Harrington-Smith on behalf of the Wongatha People v State of Western Australia

[2002] FCA 871

FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of the Wongatha People v State of
Western Australia [2002] FCA 871

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS
ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF
WESTERN AUSTRALIA & ORS – WAG 6005 OF 1998

DOLLY WALKER AND KADO MUIR ON BEHALF OF THE NGALIA KUTJUNGKATJA PEOPLE v THE STATE OF WESTERN AUSTRALIA
& ORS – W 6011 OF 2000

LINDGREN J
4 JULY 2002

KALGOORLIE

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY		WAG 6005 OF 1998
BETWEEN:	RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	LINDGREN J
DATE OF ORDER:	4 JULY 2002
WHERE MADE:	KALGOORLIE

THE COURT ORDERS THAT:

The application by Dolly Walker under s 85 of the Native Title Act 1993 (Cth) to be represented by Ronald Thomas Parker be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY		W 6011 OF 2000
BETWEEN:	DOLLY WALKER AND KADO MUIR ON BEHALF OF THE NGALIA KUTJUNGKATJA PEOPLE APPLICANTS
AND:	THE STATE OF WESTERN AUSTRALIA & OTHERS RESPONDENTS
JUDGE:	LINDGREN J
DATE OF ORDER:	4 JULY 2002
WHERE MADE:	KALGOORLIE

THE COURT ORDERS THAT:

The application by Dolly Walker under s 85 of the Native Title Act 1993 (Cth) to be represented by Ronald Thomas Parker be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 6005 OF 1998

BETWEEN:

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & OTHERS ON BEHALF OF THE WONGATHA PEOPLE
APPLICANTS

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 6011 OF 2000

BETWEEN:

DOLLY WALKER AND KADO MUIR ON BEHALF OF THE NGALIA KUTJUNGKATJA PEOPLE
APPLICANTS

AND:

THE STATE OF WESTERN AUSTRALIA & OTHERS
RESPONDENTS

JUDGE:	LINDGREN J
DATE:	4 JULY 2002
PLACE:	KALGOORLIE

REASONS FOR JUDGMENT

INTRODUCTION

1. There is before the Court an application by Dolly Walker to be represented by a person who is not a legal practitioner, namely Ronald Thomas Parker. Section 85 of the Native Title Act 1993 (Cth) (“the Act”) provides that:

   “A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person.” (my emphasis)

   Order 78 rule 42A of the Federal Court Rules ("the Rules") provides that:

   “An application by a party under section 85 of the Native Title Act for leave to be represented by a person who is not a barrister or a solicitor must be in accordance with Form 166.” (my emphasis)

2. The application in the present case is made in accordance with Form 166, but, unfortunately, that is about the only thing that is right about the application.

3. The application is made ex parte.  Accordingly, I have not invited submissions.  Dolly Walker, who lives at Leonora, has not appeared.  I have reached a clear view, on the papers, as to what should be the result of Dolly Walker's application.

   BACKGROUND

4. It is worth noting by way of background that there are a number of proceedings which are relevant to the present application under s 85 of the Act. First, there is the principal proceeding, WAG 6005 of 1998, in which Ron Harrington-Smith and others are the named applicants on behalf of the Wongatha people (“the Wongatha proceeding”). I am part-heard in the Wongatha proceeding.

5. Secondly, there is proceeding W 6011 of 2000, in which Dolly Walker and Kado Muir are the named applicants on behalf of the Ngalia Kutjungkatja people (“the Ngalia Kutjungkatja 1 proceeding”).  In so far as it overlaps the area of the Wongatha claim, that proceeding is being heard concurrently with the Wongatha proceeding.  The hearing of the Wongatha claim, and, to the extent of the overlap, the Ngalia Kutjungkatja 1 claim, are well advanced in the hearing before me.

6. Thirdly, there is a proceeding which was commenced very recently.  This is proceeding W 6001 of 2002 which was commenced on 13 June 2002 by Dolly Walker alone as applicant.  Dolly Walker has brought this proceeding on behalf of the native title claim group she has called “Ngalia Kutjungkatja 2”.  I will call this proceeding “the Ngalia Kutjungkatja 2 proceeding”.

7. A fourth proceeding should be mentioned, which, to the extent of its overlap with the Wongatha claim, is also part-heard before me.  This is proceeding W 6069 of 1998, in which there are seven named applicants including Dolly Walker and Kado Muir.  That proceeding is brought on behalf of the Mantjintjarra Ngalia people.  I will call it “the Mantjintjarra Ngalia proceeding”.

8. The recently commenced Ngalia Kutjungkatja 2 proceeding refers to an area which is identical with the area the subject of the Mantjintjarra Ngalia proceeding but which is not identical with, and is contiguous to, the area the subject of the Ngalia Kutjungkatja 1 proceeding.

