Hunter on behalf of the Wierdi People #2 of the Wribpid Nation v State of Queensland

[2016] FCA 1604

FEDERAL COURT OF AUSTRALIA

Hunter on behalf of the Wierdi People #2 of the Wribpid Nation v State of Queensland [2016] FCA 1604

File number:	QUD 471 of 2016
Judge:	DOWSETT J
Date of judgment:	28 June 2016
Catchwords:	NATIVE TITLE -  application for determination of native title – where the proceedings are prosecuted without authority – application dismissed
Legislation:	Native Title Act 1993 (Cth)
Date of hearing:	28 June 2016
Registry:	Queensland
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Ms E Longbottom
Solicitor for the Respondent:	Crown Law
Counsel for Mr L Budby and Mr C Brown Jnr:	Mr K Barlow QC
Solicitor for Mr L Budby and Mr C Brown Jnr:	Dillon Bowers Lawyers
Counsel for the North Queensland Land Council Native Title Representative Body Aboriginal Corporation:	Ms S Phillips
Solicitor for the North Queensland Land Council Native Title Representative Body Aboriginal Corporation:	North Queensland Land Council

ORDERS

QUD 471 of 2016

BETWEEN:

VASSA HUNTER AND SHIRLEY DUNROBIN ON BEHALF OF THE WIERDI PEOPLE #2 OF THE WRIBPID NATION

Applicant

AND:

STATE OF QUEENSLAND

Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	28 JUNE 2016

THE COURT ORDERS THAT:

1.the Applicant have leave to file and read the affidavit of Mrs Vassa Hunter sworn 28 June 2016;

2.Les Budby be joined as a respondent;

3.Cecil Brown Jnr be joined as a respondent;

4.the North Queensland Land Council Native Title Representative Body Aboriginal Corporation be joined as a respondent;

5.the application be struck out pursuant to s 84C of the Native Title Act 1993 (Cth); and

6.the Applicant pay the respondents' costs.

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

REASONS FOR JUDGMENT

DOWSETT J:

1. On 22 June 2016 Ms Vassa Iris Hunter and Ms Shirley Dunrobin filed an application for a Native Title determination on behalf of the Wierdi People.  It is application no 471 of 2016.  The application is said to be on behalf of a claim group described at para 3 as comprising:

   ·Charlie Tears parent of Donald Tears;

   ·Flora Reed of Nebo and Mackay (also known as Bijelli);

   ·Hannie mother of Lizzie Barber;

   ·Jerry of Mackay (the father of Ida and Booyah McDonald);

   ·Janie of Mackay (the mother of Percy McDonald), Lizzie Smith (also known as Lizzie Dunrobin), Ida and Booyah McDonald;

   ·Mary of Claremont (whose known children are Abraham Nitty Johnson, Maggie and Billy Stapleton/Appleton/Hamilton); and

   ·Tommy Thomas.

2. The area over which the claim is made coincides with land which is presently the subject of two other applications, no 380 of 2008 (the “Barada Barna application”), and no 492 of 2013 (the “Widi #2 application”).  The two applicants in the Barada Barna application, Leslie Budby and Cecil Brown Jnr, have been joined in their own rights as respondents in these proceedings.  The North Queensland Land Council has similarly been joined.  Those respondents seek to have the proceedings terminated on the basis that they are unauthorized by the claim group, and/or are an abuse of process.  The State of Queensland is also a respondent.  It supports the other respondents’ application.

3. The Barada Barna and Widi #2 applications were, in March of this year, set down for hearing tomorrow as consent determinations.  The Applicant in application no 471 of 2016 claims to have been authorized by the claim group at a meeting held on 27 February 2015, particularly by resolutions 6 and 8 as follows:

   Resolution 6 – The Wierdi People of Wribpid Nation native title claim group resolve that Juanita Johnson and Florence Bell and is no longer authorised to make the application and deal with matters arising in relation to it, as she is no longer a member of the current claim group and authorises:

   Mrs Vassa Hunter; and

   Shirley Dunrobin

   to make the application and deal with matters arising in relation to it.

   Moved:           Shirley Dunrobin  Seconded:        Bowman Johnson

   For: All  Against: Nil                 Abstained: Nil

   PASSED

   Resolution 8 – The present members of the Wierdi People of the Wripbid Nation resolve that Mrs Vassa Hunter and Ms Shirley Dunrobin are authorised by the members of the claim group to make the an application to the Federal Court of Australia for all orders under section 66B of the Native Title Act necessary to give effect to the resolutions passed and deal with matters arising in relation to it.

