Federal Court Removes Native Title Claimant for Unwillingness to Act

OUTCOME: Struck Out

FEDERAL COURT OF AUSTRALIA

[NAME] on behalf of the [NAME] v State of Queensland [2014] FCA 1003 Citation: [NAME] on behalf of the [NAME] v State of Queensland [2014] FCA 1003

Parties: [NAME], [NAME], [NAME[NAME], [NAME] [NAME], [NAME] AND [NAME] ON BEHALF OF THE [NAME] v [NAME] (AS PER SCHEDULE OF RESPONDENTS)

File number: QUD 554 of 2010

Judge: DOWSETT J

Date of judgment: 7 July 2014

Date of hearing: 7 July 2014

Place: [APPELLANT]: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 4

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Solicitor for the First Respondent: [redacted]

Solicitor for the Second Respondent: [redacted]

Solicitor for Ms [COUNSEL]: Ms [COUNSEL] was self-represented

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 554 of 2010

BETWEEN: [NAME], [NAME], [NAME[NAME], [NAME], [NAME], [NAME] AND [NAME] ON BEHALF OF [NAME]

AND: [NAME] (AS PER SCHEDULE OF RESPONDENTS)

Respondents

[APPELLANT] OF ORDER: 7 JULY 2014 [APPELLANT]

THE COURT ORDERS THAT:

1. [APPELLANT] name be deleted from the description of the applicant and the name [APPELLANT] be substituted for it. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA [APPELLANT] 554 of 2010

BETWEEN: [NAME] [NAME], [NAME], [NAME[NAME], [NAME[NAME], [NAME], [NAME], [NAME] [NAME] AND [NAME] ON BEHALF OF [NAME]

AND: [NAME] (AS PER SCHEDULE OF RESPONDENTS)

Respondents

JUDGE: DOWSETT J DATE: 7 JULY 2014 PLACE: [APPELLANT] FOR

JUDGMENT 1 Since a meeting of the [COMPANY] held on 20 October 2013, and pursuant to a subsequent order of the Court, the [COMPANY] is described as all those persons who are descended from [NAME[NAME], [NAME], [NAME] (or Stell), [NAME[NAME] and his wife [NAME], [NAME], [NAME] [NAME], mother of [NAME], and [NAME]. At the same meeting, the [COMPANY] addressed the composition of the applicant. The applicant is presently comprised of [APPELLANT] [NAME], [APPELLANT] [NAME], [NAME[NAME], [NAME], [NAME] and [NAME[NAME]. At the meeting on 20 October 2013, the [COMPANY] agreed that in the event that a member of the applicant either died or was unwilling or unable to act, another nominated person would act. In the case of Ms [NAME], the resolution provided: In the event of the death, unwillingness or inability to act of [NAME] then [NAME] shall have authority to and is authorized to be one of the persons making up the applicant. 2 The present application for a native title determination is the second involving the same [COMPANY]. It has previously obtained a consent determination over other land. Ms [NAME] claims membership of the [COMPANY] through [NAME]. Ms [NAME] was also an apical ancestor in the earlier determination. It seems quite clear that the [COMPANY] has agreed that she is an apical ancestor. Ms [RESPONDENT] now wishes to be joined as a respondent in order to investigate and, perhaps oppose Ms [RESPONDENT] inclusion as an apical ancestor. At least implicitly, [NAME]'s authority to act as a member of the applicant was to act in accordance with the resolution of the [COMPANY] as to the description of its own composition. Ms [RESPONDENT] application to be joined as a respondent for the purpose of opposing a determination which includes Ms [NAME] as an apical ancestor indicates that she is no longer willing to act in accordance with instructions from the [COMPANY]. In those circumstances Mr [NAME] is now authorized to act in her place. 3 In the course of argument, it has emerged that the members of the applicant have not been given copies of the anthropological evidence upon which the consent determination is to be based. No doubt they have been acquainted with its contents, but it is unsatisfactory that litigation of this kind should be conducted upon the basis that the effective moving parties in the matter should not be allowed complete and unfettered access to the content of the most important evidence in the case. There may be exceptions to this. There may be reasons why some parts should be kept confidential but, in general, in my view at least, the lawyers should start with the assumption that the applicant members are entitled to access, and then to decide whether there is good reason for not giving them such access. By access I do not mean allowing them to examine the report in the rather artificial, and perhaps alien circumstances of a solicitor's office or a Land Council office. I see no reason why they ought not have access to copies in circumstances in which they can, at their leisure, examine and assess the information in question. I stress, however, that I accept that there may be some parts of the material in respect of which confidentiality should be maintained. 4 I order that Ms [APPELLANT] name be deleted from the description of the applicant, and the name "[APPELLANT]" be substituted for it. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate: Dated: 15 September 2014 SCHEDULE OF RESPONDENTS STATE OF QUEENSLAND First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent WHITSUNDAY REGIONAL COUNCIL Third Respondent [RESPONDENT] Respondent [COMPANY] Respondent [NAME], [RESPONDENT] [NAME], [NAME], [RESPONDENT], [NAME], [NAME] [NAME], [NAME], [COMPANY] [COMPANY] [COMPANY], [COMPANY] Respondent [RESPONDENT] [COMPANY] Respondent [COMPANY] Respondent [RESPONDENT] [NAME], [RESPONDENT] [NAME], [NAME], [NAME], [NAME], [NAME], [NAME], [NAME] [NAME] [NAME], [NAME] [NAME], [NAME] [NAME], [NAME] [NAME], [NAME] [NAME], [NAME] [NAME], [NAME] [NAME], [NAME] [NAME], [RESPONDENT] [NAME] Respondent [NAME], [NAME] Respondent