Fazeldean on behalf of the Thalanyji People v State of Western Australia

[2014] FCA 234

FEDERAL COURT OF AUSTRALIA

Fazeldean on behalf of the Thalanyji People v State of Western Australia [2014] FCA 234

Citation:	Fazeldean on behalf of the Thalanyji People v State of Western Australia [2014] FCA 234
Parties:	JOHN FAZELDEAN, BRIAN HAYES, ALBERT HAYES, ANNE HAYES, SHIRLEY HAYES AND RODNEY HICKS ON BEHALF OT HE THALANYJI PEOPLE v STATE OF WESTERN AUSTRALIA, COMMONWEALTH OF AUSTRALIA , YAMATJI MARLPA ABORIGINAL CORPORATION, FORREST & FORREST PTY LTD and TELSTRA CORPORATION LIMITED
File number:	WAD 104 of 2010
Judge:	NORTH J
Date of judgment:	7 March 2014
Date of hearing:	7 March 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	The applicant did not appear
Counsel for the First Respondent:	Mr G Ranson
Solicitor for the First Respondent:	State Solicitors Office

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 104 of 2010

BETWEEN:

JOHN FAZELDEAN, BRIAN HAYES, ALBERT HAYES, ANNE HAYES, SHIRLEY HAYES AND RODNEY HICKS ON BEHALF OT HE THALANYJI PEOPLE
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION
Third Respondent

FORREST & FORREST PTY LTD
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

JUDGE:	NORTH J
DATE OF ORDER:	7 MARCH 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The proceeding is struck out.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 104 of 2010

BETWEEN:

JOHN FAZELDEAN, BRIAN HAYES, ALBERT HAYES, ANNE HAYES, SHIRLEY HAYES AND RODNEY HICKS ON BEHALF OT HE THALANYJI PEOPLE
Applicant

AND:

STATE OF WESTERN AUSTRALIA
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION
Third Respondent

FORREST & FORREST PTY LTD
Fourth Respondent

TELSTRA CORPORATION LIMITED
Fifth Respondent

JUDGE:	NORTH J
DATE:	7 MARCH 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

1. Before the Court is an interlocutory application filed by the first respondent, the State of Western Australia, on 18 February 2014. The Court was informed from the bar table that it was served on the applicant’s solicitor by mail on 24 February 2014, and by email shortly before that date or on that date. 

2. The interlocutory application seeks to address the failure of the applicant to comply with programming orders made by Barker J on 29 October 2013.  By order [9], his Honour required the applicant to file and serve any linguistic, anthropological, genealogical or historical reports on which it intends to rely by 10 January 2014.

3. The applicant’s non-compliance with this order follows earlier non-compliance with order [6] of his Honour’s orders, by which the applicant was required to file and serve a statement of contentions by 1 December 2013. 

4. The applicant has not responded to the first respondent’s interlocutory application and has not appeared today at the hearing.  The solicitor for the applicant, Mr Milder, left a telephone message with the Court yesterday afternoon indicating that he had suffered illness which required hospitalisation for some periods in February and March.  The message gave no indication of a response to the allegation of non-compliance with the orders, nor any other details which would allow the Court to have confidence that the applicant intended to progress the matter.

5. The applicant’s conduct throughout the interlocutory stages has been dilatory to the extent of causing frustration and extra work both to the first respondent and to the Court.  Mr Milder has been particularly unresponsive to any attempts to relieve that frustration. What is evident from his conduct is that his failure to progress the application competently is prejudicing the interests of the applicant.  The Court observes that, from what is known and has been recorded in these reasons, the applicant would be well advised to consider its ongoing representation in order to ensure that its interests are safeguarded.

6. In the circumstances, the Court is left with no real alternative than to strike out the application for the applicant’s failure to comply with order [9] of the orders of Barker J, for its failure to appear today, and against the background of its failure to comply with the order to file a statement of contentions.  Accordingly the proceeding will be struck out.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 17 March 2014