Gary Jean Pappin and Mary June Pappin on behalf of the Muthi Muthi People v NSW Minister for Land and Water Conservation

[2005] FCA 1430

FEDERAL COURT OF AUSTRALIA

Gary Jean Pappin and Mary June Pappin on behalf of the Muthi Muthi People v NSW Minister for Land & Water Conservation

[2005] FCA 1430

NATIVE TITLE – claimant application for determination of native title – compensation applications – failure to prosecute proceedings with due diligence – proceedings dismissed

Native Title Act 1993 (Cth)
Federal Court Rules, O 35A

GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE v NSW MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS

NSD 6079 OF 1998

GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE v NSW MINISTER FOR LAND AND WATER CONSERVATION
NSD 6164 OF 1998

GARY JEAN PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE v NSW MINISTER FOR LAND AND WATER CONSERVATION
NSD 6172 OF 1998

GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE v NSW MINISTER FOR LAND AND WATER CONSERVATION
NSD 6170 OF 1998

STONE J
12 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6079 OF 1998

BETWEEN:	GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS (See Schedule) RESPONDENTS
JUDGE:	STONE J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6164 OF 1998

BETWEEN:	GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6172 OF 1998

BETWEEN:	GARY JEAN PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 6170 OF 1998

BETWEEN:	GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 6079 OF 1998

BETWEEN:	GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION AND OTHERS (See Schedule) RESPONDENTS

NSD 6164 OF 1998

BETWEEN:	GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION RESPONDENT

NSD 6172 OF 1998

BETWEEN:	GARY JEAN PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION RESPONDENT

NSD 6170 OF 1998

BETWEEN:	GARY JEAN PAPPIN AND MARY JUNE PAPPIN ON BEHALF OF THE MUTHI MUTHI PEOPLE APPLICANT
AND:	NSW MINISTER FOR LAND AND WATER CONSERVATION RESPONDENT
JUDGE:	STONE J
DATE OF PUBLICATION OF REASONS:	12 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 1 September 2005, I made orders dismissing each of these proceedings pursuant to O 35A r 3(1) of the Federal Court Rules.  I indicated that I would provide written reasons at a later date.  These are my reasons.

   Background

2. On 30 September 1998, the proceeding now known as NSD 6079 of 1998 was commenced by the filing of an application under the Native Title Act 1993 (Cth) (‘the NTA’) on behalf of the Muthi Muthi People for a determination of native title. The claim relates to an area of land and inland waters in south western New South Wales. As it presently stands, the application is brought by Ms Mary June Pappin and Mr Gary Jean Pappin on behalf of the Muthi Muthi People.

3. Since at least as early as July 2001, the parties have been engaged in mediation of the claim.  This has included mediation of disputes within the claimant group.  However, these attempts have been largely unsuccessful and no significant steps have been taken by those representing the applicant in this proceeding for some time.

4. On 31 March 2005, Mr Pappin appeared at a directions hearing in this proceeding on behalf of the applicant. On this date I indicated that the proceeding did not appear to be making any progress and that it would have difficulty in moving forward without connection material. While not expressing a concluded view on this issue, I observed that as it presently stood the proceeding appeared to have no reasonable prospect of proceeding to a hearing, let alone a successful determination in favour of the applicant group. Mr Pappin stated that, at least in his view, progress was being made in reaching an agreement outside the scope of the NTA; that is, in respect of matters not directly in issue in the proceedings in this Court. He sought an adjournment of three months at which time he indicated he would withdraw the matter if no significant progress had been made. I acceded to this request and the proceeding was adjourned to 30 June 2005.

5. On 30 June 2005, the Court was informed by Ms Phillips, appearing for Mr Pappin, that discussions between the applicant group and third parties were continuing and anthropological and historical work had begun.  I indicated, however, that the progress said to have been made in the foregoing three months was, in itself, insufficient and progress had to continue prior to the next directions hearing.

6. On 1 September 2005, Ms Phillips, again appearing on Mr Pappin’s behalf, indicated that he was content for the application to be dismissed as insufficient progress had been made.  Ms Phillips also stated that she was instructed that Mr Pappin and Ms Pappin, the other member of the applicant group, were aware that they were required to take steps to progress this matter or it would be liable for dismissal.

7. In its present form, the claimant application has a number of problems including, among other things, the description of the claimant group and the lack of connection material.  As noted above, the applicant has not taken any significant steps to progress the matter for a number of years.  Since October 2000 the claimant application has been before the Court or a Registrar of the Court fifteen times without any appreciable progress being made.   However, in saying this I should not be taken to be criticising those representing the Muthi Muthi People as applications of this type are commonly complex.  That said, proceedings in this Court cannot continue on foot indefinitely in circumstances where no significant steps are being taken by the applicant.

