Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales

[2019] FCA 1177

FEDERAL COURT OF AUSTRALIA

Warrabinga-Wiradjuri People #7 v Attorney General of New South Wales [2019] FCA 1177

File number:	NSD 857 of 2017 NSD 543 of 2013 NSD 1786 of 2016
Judge:	GRIFFITHS J
Date of judgment:	26 July 2019
Date of publication of reasons	31 July 2019
Date of hearing:	23 July 2019
Date of last submissions:	26 July 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Native Title
Category:	No Catchwords
Number of paragraphs:	9
Solicitor for the Applicants:	Mr S Blackshield of Blackshield Lawyers
Solicitor for the Second Respondent:	Ms S Davis of Australian Government Solicitor
Counsel for the Tenth Respondent:	The 10th respondent appeared in person
Counsel for the Twelfth Respondent:	The 12th respondent appeared in person by telephone
Counsel for the Thirteenth Respondent:	The 13th respondent appeared in person
Counsel for the Sixteenth Respondent:	The 16th respondent appeared in person by telephone
Counsel for the Seventeenth Respondent:	The 17th respondent appeared in person by telephone
Solicitor for the 32nd Respondent:	Mr D Schultz of NSWLAC
Solicitor for the 33rd Respondent:	Ms M Holt of NTSCORP Limited
Counsel for the 34th Respondent:	The 34th respondent appeared in person by telephone
Counsel for the 35th Respondent:	The 35th respondent appeared in person by telephone
Solicitor for the 69th Respondent:	Ms K Perincek of DLA Piper Australia
Counsel for the 101st Respondent:	The 101st respondent appeared in person

ORDERS

NSD 857 of 2017
NSD 543 of 2013
NSD 1786 of 2016

BETWEEN:

WARRABINGA-WIRADJURI PEOPLE #7

First Applicant

WARRABINGA-WIRADJURI PEOPLE #2

Second Applicant

WARRABINGA-WIRADJURI PEOPLE #6

Third Applicant

AND:

ATTORNEY GENERAL OF NEW SOUTH WALES (and others named in the Schedule)

First Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	26 JULY 2019

THE COURT ORDERS THAT:

1.Lithgow City Council be joined as a party to the proceedings under s 84(5) of the Native Title Act 1993 (Cth).

2.Pursuant to section 86B(5) of the Native Title Act 1993 (Cth), this matter is referred for further mediation between the applicant, NTSCORP Limited and the active Indigenous Respondents by a Registrar of the Court.

3.The further mediation is to be commence by 16 September 2019 and conclude by 21 November 2019. 

4.The Registrar is to provide a mediation report to the Court by 22 November 2019. 

5.The applicant to file a progress report by 4 December 2019. 

6.The matter is to be listed  case management hearing on 11 December 2019. 

7.The parties have liberty to restore on 48 hours’ notice. 

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1. These three matters were listed for a case management hearing on 23 July 2019.  Technical difficulties created by the number of parties appearing by telephone at the same time caused the hearing to be terminated. 

2. Later that day, the parties were contacted by the Registry and told that, in order to avoid unnecessary future expense by having a further case management hearing, the Court was minded to make proposed orders joining Lithgow City Council as a party to the proceeding and also making orders for the three matters to proceed to a further mediation. 

3. The parties were invited to file and serve a written outline of submissions in opposition to the proposed joinder order and/or proposed orders concerning a further mediation. 

4. No opposition was expressed to the making of the joinder order.  The Court is satisfied, based on the affidavit dated 1 May 2019 of Graeme Faulkner that the Council’s interests may be affected.  Based on Mr Faulkner’s affidavit, the Court is satisfied that it is in the interests of justice that Lithgow City Council be joined as a party in the proceeding. 

5. The second part of the scheduled case management hearing related to the issue whether the three proceedings should be referred for further mediation between the applicant, NTSCORP Limited and the active Indigenous Respondents.  The Court received proposed minutes of orders to that effect from the applicant and NTSCORP.  Mr Reilly, who represents the Ibbai Waggan respondents also notified the Registry that they now have legal representation for the purposes of participating and the mediation. 

6. By an email sent to all parties on the afternoon of 23 July 2019, the Court advised that it was minded to make orders along the lines of the proposed short minutes of order provided by the applicant in preparation for the case management hearing, but it gave an opportunity for anyone to oppose that course by filing a brief written submission before 4:15pm 26 July 2019 as to why the proposed orders should not be made.  The parties were advised that the Court would determine the matters on the papers and without a further hearing. 

7. The only person who opposed the making of the proposed orders was Mr Trevor Robinson, who represented himself and was a previously inactive Indigenous Respondent, who wished to become active.  He asked that the mediation process be delayed and not begin until 1 November 2019.  He said that he wished to call several Wiradjuri nation meetings to discuss the Warrabinga-Wiradjuri claim and to solicit affidavits from the Wiradjuri people regarding these matters.  He said that he also wanted to provide the Wiradjuri people with a letter he had written to the Australian National Audit Office regarding what he described as “the abuse of the Native Title Process for financial gain through “phoenix operations”.” 

