Jones and Ors of the Dalungbarabatchala and Ngulungbara People v State of Queensland and Commonwealth of Australia

[1998] QSC 11

IN THE SUPREME COURT

OF QUEENSLAND

Writ No. 183 of 1994
Brisbane

[Jones & Ors of the Dalungbarabatchala & Ngulungbara People v State of Queensland & Commonwealth of Australia]

Before Mr Justice Ambrose

BETWEEN:

JOHN LEE JONES ELDER AND OTHERS OF THE DALUNGBARABATCHALA AND NGULUNGBARA PEOPLE OF KGURI (FRASER ISLAND) AND THE GREAT SANDY REGION AS TRUSTEES BY NATIVE CUSTOMARY LAW

Plaintiffs

AND:

STATE OF QUEENSLAND

First Defendants

AND:

COMMONWEALTH OF AUSTRALIA

Second Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 18 February 1998

This was an application by the second defendant to set aside service of the plaintiffs’ writ of summons. Both the plaintiffs and the first defendant were respondents to the application. The first defendant made no such application but supported the second defendant’s contention that this Court has no jurisdiction to entertain part of the plaintiff’s claim.

The second defendant’s application was based on the argument that this Court had no jurisdiction to entertain that part of the claim for relief sought which related to submerged lands below low water mark.

The real argument, which was quite lengthy was between the second defendant and the first defendant as to whether the jurisdiction of this Court extended to submerged lands within three nautical miles of low water mark.

The first defendant contended that this Court did have jurisdiction and the second defendant contended that it did not. The first defendant’s contention was successful.

The first defendant also succeeded on its argument that this Court had no jurisdiction beyond the three nautical mile limit which was also the contention of the second defendant.

The plaintiffs were given leave to amend their writ of summons and statement of claim in effect restricting the ambit of their claim to land above low water mark and submerged lands within three nautical miles of low water mark.

The second defendant therefore succeeded upon its application to set aside service of the writ of summons and statement of claim which the plaintiffs had served on it. However, it failed in its opposition to the granting of leave to the plaintiffs to amend their proceedings to restrict their claim with respect to submerged lands to those within three nautical miles of low water mark.

The second defendant seeks the costs of its application against the plaintiff.

The first defendant does not seek any order for costs against the plaintiff. The first defendant does however seek costs of the application which it argued successfully against the second defendant to the extent that this Court’s jurisdiction to entertain the plaintiffs’ claim with respect to submerged lands within three nautical miles of low water mark was upheld.

The second defendant opposes such an order in favour of the first defendant on the basis that the first defendant was not a party to the second defendant’s application against the plaintiffs and that there is therefore no basis upon which it should be ordered to pay the costs of the first defendant albeit that the principal contest upon the application was between the first defendant and the second defendant with respect to the jurisdiction of this court and the first defendant succeeded on this issue.

In my judgment it became apparent from the outset of the hearing of the application that the real issue in dispute was between the first defendant and the second defendant. Presumably this was the reason the first defendant was made a respondent to the second defendant’s application.  The plaintiffs who conducted their case though John Lee Jones Elder personally really spent very little time and addressed very little argument on this matter which might be regarded as of Constitutional importance to each of the defendants involving the proper application of the Constitutional Settlement legislation which was analyzed at length by the first defendant and the second defendant and to which Mr Jones made only passing reference.

I order that one third of the costs of the second defendant of the application to be taxed  be its costs in the cause.

I order that the second defendant pay two thirds of the costs of the first defendant of the application to be taxed.