8. In my view, the applicant, in failing to take adequate steps to prosecute the proceeding, was in default under O 35A r 2(1)(f) of the Federal Court Rules. As such, the Court is empowered to dismiss the application pursuant to O 35A r 3(1). I accept that the failure to prosecute the claimant application is not due to deliberate neglect on the part of the applicant group. Further, the applicant group appears to be actively engaged in negotiations with third parties in respect of matters outside the scope of the NTA. However, this does not alter the fact that the applicant has not taken adequate steps to prosecute its claim under the NTA. It is the claimant application before the Court and the claims made therein that the applicant must prosecute with due diligence. In my opinion, this has not been done.

9. The above comments in respect of the claimant application (NSD 6079 of 1998) apply with equal weight to the compensation claims, namely NSD 6164, 6170 and 6172 of 1998.  So much appears to be accepted by all the parties.

10. For the above reasons, I dismissed the applications. However, I should note two further matters. First, as those persons representing the Muthi Muthi people in these proceedings were not present in Court on 1 September 2005, should there be any objection to these orders there are provisions in the Federal Court Rules to have such orders set aside in certain circumstances. Secondly, I am informed by Ms Phillips that NSW Native Title Services will continue to conduct anthropological and historical research in the claim area and assist the claimant group in their negotiations outside the scope of the NTA.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            12 October 2005

Counsel for NSW Native Title Services Ltd:	Ms S Phillips
Solicitor for NSW Native Title Services Ltd:	Mr B Camilleri
Solicitor for the NSW Minister for Land and Water Conservation:	Crown Solicitor for the State of New South Wales
Solicitor for NSW Farmers’ Association:	The Bruce & Stewart Commercial Practice
Solicitor for Telstra Corporation Ltd:	Blake Dawson Waldron
Date of Hearing:	1 September 2005
Date of Orders:	1 September 2005
Date of Publication of Reasons:	12 October 2005

Gary Jean Pappin and Mary June Pappin on behalf of the Muthi Muthi People v NSW Minister for Land & Water Conservation

[2005] FCA 1430

SCHEDULE

RESPONDENTS IN NSD 6079 of 1998

National Parks Association of NSW Inc

Keith Robert Alexander

Steven George Alexander

Keith James Bell

Sam Costa

Darryn Robert Davies

Henry George Washington Davies

Maxwell Charles Gregg

Kenneth John Hearne

Cecil James Hyde

Paul Anthony Hyde

William Henry Lever

Peter James Middleton

William John Summers

Balranald Shire Council

Central Darling Shire Council

Hay Shire Council

NSW Minister for Land and Water Conservation

Wakool Shire Council

Balranald Local Aboriginal Land Council

NSW Native Title Services Limited

A B Rowe & Son (NSW) Pty Ltd

Helen Marion Armstrong

John Stanley Armstrong and Vera June Armstrong

Gwenda Elizabeth Florence Barrett

Bidura Pastoral Co Pty Ltd

Anthony Richard Booth & Tina Rose Booth

Joseph Allan Bunyan

Patrick Keith Bunyan; Sharon Ann Bunyan; Michael Andrew Bunyan; Janet Bunyan; Betty   

May Bunyan; Peter Ian Bunyan; Jennifer Marie Bunyan; Peter Bunyan & Co

Gary David Butler & Mary Butler

Annie Isabel Caswell

Clive Cosgrieve Caswell

David Clark Chalmers & Patricia Lorraine Chalmers, Tillara Pastoral Co

James Robert Glover Crossley

Curran Farms Pty Ltd

Peter Bernard Curran & Susan Margaret Curran

Brian Ernest Dixon

Edward Dowling

EJ & GM Healy and Sons

Euston Pastoral P/L

Frances Fitzgerald; Michael James Fitzgerald; Peter Dennis Fitzgerald

Garnett Booth Pty Ltd

B R Gorman

Michael Anthony Gorman & Kathleen Margaret Gorman

James McLaurin McCallum Graham

Alan George Griffiths

Ross Lindsay Grimm & Joy Alison Grimm

Stephen Clark Grimm; Francis Suzanne Grimm trading as SC & FS Grimm

Jock Harris & Kerry Harris

John William Headon & Colleen Barbara Headon

Michael John Healy

Patrick Joseph Healy

Raymond Gerard Healy

IH & AV Booth & Sons

Salvatore Lanteri

Beverly Margaret McGufficke & Wallace Henry McGufficke T/A Bunumburt Pastoral Co

Meilman East Pty Ltd

Frederick John Nelson

Obetz Holdings Pty Ltd & Sinclair and Antico Pty Ltd

Robert John Parker & Frances May Parker

John Ernest Pippin

Graeme Rees

Margaret Robinson

Peter Colin Rogers

Brett Damien & Donna Lee Schiller

Goeffrey Donald Scott

Michael Patrick Scott

Peter William Sutton

Desmond Thomas Wakefield & Diane Patricia Wakefield

John Michael Watkin; Tattersalls Dev Pty Ltd

(Clare) Watkin Pty Ltd, William John Waugh; John Gordon Waugh

Henry Ian James Weaver

Richard James Williams; Mulurulu Proprietors

Robin John Williams & Patricia Mary Williams

Woolmark Pty Ltd

Macapika Pty Ltd

Murray Basin Titanium Pty Ltd

Kenneth Nelson

Riverina Gypsum Balranald No 2 Pty Ltd

Board of Directors’ Balranald & District Ex-Servicemen’s Memorial Club Ltd

John William Coates & Leonie Mary Coates

Olive Coates; David Coates; Mark Coates, Andrew Coates

Guiseppe Cucia and Lina Cucia

Lorna R Finch; Leo R Finch; Neil G Finch

Hay Rural Lands Protection Board

Hillston Rural Lands Protection Board

Andrew Vernon, John Vernon, Kate Vernon, Clinton Vernon & Hollie Vernon or Monivea Grazing Partnership Venture