   Moved:           Harriet Hulthen  Seconded:        Shirley Dunrobin

   For: All  Against: Nil                 Abstained: Nil

   PASSED

   (Typographical errors in original)

4. The long delay between the alleged resolutions and the filing of the application for a determination is, itself, a relevant matter to which I shall return.  For the moment, however, I shall focus on events prior to, and at the meeting.  The notice of meeting was given by advertisement.  For present purposes I assume that adequate notice (in terms of time and place) were given to those entitled to attend.  The notice appears to have been directed to the members of the claim group in application no 566 of 2014, although misdescribed as “006 of 2014”.  The business to be conducted appears to have been related to that claim, although the possibility of other applications being made was mentioned. 

5. The proposed application related to areas specified at paras 6(d) and 6(e). Those areas are not the subject of this application. In the circumstances, it is impossible to construe the notice as giving notice of intention to seek authorization of the present application. As I understand it, the Applicant claims authorization pursuant to resolutions 6 and 8 which appear in the minutes of meeting. Resolution 6 removes, as members of the applicant group, two persons who were no longer members of the claim group because earlier, in the same meeting, their apical ancestors were removed from the claim group description. Resolution 8 authorized an application under section 66B of the Native Title Act 1993 (Cth) (the “Native Title Act”) to give effect to such changes. Clearly the meeting did not authorize the commencement of the current application. Application no 566 of 2014 was, in fact, discontinued on 31 March 2015.

6. There is no evidence of authorization of the present application. It follows that the application must be struck out pursuant to s 84C. It was not authorized as required by s 61.

7. There is much to be said for the further submission that the proceedings in application no 471 of 2016 are an abuse of process.  The following is a chronology of events which have occurred since the commencement of the Barada Barna application on 12 November 2008:

29 July 2013	Widi #2 application was filed;
22 May 2014	programming orders were made in respect of the Barada Barna and Widi #2 applications and the matters were listed for trial commencing 16 November 2015;
28 October 2014	the Wierdi #1 application was filed;
10 December 2014	the Wierdi #1 application failed registration testing;
31 March 2015	the Wierdi #1 application was discontinued;
31 October 2015	s 87 agreements for the consent determinations in the Barada Barna and Widi #2 applications were authorized;
2 November 2015	joinder application filed by Ms Vassa Hunter in the Barada Barna application;
3 November 2015	joinder application filed by Ms Juanita Johnson in the Barada Barna application;
10 November 2015	joinder application filed by Mr Norman Johnson in the Barada Barna application;
18 November 2015	the joinder applications were dismissed.

1. In my reasons for dismissing that application I said, at [9]:

   In those circumstances, it seems to me that I cannot, having regard to the interests of justice, accede to Mr Johnson’s application, given his prior involvement and the choices that he has made.  As to the other two applicants, they are, in one sense, in a worse position than Mr Johnson, but in another sense, in a better position.  They have until now, made no attempt to be joined in these proceedings.  In that sense one might think that it is even harder for them to satisfy me that they should be allowed to join them at this stage.

   On the other hand, unlike Mr Johnson, they have not previously been parties and allowed themselves to be dismissed.  In that sense, they are perhaps in a somewhat stronger position than is he.  In the end, however, I think it makes no difference.  Once again, it would not be in the interests of justice to join them at this stage.

2. I incorporate into these reasons my reasons given on that day. 

3. As I have said, the delay between February 2015 and June 2016 is unexplained.  That, of itself, is sufficient reason for refusing to permit the current proceedings to continue, given that such continuation would mean that the consent determinations (scheduled for tomorrow) would have to be put off.  If application no 471 of 2016 remained on foot it would not be possible to resolve all native title matters affecting the land claimed by the Barada Barna People.  That this application was made days before the date fixed for the Barada Barna and Widi #2 consent determinations strongly suggests an attempt to dislocate the process by which the parties in those proceedings have been moving towards such determinations.  The failure to take any other step after the orders made in November last year is to similar effect.  It would be an abuse of process to allow this matter to proceed.  Were it not for the fact that I have already decided to strike it out, I would be minded to enter judgment pursuant to r 26.01. 

4. Had it not been for the proceedings leading to my reasons given on 18 November 2015, I may well have not made any orders as to the costs of these proceedings.  Ms Dunrobin was not a party to those proceedings.  However Ms Hunter was a party.  As against her, I take that matter into account in considering the question of costs.

5. In the end, it is the fact that both Ms Hunter and Ms Dunrobin prosecuted these proceedings without authority.  Ms Hunter has, on both occasions, been a party to proceedings which appear to have been designed to disrupt the proceedings in other matters, rather than to prosecute a genuine claim.  In the circumstances, I intend to order that the applicants pay the respondents’ costs of these proceedings. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: 

Dated:        21 July 2017