Jerrungarugh People – Gordon Mitchell Wellington

[2000] FCA 904

FEDERAL COURT OF AUSTRALIA

Jerrungarugh People – Gordon Mitchell Wellington [2000] FCA 904

JERRUNGARUGH PEOPLE – GORDON MITCHELL WELLINGTON

NG 6025 OF 1998

GYLES J
SYDNEY
23 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6025 OF 1998

BETWEEN:	JERRUNGARUGH PEOPLE - GORDON MITCHELL WELLINGTON APPLICANT
JUDGE:	GYLES J
DATE OF ORDER:	23 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The proceedings are dismissed in accordance with O 20 r 2 of the Federal Court Rules.

2.   No order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6025 OF 1998

BETWEEN:	JERRUNGARUGH PEOPLE - GORDON MITCHELL WELLINGTON APPLICANT
JUDGE:	GYLES J
DATE:	23 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The transcript will record that with the consent of all present a motion was filed returnable instanter today to dismiss the proceedings under O 20 rule 2 of the Federal Court Rules on the basis that in the circumstances which exist there is no real possibility of the proceedings succeeding.  I am being invited to follow in this respect a decision of Wilcox J in Moran v Minister for Land and Water Conservation (1999) FCA 1637. It seems to me that the case is appropriate because, there being no dispute about the death of the present applicant, dismissal is required. Neither s 64(5) nor s 66(b) of the Native Title Act 1993 (Cth) (“the Act”) deals with the transmission of an application in those circumstances, and the ordinary rules of court do not apply.

2. According to the evidence and what has been said by the parties, there has been ample opportunity for the claimant group to bring the necessary proceedings to have an applicant substituted but, for reasons which I need not go into, they have been unable to put themselves in a position to do this.  I am told that there are also formal defects in the application which might have caused it to be struck out in any event.  It does not seem to me that I need to be troubled by that in view of the difficulty about parties. 

3. If I had been satisfied that more time was needed to be given in order that an application could be made to regularise the position, I would have considered that.  None of the represented parties have put that.  Mr Wellington's son, who is present, indicates that a short period would not, he thinks, be sufficient to regularise the position.  I am informed that the dismissal (which is not on the merits and therefore will not prejudice any future claim or application) will have no adverse effects for any party in the present circumstances.  In order to make that clear, the Minister for Land and Water Conservation, who is represented here, has undertaken that if a non-claimant application is still on foot then that will be dismissed.  It seems to be accepted that that will remove any possibility of any adverse consequences for anybody.  I have also been influenced by the fact that the experienced representatives of the parties here who are present suggest that it may in fact assist in focussing attention upon the best method of proceeding with the claims if this motion is acceded to.  So, under all of those circumstances, I dismiss the proceedings.  I make no order as to costs, and note that the dismissal is no barrier to a further application.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             3 July 2000

Counsel for the Applicants:	A McLean
Counsel for the First Respondent:	Crown Solicitor
Counsel for the Second Respondent:	SB Philips
Counsel for the Third Respondent:	S Pritchard
Date of Hearing:	23 June 2000
Date of Judgment:	23 June 2000