Hoolihan on behalf of the Gugu Badhun People #3 v State of Queensland

Ernest Michael Hoolihan, Harry Gertz, Narda Kennedy, Hazel Illin and Elsie Thompson, as the Native Title Applicant, applied for a determination of native title in relation to a specific area, excluding land and waters subject to previous determinations. Lawrence Flinders Kerr joined the proceedings as a respondent. The Applicant subsequently filed an interlocutory application seeking Mr Kerr’s removal as a respondent. The court was required to determine whether Mr Kerr had provided sufficient evidence of a genuine interest in the area, and whether he had a tenable defensive claim to justify his status as a respondent. This involved assessing Mr Kerr’s submissions and evidence, including his belief that the Gudjala people hold native title in the claim area, and his concerns about the accuracy of an anthropologist's report and the representation of the Gudjala people's rights and interests.

The court considered the evidence provided by both parties, including affidavits from various witnesses. The court found that Mr Kerr had not sufficiently demonstrated an interest in the Gugu Badhun #3 claim area which may be affected by a determination in these proceedings. Consequently, the court was not satisfied that Mr Kerr had a tenable defensive claim to justify his continuing status as a respondent. The court exercised its discretion under section 84 of the Native Title Act to remove Mr Kerr as a party to the proceedings.

In light of the above, the court ordered that Mr Lawrence Flinders Kerr cease to be a respondent party to the Gugu Badhun Native Title Claim (QUD777/2019). This decision was based on the lack of sufficient evidence of Mr Kerr's interest in the claim area and his inability to demonstrate a tenable defensive claim. The court's wide discretionary power to remove a party from the proceedings was considered, along with the need to prevent delay and ensure a determination could be made in favour of the Applicant.