Donald Jones & Sandra Jones

Wayne Kitcher

Krieg Family Trust

Riverina Rural Lands Protection Board

The Returned & Services League of Australia, (New South Wales Branch)

Walter Keith Treloar

Trustees – Balranald War Memorial Reserve

Birdwood Proprietors

Country Energy (formerly Great Southern Energy)

Transgrid

Rodney James Irvine

Walter Allan Maher & Constance Maher

Telstra Corporation Limited

Alexander Fisher & The Estate of Nora Fisher;  Alexander John Fisher as executor

Balranald Rural Lands Protection Board

Balranald Vineyards

Benanee Pumping Co

Errol Winston Bradbury & Valerie Lavina Bradbury

Caira Stock Water Supply

Kevin Roy Dalton & Joan Elizabeth Dalton

Neville Roy Dalton & Joanne Maree Dalton

Peter R Dowling

Ettrick Pastoral Co

Euston Co-op Rural Society Ltd

Alexander John Fisher & Glenda Fisher

Paul Jeffrey Gillbee

Michael John Grace & Brenda Margaret Grace

Robert Grant & Jennifer Grant

Lance Edward Howley

Charles Joseph Matarazzo

Merbein Investments Pty Ltd

Nap Nap Station Pty Ltd

Neil Bruce Gadsden (on behalf of Benanee Pump Co)

Noonamah Water Authority, Anthony Richard Booth, Brett Schiller, Dough Comb, John Headon, Chris McClelland

Old Goodnight Pty Ltd

Frances John Old

Oxley Stn Past Co Pty Ltd

Ruel Co-operative Society Ltd

Bruce Raymond Spinks

Spittle Syndicate

The Estate of Nancy Margaret Graeme Black

Antonio & Paula Trinchi

Gordon John Turner  & Bronwyn Louise Turner

Werimble Stock Watering Association

Yanga Pty Ltd

Sam Zaffina

Acacia Downs Pty Ltd

Colin Aubrey Armstrong & Helen Marion Armstrong

Aymei Pty Ltd

Silvester John Brown & Henry John Brown

Robert Donnington Bruton & Lorraine Rose Bruton

John Bunyan & Janette Ann Bunyan

David Angus Chaston

Kathleen Winfred Coates

John David Ellis & Joan Maree Ellis

Estate of MC Connellan

Leon Ronald Follett; Luke Adrian Follett; Bennington Pastoral Co Pty Ltd

Ronald Norman Harris

Suzanne Patricia Harris

HT & CE Hillerman, HT & CE Hillerman Pty Ltd

Indigenous Land Corporation

Maxwell Ernest King & Pamela Elizabeth King

Robert Owen Leonard & Nita Christina Leonard

Henry Leslie

Henry Bruce McLean

Graham Hugh Morphett & Helen Maria Morphett

Peter James Morton; Suzanne Esther Morton; Amanda Morton, Nathan Morton, Brett Morton

Narwie Pty Ltd

Stanley Francis Nelson & Barbara Florence Nelson

Russell Nield; Suzanne Nield; Marie Nield

Anthony Francis O’Halloran

Kevin John O’Halloran

Stephen Philip O’Halloran & Suzanne O’Halloran

Timothy Raymond O’Halloran

William Frank Salau & Estelle Maude Salau

Raymond George Scott & Marie Elizabeth Scott

Rex Henry Scott; Evelyn Lorraine Scott

Bernard Earle Standen & Dariel Amelia Standen

Tupra Estates Pty Ltd

Gregory James Turner

Keith Lachlan Turner & Margaret Ann Turner

Wheepool Pty Ltd

William Patrick Wilkes; Genevieve Katherine Wilkes; ‘Moornanyah’ Pastoral Co Pty Ltd

John Patrick Williams; Dianne Williams; Craig John Williams

Wokabity Pty Ltd

Woolamie Pastoral Co

Woorandara Pty Ltd

Barwonnie Pastoral Co, Terry Huntly, Olive Huntly

John Butler

M J Richardson & Partnership

Robert William McKeon & Gay Lorain McKeon

Douglas Morphett & Annelle Lewis Morphett

Graeme Victor Dalton & Wendy Elizabeth Dalton

Peter John Lawler & Janis Elaine Lawler

Mark Vincent Schiller

Twynam Pastoral Co Pty Ltd

PW & LI Old

Kevin Emmins