Doyle on behalf of the Kalkadoon People #4 v State of Queensland (No 2)
[2010] FCA 1398
FEDERAL COURT OF AUSTRALIA
Doyle on behalf of the Kalkadoon People #4 v State of Queensland (No 2) [2010] FCA 1398
Citation: Doyle on behalf of the Kalkadoon People #4 v State of Queensland (No 2) [2010] FCA 1398 Parties: WILLIAM DOYLE & ORS ON BEHALF OF THE KALKADOON PEOPLE #4 v STATE OF QUEENSLAND & ORS
WILLIAM DOYLE & ORS ON BEHALF OF THE KALKADOON PEOPLE #5 v STATE OF QUEENSLAND & ORS
File number(s): QUD 579 of 2005
QUD 15 of 2006Judge: COLLIER J Date of judgment: 8 December 2010 Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Native Title Act 1993 (Cth) ss 61, 84
Federal Court Rules O 35(a) r 3(2)(d)Date of hearing: 8 December 2010 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr D Rangiah SC Solicitor for the Applicant: Queensland South Native Title Services Counsel for the State of Queensland: Mr G Hiley QC Solicitor for the State of Queensland: Crown Law Solicitor for the Boulia Shire Council, Cloncurry Shire Council, McKinlay Shire Council, Mount Isa City Council and Burke Regional Council: Ms D Cartledge of Gilkerson Legal Solicitor for Various Pastoralists: Mr M Boge of Thynne & Macartney Solicitor for Mount Isa Mines Limited, Xstrata Copper Exploration Pty Ltd and Noranda Pacific Pty Limited: Mr S Cobb of Allens Arthur Robinson Solicitor for Ethel Page: Mr DA Connolly of Connolly’s Lawyers Solicitor for Roverton Pty Ltd: Mr F Chio of Gadens Lawyers Solicitor for Ergon Energy Corporation Limited: Mr S Sivarajah of MacDonnells Law
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 579 of 2005
BETWEEN: WILLIAM DOYLE & ORS ON BEHALF OF THE KALKADOON PEOPLE #4
ApplicantAND: STATE OF QUEENSLAND & ORS
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
8 DECEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
Joseph Sandham Rogers, Italo Foschi, Elizabeth June Holt and Ernest William Arthur Holt cease to be parties to these proceedings.
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 15 of 2006
BETWEEN: WILLIAM DOYLE & ORS ON BEHALF OF THE KALKADOON PEOPLE #5
ApplicantAND: STATE OF QUEENSLAND & ORS
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
8 DECEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
Joseph Sandham Rogers, Italo Foschi, Elizabeth June Holt and Ernest William Arthur Holt cease to be parties to these proceedings.
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 579 of 2005
QUD 15 of 2006
BETWEEN: WILLIAM DOYLE & ORS ON BEHALF OF THE KALKADOON PEOPLE #4
ApplicantAND: STATE OF QUEENSLAND & ORS
Respondent
JUDGE:
COLLIER J
DATE:
8 DECEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
By notice of motion the applicant in the substantive proceedings seeks orders pursuant to s 84(8) of the Native Title Act 1993 (Cth) (“the Act”) or O 35(a) r 3(2)(d) of the Federal Court Rules that each of the following respondents cease to be parties to the proceedings:
Joseph Sandham Rogers, Italo Foschi, Elisabeth June Holt and Ernest William Arthur Holt.
The background to this notice of motion is that on 28 October 2010 I ordered, in summary, that by 4 November 2010 each of the respondents to the substantive proceedings (other than the Commonwealth and Mrs Ethel Page) who had not indicated in writing whether they adopted the admissions made by the first respondent was to write to the applicant and the Court stating whether or not they adopted the first respondent’s admissions, and if they did not adopt those admissions, giving an explanation as to why not (“Order 1”).
On 28 October 2010, I also ordered that any respondent who was required to comply with Order 1 and had not complied with that order by 4 November was required to show cause by the next directions hearing as to why they should not be removed as respondents to these proceedings.
I understand that none of Mr Joseph Roberts, Mr Italo Foschi, Ms Elizabeth Holt or Mr Ernest Holt has complied with Order 1. Ms Olsen of QSNTS deposes to this fact in her affidavit filed 1 December 2010. I note further that there is nothing on the Court file from Mr Foschi, Mr Holt or Ms Holt, and that although Mr Rogers wrote to the Court on 8 November 2010 his letter did not address the admissions of the State.
There is evidence before the Court that Mr Rogers has said that he asserts an interest in land lying outside the claim area. Unfortunately, Mr Rogers is not here to say one way or the other whether that is the case, and the fact that there has been no material filed by him does not assist matters.
The Court has power under s 84 of the Act to deal with parties where proceedings are brought under s 61 of the Act, which is the case here. In particular, subs (8) and (9) provide for the removal of parties in appropriate circumstances.
In written submissions Mr Rangiah for the applicant also drew my attention to s 37M of the Federal Court of Australia Act 1976 (Cth), which states that:
The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and as efficiently as possible.
In my view this is a relevant provision to take into account in considering whether or not parties should be removed as respondents in proceedings such as these.
In summary, Mr Rogers, Mr Foschi, Ms Holt and Mr Holt have not complied with my orders of 28 October 2010. Each of them is therefore required to show cause why they should not be removed as parties to these proceedings. The matter has been set down for trial commencing on 28 February 2011. The purpose of my orders of 28 October 2010 was to enable the parties and the court to identify any issues then remaining in controversy in these proceedings.
The failure of Mr Foschi, Mr Holt and Ms Holt to comply with my orders of 28 October 2010 and to inform the applicant whether they adopted the admissions of the first respondent results in all matters remaining in issue as between them and the applicant. If they remain respondents, the length and cost of the trial will be significantly increased. None of these parties have shown any interest in actively participating in the proceedings. In the circumstances I consider it is appropriate that it be ordered that Mr Foschi, Ms Holt and Mr Holt cease to be parties pursuant to s 84(8) of the Act or O 35A r 3(2)(d) of the Federal Court Rules.
For the same reason I consider that Mr Rogers should also cease to be a party to these proceedings. In addition, as I have already indicated, I note that Mr Rogers has advised QSNTS that his interest is not in land covered by the Kalkadoon native title applications, and therefore he does not have an interest which may be affected by a determination in these proceedings.
Accordingly, the Court orders that Joseph Sandham Rogers, Italo Foschi, Elizabeth June Holt and Ernest William Arthur Holt cease to be parties to these proceedings.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 15 December 2010
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