8. Mr Robinson has not persuaded me that the proposed further mediation process should be delayed.  Mr Robinson has between now and 16 September 2019 (the earliest point from which the proposed mediation can commence), to attend to the matters he describes.  It is in everyone’s interest that the mediation process not be delayed any further because it has the prospect of narrowing the disputed issues and reducing the scope for costly contested legal proceedings.

   Conclusion

9. For these reasons, an order will be made joining Lithgow City Council as a respondent in the proceeding and orders will be made in relation to the proposed mediation.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       31 July 2019

SCHEDULE OF PARTIES

NSD 857 of 2017
NSD 543 of 2013
NSD 1786 of 2016

First Applicant	WENDY LEWIS
Second Applicant	MAVIS AGNEW
Third Applicant	MARTIN DELAUNEY
Applicant	WARRABINGA-WIRADJURI #7
Second Respondent	COMMONWEALTH OF AUSTRALIA
Third Respondent	BLUE MOUNTAINS CITY COUNCIL
Fourth Respondent	MID-WESTERN REGIONAL COUNCIL
Fifth Respondent	DINAWAN DYRRIBANG UNCLE BILL ALLEN JR
Sixth Respondent	LLOYD ATKINSON
Seventh Respondent	EMMA MAY GRACE ATTKINS
Eighth Respondent	BATHURST LOCAL ABORIGINAL LAND COUNCIL
Ninth Respondent	JUDY BELL
Tenth Respondent	BRADLEY ROBERT BLISS
Eleventh Respondent	PAUL WILLIAM BRYDON
Twelfth Respondent	KIM MAY BURKE
Thirteenth Respondent	WAYNE ALFRED CARR
Fourteenth Respondent	ISABEL COE
Fifteenth Respondent	LESLIE JOHN COE
Sixteenth Respondent	LYNDA-JUNE COE
Seventeenth Respondent	BRENDON JOHN COOK
Eighteenth Respondent	HAYDON THOMAS CROOK
Nineteenth Respondent	DEERUBBIN LOCAL ABORIGINAL LAND COUNCIL
Twentieth Respondent	YANHADARRAMBAL JADE WILLIAM FLYNN
Twenty First Respondent	BRIAN GRANT
Twenty Second Respondent	PETA SUSAN HOLMES
Twenty Third Respondent	KEITH KEMP
Twenty Fourth Respondent	KERRIE LEE LEWIS
Twenty Fifth Respondent	KEVIN SAMUEL MAYS
Twenty Sixth Respondent	KACIE MITCHELL
Twenty Seventh Respondent	MUDGEE LOCAL ABORIGINAL LAND COUNCIL
Twenty Eighth Respondent	CLINTON NIX
Twenty Ninth Respondent	JAYLA NIX
Thirtieth Respondent	PAMELA NIX
Thirty First Respondent	ZAC NIX
Thirty Second Respondent	NSW ABORIGINAL LAND COUNCIL
Thirty Third Respondent	NTSCORP LIMITED
Thirty Fourth Respondent	JOHN THOMAS RILEY
Thirty Fifth Respondent	TREVOR ROBINSON
Thirty Sixth Respondent	ALEXANDRA MAREE ROSS
Thirty Seventh Respondent	CASSANDRA JAYNE ROSS
Thirty Eighth Respondent	SANDRA MAREE ROSS
Thirty Ninth Respondent	ZACHARY JOHN HENDERSON ROSS
Fortieth Respondent	GREGORY JOHN SMITH
Forty First Respondent	JASON SMITH
Forty Second Respondent	KAREN SMITH
Forty Third Respondent	NATLY SMITH
Forty Fourth Respondent	PATRICIA SMITH
Forty Fifth Respondent	ROBERT SMITH
Forty Sixth Respondent	STEPHEN SMITH
Forty Seventh Respondent	LATOYA TERRY
Forty Eighth Respondent	STEPHANIE TERRY
Forty Ninth Respondent	NORMA MARY THOMAS
Fiftieth Respondent	WANARUAH LOCAL ABORIGINAL LAND COUNCIL
Fifty First Respondent	WELLINGTON VALLEY WIRADJURI ABORIGINAL CORPORATION
Fifty Second Respondent	BRETT JAMES WHYMAN
Fifty Third Respondent	DOROTHY FAY WHYMAN
Fifty Fourth Respondent	EDWARD CHARLES WHYMAN
Fifty Fifth Respondent	ROBERT HEWITT WHYMAN
Fifty Sixth Respondent	VANESSA FAY WHYMAN
Fifty Seventh Respondent	PETER HOWARD WIGHTON
Fifty Eighth Respondent	AARON JAMES WILLIAMS