   REASONING

9. The form of Dolly Walker’s application under s 85 of the Act is intituled WAG 6005 of 1998, which is a reference to the Wongatha proceeding, but it shows the applicant as “Ngalia Kutjungkatja”. Proceeding W 6011 of 2000 is the Ngalia Kutjungkatja 1 proceeding. The applicants in that proceeding, Dolly Walker and Kado Muir, are also respondents in the Wongatha proceeding because of the overlap area. I treat Dolly Walker’s application under s 85 of the Act as made in both proceedings WAG 6005 of 1998 and W 6011 of 2000 (the Wongatha proceeding and the Ngalia Kutjungkatja 1 proceeding respectively).

10. On 14 June 2002, just before the current tranche of hearing dates commenced on 17 June 2002, the Goldfields Land and Sea Council (“GLSC”), which had, until then, represented Dolly Walker and Kado Muir as applicants in the Ngalia Kutjungkatja 1 proceeding, ceased to do so.

11. On 21 June 2001, shortly after the current tranche of hearing dates commenced, Dolly Walker wrote a letter addressed “To Whom it May Concern”.  The letter referred to proceedings W 6143/98, W 6001/00 [sic] and W 6001/02.  The number W 6001/00 [sic] was, I presume, intended to be W 6011/00, the number of the Ngalia Kutjungkatja 1 proceeding.  I proceed accordingly.  At present, I do not know, but it does not matter, to which proceeding, if any, W 6143/98 refers.

12. Dolly Walker’s letter stated as follows:

    “Please supply full copies of all Service Notices and/or any other material dealing with the three Native Title claims listed above, to:”

    and there followed a reference to Ronald T. Parker of Australian Interaction Consultants and his address and other contact details.  The letter said:

    “This authority to remain in place until otherwise notified.”

    It also said:

    “Australian Interaction Consultants are fully authorised to act on our behalf upon receipt of such material referred to above.”

13. Dolly Walker’s signature was the only signature on the letter, although it will be noted that it referred to “our”, not “my”.  There has been filed in Court on behalf of the GLSC a notice of solicitor ceasing to act in respect of the Ngalia Kutjungkatja 1 proceeding.

14. What emerges from the above is that Dolly Walker and Kado Muir, as the named applicants in the Ngalia Kutjungkatja 1 proceeding, are no longer represented by the GLSC and are self-represented.  The same applies to those two individuals as respondents to the Wongatha proceeding.  However, in their roles as two of the seven named applicants in the Mantjintjarra Ngalia proceeding, they are still represented by the GLSC.

15. For several reasons, I reject Dolly Walker’s application under s 85 of the Act.

16. First, it is simply not open to Dolly Walker, as one of two named applicants in the Ngalia Kutjungkatja 1 proceeding, to apply to be represented by Mr Parker – the application would have to be by Dolly Walker and Kado Muir, and it is not by both of them. Section 85 of the Act and O 78 r 42A of the Rules, both set out earlier, refer to an application for leave by "a party".

17. Secondly, even if it were possible for the application, made as it is by Dolly Walker alone, to be entertained, it seems quite futile, since there is no similar application made by Dolly Walker to be represented by Mr Parker in the newly commenced Ngalia Kutjungkatja 2 proceeding, which I propose to order to be heard concurrently with the other proceedings on which I am embarked.  No doubt, that particular difficulty could be overcome if Dolly Walker were to make an application in the Ngalia Kutjungkatja 2 proceeding.

18. Thirdly, and most importantly, there is simply no evidence before me to show why I should grant leave. Ordinarily, one would expect there to be an affidavit showing why the party seeking leave is not represented by a solicitor or barrister and showing that the party seeking leave would be better off represented by the unqualified person than if unrepresented. If as seems to have been the case, Mr Parker has prepared Dolly Walker's present application under s 85, one could not be confident that this is so.

19. It may be that if Dolly Walker wished to make an application to be represented by Mr Parker in the Ngalia Kutjungkatja 2 proceeding, and that application were supported by proper evidence, I could be persuaded to grant leave.  Again, it may be that if she persuaded her son, Kado Muir, to join with her in making a similar application in the Ngalia Kutjungkatja 1 proceeding, and again the application were properly supported by evidence, I could be persuaded to grant leave.  But the affidavit evidence would have to begin by establishing that it is unreasonable to expect the applicant for leave to be represented by a barrister or solicitor.

20. What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party.  Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking.  This is not so and for good reason.  Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities.  The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister.

21. There is no evidence before me suggesting that this is so. 

    CONCLUSION

22. For the above reasons, I dismiss Dolly Walker’s application under s 85 of the Act. (What I have said above is not a decision that Mr Parker is prevented from rendering any assistance whatever to Dolly Walker or that his address cannot be her address for service under O 7 r 6 of the Rules, but it means that he may not "represent" her in the litigation.)

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             11 July 2002

Dolly Walker, the applicant for leave, did not appear.
Date of Hearing:	4 July 2002
Date of Judgment:	4 July 2002