Ebsworth on behalf of the Wangkumarra People #2 v State of Queensland

[2006] FCA 1736

FEDERAL COURT OF AUSTRALIA

Ebsworth on behalf of the Wangkumarra People #2 v State of Queensland [2006] FCA 1736

MARTIN EBSWORTH AND OTHERS ON BEHALF OF THE WANGKUMARRA PEOPLE #2 v STATE OF QUEENSLAND AND OTHERS
QUD 6026 OF 1999

TAMBERLIN J
6 DECEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6026 OF 1999

BETWEEN:	MARTIN EBSWORTH AND OTHERS ON BEHALF OF THE WANGKUMARRA PEOPLE #2 Applicants
AND:	STATE OF QUEENSLAND AND OTHERS Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	6 DECEMBER 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6076 OF 1998

BETWEEN:	ROY BARKER AND OTHERS ON BEHALF OF THE MOROWARI TRIBAL ABORIGINAL CORPORATION AND OTHERS Applicants
AND:	NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS Respondents

JUDGE:	TAMBERLIN J
DATE OF ORDER:	6 DECEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The guillotine order as outlined in Order 2 made on 10 November 2006 is given effect and the applications are therefore dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6026 OF 1999

BETWEEN:	MARTIN EBSWORTH AND OTHERS ON BEHALF OF THE WANGKUMARRA PEOPLE #2 Applicants
AND:	STATE OF QUEENSLAND AND OTHERS Respondents

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6076 OF 1998

BETWEEN:	ROY BARKER AND OTHERS ON BEHALF OF THE MOROWARI TRIBAL ABORIGINAL CORPORATION AND OTHERS Applicants
AND:	NEW SOUTH WALES MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS Respondents

JUDGE:	TAMBERLIN J
DATE:	6 DECEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter concerns a Notice of Motion brought by the Applicants in each of two proceedings, NSD 6076 of 1998 and QUD 6026 of 1999, seeking to amend the applications. The Applicants in each of the proceedings are Mr Barker and Others on behalf of the Morowari People and Mr Ebsworth and Others on behalf of the Wangkumarra People respectively. Leave is sought to amend the applications and, effectively, to obtain either an extension of time or a waiver of the self-executing guillotine order made by me on 10 November 2006, which would take effect in the event that there was non-compliance with the orders made on that day. 

2. It is apparent that there has been non-compliance with the orders made by the Court on that occasion.  The real issue in the matter is not simply the fact that documents were served a day or so late, but rather that there are two substantive objections to the applications which call for dismissal, having regard to the history of these proceedings.  These concern the resolution of outstanding overlaps and the question of proper authorisation in relation to the amended applications. 

3. It is the latter issue which concerns me the most, although I consider that both are important.  Mr Hardie, who has sought leave to appear today on behalf of the Kunja, Budjiti and Kooma applicant groups, has indicated that there have been discussions with other groups which largely eliminate the overlaps in question.  However, there is no evidence of this before me except two affidavits of Ms Kristy Snape to the effect that the overlaps remain unresolved. Therefore it is difficult for me to tell at this time the extent to which any overlap exists. It seems to me that on the evidentiary material, the overlaps remain unresolved.  I accept what Mr Hardie has said, but I am not persuaded that all the overlap problems in relation to these applications have been disposed of.

4. On the more important question of proper authorisation, I am not persuaded that the evidence before me is sufficient to indicate that the amended applications have been properly authorised.  Having made the guillotine order, and having regard to the lengthy history of this matter and the extreme non-compliance that has taken place in the past, I am not prepared to vary the order which I made on 10 November 2006. This has the effect that both proceedings will be dismissed. 

5. There may be some prejudice caused as a result of this decision. Nevertheless, this is largely a self-inflicted problem.  The important point is that the matters should properly dealt with and due and proper authorisation must be obtained. The effect of the dismissal will mean there will have to be fresh proceedings instituted.  Nevertheless, I am of the opinion that the guillotine order ought to be given effect, and I am not persuaded that any reasonable ground has been shown to allow an extension of time in this matter.  I fear that if yet a further extension of time is granted in this matter, there will be a continuation of the long history of non-compliance with the orders of the Court. Accordingly, I dismiss each of the applications.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       13 December 2006

Solicitor for the Applicants:	Eddy Neumann Lawyers
Counsel for the Respondent:	Mr A Luchich
Solicitor for the Respondent (State of Queensland):	Crown Law
Solicitor for the Respondent (New South Wales Minister for Land and Water Conservation):	Crown Solicitor’s Office
Solicitor for the Kunja, Budjiti and Kooma Peoples:	Mr C Hardie Queensland South Native Title Services
Solicitor for Agforce Pastoralists:	Thynne & Macartney
Solicitor for the New South Wales Farmers Federation Pastoralists:	Bruce Stuart Dimarco
Date of Hearing:	6 December 2006
Date of Judgment:	6 December 2006