Kanak v Minister for Land and Water Conservation

[2000] FCA 258

FEDERAL COURT OF AUSTRALIA

Kanak v Minister for Land & Water Conservation [2000] FCA 258

DOMINIC WY KANAK v MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW
N 6016 of 1999

MADGWICK J
2 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6016 of 1999

BETWEEN:	DOMINIC WY KANAK APPLICANT
AND:	MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	2 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to adjourn the hearing of the respondent’s notice of motion, on the grounds that the applicant may attempt to file a relator action, is refused.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6016 of 1999

BETWEEN:	DOMINIC WY KANAK APPLICANT
AND:	MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT

JUDGE:	MADGWICK J
DATE:	2 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. On 9 November 1999 the respondent in this matter, the Minister for Land and Water Conservation of New South Wales, filed a notice of motion to strike out or dismiss the native title claim proceedings brought by the applicant, Mr Kanak.  Mr Kanak has made an application to adjourn the hearing of the motion in order that he might seek the consent of the Attorney-General to bring a relator action.  I refuse the application for such an adjournament. 

2. As I understand the practice, the Attorney-General, among other things, requires that there be an opinion of counsel to the effect that the action sought to be brought in his name has some reasonable prospect of success in the sense that the case is fairly arguable.  There is apparently no such opinion in existence.  Secondly, the Attorney-General it seems has an unfettered discretion as to whether he will assist a member of the public who desires to involve the Attorney-General's name to create standing to bring an action.  This is an action against a Minister of the Crown.  It is not clear to me that, in this case, as a matter of practice, the Attorney-General would likely feel an obligation to assist Mr Kanak in the way desired.  Finally, while Mr Kanak is unrepresented, he is not on that account entitled to a consideration that a represented litigant would not have.  A represented litigant would be met with the observation that he had had plenty of time to consider this matter and that the proceedings should not be delayed in order to enable further and late consideration of the matter.

3. So, for these reasons, I decline that application for an adjournment.

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

Associate:

Dated:             2 March 2000

Solicitor for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	J Waters
Solicitor for the Respondent:	Crown Solicitor of New South Wales
Date of Hearing:	2 March 2000
Date of Judgment:	2 March 2000