar’s decision; and

    (ii)the review under this section of the Registrar’s decision; and

    (iii)the review of orders made in the determination of an application under this section; and

    (iv)the review of the Registrar’s decision under any other law;

    have all been exhausted without the registration of the claim.

11. In this case, a delegate of the Registrar has refused to accept the application because it does not satisfy all of the conditions in s 190B of the Act: see s 190F(5)(a)(i). Furthermore, as a result of the failure of the applicant to take any action pursuant to my orders of 25 February 2011, I am satisfied that:

    (a)all of the avenues identified in s 190F(5)(b) of the Act have been exhausted;

    (b)this application has not been amended since its consideration by the delegate of the Registrar, and it is not likely to be amended such that the Registrar is likely to come to a different conclusion in relation to its registration; and

    (c)there is no other reason why this application should not be dismissed.

12. Accordingly, I order that the application filed on 21 May 2010 be dismissed under s 190F(6) of the Act.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:       23 June 2011