Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 2)
[2019] FCA 2211
•16 December 2019
FEDERAL COURT OF AUSTRALIA
Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 2) [2019] FCA 2211
File number: QUD 25 of 2019 Judge: REEVES J Date of judgment: 16 December 2019 Catchwords: NATIVE TITLE – application for joinder of respondent party – whether it is in the interests of justice that the joinder applicant be joined as a respondent – application dismissed Legislation: Native Title Act 1993 (Cth) Cases cited: Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469
Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300
Date of hearing: 16 December 2019 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 7 Interlocutory Application Counsel for the Clermont-Belyando Area Native Title Claim Group: Ms E Longbottom QC and Mr J Creamer Solicitor for the Clermont-Belyando Area Native Title Claim Group: Queensland South Native Title Services Counsel for the State of Queensland: Mr S Lloyd SC and Ms J Brien Solicitor for the State of Queensland: Crown Law Counsel for the Interlocutory Applicant: The Interlocutory Applicant appeared in person ORDERS
QUD 25 of 2019 BETWEEN: PATRICK MALONE, IRENE SIMPSON, LYNDELL TURBANE, PRISCILLA GYEMORE, GREGORY DUNROBIN, ELIZAABETH MCAVOY, NORMAN JOHNSON JNR AND IDA BLIGH ON BEHALF OF THE CLERMONT-BELYANDO AREA NATIVE TITLE CLAIM GROUP
Applicant
AND: STATE OF QUEENSLAND
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
BARCALDINE REGIONAL COUNCIL (and others named in the Schedule)
Third Respondent
JUDGE:
REEVES J
DATE OF ORDER:
16 DECEMBER 2019
THE COURT ORDERS THAT:
1.The application filed on 12 December 2019 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
REEVES J:
This is an application for joinder as a respondent in this proceeding made by a person describing himself as Crown. The application also seeks a number of other orders, but they are consequential upon the joinder application being allowed. It should be noted at the outset that Crown has informed me that he wishes to advance a similar position to that of Ms King, whose application for joinder in this proceeding was dismissed on the first day of the trial which commenced on 2 December 2019 in Clermont.
Section 84(5) of the Native Title Act 1993 (Cth) permits an application of this kind. It provides:
The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.
I recently outlined the principles pertinent to a joinder application of this kind in Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]–[12].
Crown submits that his interest for the purposes of s 84(5) is defined at [4]–[6] of the affidavit he made on 9 December 2019. Having read those paragraphs, I agree with the substantive applicant’s submission that they do not establish that Crown has a prima facie interest in the area the subject of the present native title determination application. Instead, those paragraphs contain a series of assertions without disclosing any factual foundation.
Even if Crown had established a prima facie interest in the claim area, for the following reasons, I would not have exercised my discretion to allow his joinder as a respondent party at this stage of this proceeding. First, Crown’s application is extremely late. This proceeding is 15 years old. It was set down for trial in May 2019. That trial commenced on 2 December 2019 in Clermont and has been continuing since then. It is now in its 11th day. Crown’s application was filed on 12 December 2019. In oral submissions before me he said that his delay was caused by “protocols” which only allowed him to act in “the last couple of years”. In the circumstances of this matter, I do not consider that that is a satisfactory explanation for Crown’s delay.
Secondly, if this application were to be granted, Crown has also informed me that he wishes to have this trial brought to an end and to apply for an order to strike out the native title determination application to which it relates. As I mentioned before, the trial of this matter is now in its 11th day and I do not consider it would be an efficient use of the resources of the parties, which include a significant contribution from the public purse, to allow Crown to pursue that course at this stage of this proceeding. Thirdly, as with Ms King’s dismissed application which I mentioned at the outset, this application essentially seeks to pursue a positive determination of native title. So much is apparent from [16] of Crown’s affidavit. It is well-established that that is not a valid basis upon which a person may be joined as a respondent party in proceedings of this kind (see Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469 at [28]).
For these reasons, Crown’s application filed 12 December 2019 is dismissed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 23 January 2020
SCHEDULE OF PARTIES
QUD 25 of 2019 Respondents
Fourth Respondent:
CENTRAL HIGHLANDS REGIONAL COUNCIL
Fifth Respondent:
ISAAC REGIONAL COUNCIL
Sixth Respondent:
ERGON ENERGY CORPORATION LIMITED
Seventh Respondent:
TELSTRA
Eighth Respondent:
AUSTRALIA PACIFIC LNG PTY LIMITED
Ninth Respondent:
BLAIR ATHOL COAL PTY LIMITED
Tenth Respondent:
CLYDE IAN DOXFORD
Eleventh Respondent:
HANCOCK COAL PTY LTD
Twelfth Respondent:
HANCOCK GALILEE PTY LTD
Thirteenth Respondent:
HANCOCK KEVINS CORNER PTY LTD
Fourteenth Respondent:
QUEENSLAND COAL PTY LIMITED
Fifteenth Respondent:
PETER VINCENT SHEVILL
Sixteenth Respondent:
VALE COAL EXPLORATION PTY LTD
Seventeenth Respondent:
BELLEVUE PASTORAL PTY LTD
Eighteenth Respondent:
EVAN BENNEY
Nineteenth Respondent:
CHUDLEIGH PARK CATTLE CO PTY LTD
Twentieth Respondent:
BRUCE RAYMOND COBB
Twenty-First Respondent:
SAMANTHA ELIZABETH COBB
Twenty-Second Respondent:
CREEK FARM PTY LTD
Twenty-Third Respondent:
ALLISON GLENDA FINGER
Twenty-Fourth Respondent:
STEVEN WILLIAM FINGER
Twenty-Fifth Respondent:
TREVOR DAVID GOODWIN
Twenty-Sixth Respondent:
JOHNSTON MANAGEMENT (QLD) PTY LTD T/AS BECO PASTORAL TRUST
Twenty-Seventh Respondent:
LOGAN CREEK PTY LTD
Twenty-Eighth Respondent:
MEXICO GAZING CO PTY LTD
Twenty-Ninth Respondent:
RAYE MARILYN O’SULLIVAN
Thirtieth Respondent:
ROBERT ALAN O’SULLIVAN
Thirty-First Respondent:
PRETTY PLAINS PTY LTD
Thirty-Second Respondent:
JOANNE MARY SALMOND
Thirty-Third Respondent:
JOSEPHINE BARBARA SALMOND
Thirty-Fourth Respondent:
GEOFFREY THOMAS SCHARF
Thirty-Fifth Respondent:
PATRICK JOHN SCHARF
Thirty-Sixth Respondent:
TERESA MONICA SCHARF
Thirty-Seventh Respondent:
DAVID ALBERT SCOTT
Thirty-Eighth Respondent:
SEDGEFORD PASTORAL COMPANY PTY LTD
Thirty-Ninth Respondent:
AINSLIE BRUCE MCKENZIE TEMPLETON
Fortieth Respondent:
DELIA KEMPPI
Forty-First Respondent:
LESTER BARNARD
Forty-Second Respondent:
LINDA BOBONGIE
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