Holt v The Hon Daryl Manzie MLA Northern Territory

[2001] FCA 401

FEDERAL COURT OF AUSTRALIA

Holt v The Hon Daryl Manzie MLA Northern Territory
Minister for Resource Development [2001] FCA 401

JIMMY HOLT v THE HON DARYL MANZIE MLA NORTHERN TERRITORY MINSITER FOR RESOURCE DEVELOPMENT and Anor.

N1271 OF 2000

OLNEY J
DARWIN
6 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	N1271 OF 2001

BETWEEN:

JIMMY HOLT
APPLICANT

AND:

THE HON DARYL MANZIE MLA NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT
FIRST RESPONDENT

THE NORTHERN TERRITORY OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

OLNEY J

DATE OF ORDER:

6 APRIL 2001

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.There be no order in respect of paragraphs 1 and 2 of the respondents’ notice of motion filed on 28 March 2001.

2.The costs of the motion to date be costs in the cause.

3.The motion be otherwise adjourned sine die.

4.The time within which the respondents may give notice of any objections to the applicant’s evidence be extended to 19 April 2001.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	N1271 OF 2001

BETWEEN:

JIMMY HOLT
APPLICANT

AND:

THE HON DARYL MANZIE MLA NORTHERN TERRITORY MINISTER FOR RESOURCE DEVELOPMENT
FIRST RESPONDENT

THE NORTHERN TERRITORY OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	OLNEY J
DATE:	6 APRIL 2001
PLACE:	DARWIN

REASONS FOR JUDGMENT

1. On any reading of the application in its original form, and of the material relied upon in support of the interlocutory relief sought by the applicant last December, there can be no doubt that it was reasonable for the respondents, when consenting to the orders for discovery, to assume that the two land councils were in the nature of parties to the proceeding or at the least, were so inextricably involved as to give rise to the expectation that they would disclose all documents in their possession or power relevant to the many issues raised by the application.

2. In the light of the refusal of the Northern Land Council (and presumably the Central Land Council) to give discovery as sought by the respondent, it was entirely appropriate that the respondents should seek such an order pursuant to O 15A r 8 of the Federal Court Rules.

3. In the original application, the capacity of the land councils as representative bodies under the Native Title Act 1993 to comply with their obligations under that Act was raised in subparagraphs (2)(a) and (c) and (4) of paragraph 4 and in subparagraph 6(a).  That being so, it would necessarily follow that any discovery of documents ordered to be given by the land councils would have to embrace that issue in all its facets; and having regard to the affidavit evidence that was used in the application for interlocutory relief, the financial capacity of the land councils was at the forefront of the case.

4. But subsequent to the filing of the respondents’ notice of motion on 28 March 2001, the applicant sought, and has since by consent been granted, leave to amend the application.

5. The application as now amended does not contain any of the subparagraphs to which reference has just been made.  It contains no reference to the capacity of the representative bodies to fulfil their obligations under the Native Title Act; nor is any complaint made as to the number or frequency of the s 29 notices given by the first respondent.  Indeed, counsel for the applicant has disavowed any intention of relying upon evidence which suggests that the conduct complained of imposes on the land councils financial and resource burdens which would mean that they will be unable to fulfil their statutory functions.

6. On my understanding of the application in its present form the only issues are;

   1.   whether the form of the notices complies with the requirements of the Native Title Act;

   2.   whether the method of notification was in accordance with the Native Title (Notices) Determination 1998; and

   3.   whether the inclusion of the expedited procedure statement in some of the notices was appropriate.

7. Having regard to the now very limited grounds upon which relief is sought, and being mindful of the proximity of the trial date which was set by consent some four months ago, I do not propose to make any order on paragraphs 1 and 2 of the respondents’ motion.  The motion will simply stand adjourned in case, in the events which happen, it becomes necessary to revisit the issue.  The costs of the motion to date will be costs in the cause.

8. In the orders and directions made on 15 December 2000, 30 March 2001 was fixed as the date by which the respondents were to give notice of any objections to the applicant’s witness statements.  In view of the amendment of the application and comments made by the applicant’s counsel as to certain evidence that would not be relied upon, the respondents should have until 19 April 2001 within which to give notice of any further objections they may wish to raise to the applicants evidence.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Olney.

Associate:

Dated:            6 April 1001

Counsel for the Applicant:	Mr N Williams
Solicitor for the Applicant:	Mr G Carter
Counsel for the Respondent:	Mr V Hughston
Solicitor for the Respondent:	Solicitor for the Northern Territory
Date of Hearing:	5 April 2001 (by video link with Sydney)
Date of Judgment:	6 April 2001