West on behalf of the Djaku-nde and Jangerie Jangerie Peoples v State of Queensland

[2011] FCA 840

FEDERAL COURT OF AUSTRALIA

West on behalf of the Djaku-nde and Jangerie Jangerie Peoples v State of Queensland [2011] FCA 840

Citation:		West on behalf of the Djaku-nde and Jangerie Jangerie Peoples v State of Queensland [2011] FCA 840
Parties:		ALICE WEST & ORS ON BEHALF OF THE DJAKU-NDE & JANGERIE JANGERIE PEOPLES v STATE OF QUEENSLAND & ORS
File number:		QUD 6009 of 2000
Judge:		COLLIER J
Date of judgment:		27 July 2011
Date of hearing:	27 July 2011
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Solicitor for the Applicant:	Mr C Hardie of Just Us Lawyers
Counsel for the State of Queensland:	Ms E Longbottom
Solicitor for the State of Queensland:	Crown Law
Solicitor for the North Burnett Regional Council, South Burnett Regional and Western Downs Regional Council:	Ms J Humphris of MacDonnells Law
Solicitor for various pastoralists, LC Barbour, LC Betts, KJ & RW Briggs, RE Carlyle, HR, CB & SR Hatton, CJ Meyer, LG Purness, JV & JL Robertson, DAC & MR Slater, LWN Taylor & PL Tucker:	Mr M Boge of Thynne & Macartney

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6009 of 2000

BETWEEN:	ALICE WEST & ORS ON BEHALF OF THE DJAKU-NDE & JANGERIE JANGERIE PEOPLES Applicant
AND:	STATE OF QUEENSLAND & ORS Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	27 JULY 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Order 1 of the notice of motion filed 24 May 2011 be dismissed.

2.Native Title Application QUD6009 of 2000 Alice West & Ors on behalf of the Djaku‑nde & Jangerie Jangerie Peoples v State of Queensland & Ors be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 6009 of 2000

BETWEEN:	ALICE WEST & ORS ON BEHALF OF THE DJAKU-NDE & JANGERIE JANGERIE PEOPLES Applicant
AND:	STATE OF QUEENSLAND & ORS Respondent

JUDGE:	COLLIER J
DATE:	27 JULY 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This morning I heard submissions from Mr Hardie for the Djaku-nde and Jangerie Jangerie Peoples, Mr Boge for the respondent pastoralists, Ms Longbottom for the State and Ms Humphris for North Burnett Regional Council, South Burnett Regional and Western Downs Regional Council (“the Regional Councils”) in respect of paragraph 1 of a notice of motion filed by Mr Hardie’s clients on 24 May 2011. In paragraph 1 of that notice of motion Mr Hardie’s clients sought the following order:

   1.  Orders 1 and 3 of Collier J made on 16 February 2011 be vacated.

2. Other orders were also made on 24 May 2011, including that on 12 June 2011 the Applicant hold an authorisation meeting for the purpose of authorising amendments to the claim or a new claim (Order 2) and that by 27 June 2011 the Applicant file and serve upon respondents in attendance on 24 May 2011 a report detailing the outcome of the authorisation meeting and steps to be taken to amend or file a new Application.

3. Orders 1 and 3 of my orders of 16 February 2011 were as follows:

   1.        That the applicant be granted leave to discontinue this application.

   …

   3.That in the event that the applicant has not discontinued this application by 16 June 2011, then the application is dismissed from that date.

4. In summary therefore, my orders of 16 February 2011 (in particular Order 3) were in the nature of “guillotine” orders in respect of the native title claim of the Djaku-nde and Jangerie Jangerie Peoples, and the notice of motion filed 24 May 2011 sought orders vacating those guillotine orders.

5. This morning in Court Mr Hardie conceded that there was no legal basis on which he could oppose the enforcement of the guillotine orders. He submitted however, that there is a prospect of a new claim being filed, in which the members of the Djaku-nde and Jangerie Jangerie Peoples have an interest. He submitted that the anthropologist Dr Fiona Powell is currently undertaking anthropological research in respect of this new claim, and that her anthropological report should be completed by 8 August 2011. Mr Hardie submitted that his clients sought some continuity between the end of the current claim and the production of research supporting the new claim. To that extent, Mr Hardie has asked the Court to postpone the effect of the guillotine orders until 8 August 2011 to provide some moral certainty and continuity to his clients.

6. The State of Queensland and the Regional Councils neither support not oppose the notice of motion, nor apparently the submission of Mr Hardie concerning possible postponement of the effect of the guillotine orders. However Mr Boge for the respondent pastoralists opposes both the notice of motion and any orders whereby the guillotine orders are postponed.

7. The Court sympathises with the members of the native title claim group. This claim has been on the Court record for eleven years, with a chequered history. That a fresh native title claim is pending, as submitted by Mr Hardie, is encouraging. However I am not persuaded that there is any reason to prolong a claim which:

   ·is eleven years old;

   ·has no prospects of success;

   ·has not been prosecuted (indeed, I understand from Mr Hardie’s submissions that the anthropological research apparently being currently undertaken by Dr Powell relates to a new claim, not the current claim); and

   ·is prejudicial to the respondents as causing them to waste time and resources (including, for example, appearance in Court today).

8. I agree with Mr Boge’s submission that, if the Court were to postpone the effect of the guillotine orders until 8 August 2011, there is a possibility that the applicant could return around that date seeking a further extension of time because, for example, Dr Powell’s report has not been completed.

9. The wish of the applicant to have some continuity in respect of its claim does not, in my view, warrant the continuation on the Court record of a claim which no longer has a place there. Mr Boge has submitted, with characteristic candour, that “enough is enough”. I agree.

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

Associate:

Dated:        27 July 2011