Huddleston v Northern Territory of Australia

[2019] FCA 6

FEDERAL COURT OF AUSTRALIA

Huddleston v Northern Territory of Australia [2019] FCA 6

File number:	NTD 6023 of 2001
Judge:	GRIFFITHS J
Date of judgment:	11 January 2019
Catchwords:	NATIVE TITLE – application to replace a named deceased applicant with another person under s 66B of the Native Title Act 1993 (Cth) – application granted
Legislation:	Native Title Act 1993 (Cth)
Date of hearing:	Determined on the papers
Registry:	Northern Territory
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	6
Solicitor for the Applicant:	Northern Land Council
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Solicitor for the Fourth Respondent:	King & Wood Mallesons
Solicitor for the Fifth and Sixth Respondents:	Ward Keller Lawyers

ORDERS

NTD 6023 of 2001

BETWEEN:

ARTHUR QUE NOY, DAPHNE HUDDLESTON, GABRIEL HAZELBANE AND MARGARET FOSTER

Applicant

AND:

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CAMELOT NORTHERN TERRITORY LIMITED

Second Respondent

NORTHERN GOLD NL (and others named in the Schedule)

Third Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	11 JANUARY 2019

THE COURT ORDERS THAT:

1.The name of the applicant in proceedings NTD 6023 of 2001 be amended by replacing the name Arthur Que Noy with the name Michael Foster.

2.The heading of the application be amended by removing the words “Arthur Que Noy & Ors” from the title of the action and by inserting the words “Daphne Huddleston & Ors” in their place.

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

REASONS FOR JUDGMENT

GRIFFITHS J

1. By an interlocutory application filed on 9 January 2019, the applicant seeks orders to replace a named deceased applicant with another person under s 66B of the Native Title Act 1993 (Cth) (NT Act). 

2. The persons who are currently named as the applicant are Arthur Que Noy (now deceased), Margaret Foster, Gabriel Hazelbane and Daphne Huddleston.  It is proposed that Michael Foster replace Arthur Que Noy, and that the other named persons remain as the applicant.

3. The applicant relies on an affidavit of Michael Foster dated 6 December 2018 and an affidavit of Tess Cole-Adams dated 8 January 2018.  Mr Foster is a member of the Kamu clan group of which Mr Noy was also a member.  I accept Mr Foster’s evidence that the members of the Kamu clan group met in Darwin on 20 November 2018 and that the meeting authorised Mr Foster to apply to the Court to be named as an applicant in the proceeding and replace the deceased.  I also accept Mr Foster’s evidence that the authorisation was given in accordance with traditional decision-making processes and that Mr Foster consents to becoming an applicant. 

4. In her affidavit, Ms Cole-Adams annexed correspondence between the applicant and certain respondents regarding the proposal in the interlocutory application.  The first and fourth respondents gave their consent.  The second and third respondents are deregistered.  The legal representative for the fifth and sixth respondents (Branir Pty Ltd and Tovehead Pty Ltd respectively) responded by saying that the sixth respondent no longer had any interest in the proceeding and the fifth respondent neither consented to nor opposed the interlocutory application on the basis that it did not wish to be perceived as taking sides in what it understood to be a dispute between the Kamu and Malak Malak peoples.

5. Section 66B of the NT Act provides:

   66B  Replacing the applicant

   Application to replace applicant in claimant application

   (1)One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

   (a)one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

   …

   (ii)       the person has died or become incapacitated;

   …

   (b)the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

   Note:Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

   Court order

   (2)      The Court may make the order if it is satisfied that the grounds are established.

   Federal Court Chief Executive Officer to notify Native Title Registrar

   (3)If the Court makes the order, the Federal Court Chief Executive Officer must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

   Register to be updated

   (4)If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

6. I am satisfied that it is appropriate to make the orders sought in the interlocutory application. It will be necessary for appropriate steps to be taken in accordance with s 66B(3) and (4).

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

Associate:

Dated:       11 January 2019

SCHEDULE OF PARTIES

NTD 6023 of 2001
Respondents
Fourth Respondent:	TELSTRA CORPORATION LIMITED
Fifth Respondent:	BRANIR PTY LTD
Sixth Respondent:	TOVEHEAD PTY LTD