Fifty Ninth Respondent	DALLAS JOHN WILLIAMS
Sixtieth Respondent	TAYLAH JADE WILLIAMS
Sixty First Respondent	TYSON JAMES WILLIAMS
Sixty Second Respondent	ZACHERY AARON WILLIAMS
Sixty Third Respondent	BIANCA JADE WILSON
Sixty Fourth Respondent	DANE JOSEPH WILSON
Sixty Fifth Respondent	DYLAN JAY WILSON
Sixty Sixth Respondent	KYLE JAMES WILSON
Sixty Seventh Respondent	VANESSA ELIZABETH WILSON
Sixty Eighth Respondent	RUSSELL KEITH DICKENS
Sixty Ninth Respondent	EMIRATES HOTELS (AUSTRALIA) PTY LIMITED ACN 113 608 414
Seventieth Respondent	GREGORY LYLE HUNDY
Seventy First Respondent	JAMES WILLIAM EDWARD WALKER
Seventy Second Respondent	WARRUMBUNGLE SHIRE COUNCIL
Seventy Third Respondent	CENTENNIAL AIRLY PTY LIMITED ACN 078 693 722
Seventy Fourth Respondent	SHOALHAVEN COAL PTY LTD
Seventy Fifth Respondent	SITEGOAL PTY LTD
Seventy Sixth Respondent	WALKER QUARRIES PTY LTD
Seventy Seventh Respondent	JAMES BALLAS
Seventy Eighth Respondent	ANNE MARGARET BLAMEY
Seventy Ninth Respondent	CHRISTOPHER JOHN BLAMEY
Eightieth Respondent	LIONEL BRAITHWAITE
Eighty First Respondent	WILLIAM ARTHUR BROWN
Eighty Second Respondent	JANE BURSILL
Eighty Third Respondent	DAVID LEE CLARKE OF PH CLARKE & SON
Eighty Fourth Respondent	LEIGH JOHN DESREAUX
Eighty Fifth Respondent	HEATHER GEORGE
Eighty Sixth Respondent	ANTHONY GIBSON
Eighty Seventh Respondent	PETER RONALD GRIEVE
Eighty Eighth Respondent	ALAN LOVELL HEATH
Eighty Ninth Respondent	KD FOLPP P/L
Ninetieth Respondent	RACHELLE MCMAHON
Ninety First Respondent	RONALD CHARLES MILTON
Ninety Second Respondent	HENRY WILLIAM PEARCE
Ninety Third Respondent	LINDSEY PIGGOTT
Ninety Fourth Respondent	JOYCE MILDRED PURTLE
Ninety Fifth Respondent	GREGORY JAMES ROHR
Ninety Sixth Respondent	TIMOTHY JOHN ROHR
Ninety Seventh Respondent	DIANA LUCY RUTTER
Ninety Eighth Respondent	KEITH LAWRENCE RUTTER
Ninety Ninth Respondent	PAULYNE MAY SANDER
One Hundredth Respondent	ROBYN PEARL SMITH
One Hundred First Respondent	SALVATORE SPANO
One Hundred Second Respondent	AMANDA CAROLINE SEE STEWART
One Hundred Third Respondent	GAY SUMMERS
One Hundred Fourth Respondent	SUNTALA PTY LTD
One Hundred Fifth Respondent	MICHAEL ANDREW SUTTOR
One Hundred Sixth Respondent	ALLAN ALBERT WALES
One Hundred Seventh Respondent	WIDDEN STUD PTY LTD
One Hundred Eighth	RYLSTONE KANDOS ANGLERS CLUB INC
Respondent
One Hundred Ninth Respondent	WALLERAWANG BRANCH OF THE CENTRAL ACCLIMATISATION SOCIETY
One Hundred Tenth Respondent	AUSTRALIAN RAIL TRACK CORPORATION ACN 081 455 754
One Hundred Eleventh Respondent	TELSTRA CORPORATION LIMITED ABN 33 051 775 556
One Hundred Twelfth Respondent	NSW ELECTRICITY NETWORKS OPERATIONS PTY LTD AS TRUSTEE FOR THE NSW ELECTRICITY NETWORKS OPERATIONS TRUST ACN 609 169 959 (TRANSGRID)
One Hundred Thirteenth Respondent	COOYAL PARK RESERVE TRUST R120102
One Hundred Fourteenth Respondent	DUNEDOO SHOWGROUND TRUST RESERVE NO R83113
One Hundred Fifteenth Respondent	OLINDA PUBLIC RECREATION RESERVE TRUST
One Hundred Sixteenth Respondent	EVELYN MARGARET WATSON

ASSISTED DISPUTE RESOLUTION

Applicant	WENDY LEWIS
Applicant	MAVIS AGNEW
Applicant	MARTIN DELAUNEY
Applicant	WARRABINGA-WIRADJURI #7
Respondent	KEITH KEMP
Respondent	BRADLEY ROBERT BLISS
Respondent	JOHN THOMAS RILEY
Respondent	WAYNE ALFRED CARR
Respondent	WELLINGTON VALLEY WIRADJURI ABORIGINAL CORPORATION