FEDERAL COURT OF AUSTRALIA

Budby on behalf of the Barada Barna People v State of Queensland (No 5) [2015] FCA 1511 

Citation:	Budby on behalf of the Barada Barna People v State of Queensland (No 5) [2015] FCA 1511	
		
Parties:	LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE v STATE OF QUEENSLAND AND OTHERS NAMED IN THE ATTACHED SCHEDULE OF PARTIES	
		
File number:	QUD 380 of 2008	
		
Judge:	DOWSETT J	
		
Date of judgment:	18 November 2015	
		
Date of hearing:	18 November 2015	
		
Place:	Brisbane	
		
Division:	GENERAL DIVISION	
		
Category:	No Catchwords	
		
Number of paragraphs:	9	
		
Counsel for the Applicant:	Mr K Barlow QC with Mr J Waters	
		
Solicitor for the Applicant:	Dillon Bowers Lawyers	
		
Counsel for the Widi Applicant:	Ms S Phillips	
		
Solicitor for the Widi Applicant:	North Queensland Land Council	
		
Counsel for the applicant in interlocutory application filed on 2 November 2015:	Ms V Hunter appeared in person	
		
Counsel for the applicant in interlocutory application filed on 3 November 2015:	Ms J Johnson appeared in person	
		
Counsel for the applicant in interlocutory application filed on 10 November 2015:	Mr N Johnson appeared in person	
		
Counsel for State of Queensland:	Ms S Brown QC with Ms E Longbottom	
		
Solicitor for State of Queensland:	Crown Solicitor	
		
Solicitor for Commonwealth of Australia:	Ms J MacDonald of Australian Government Solicitor	
		
Solicitor for the Group 2 Respondents:	Mr D Saylor of North Queensland Land Council	
		
Solicitor for the Group 2(a) Respondents:	Mr S Hegedus of Queensland South Native Title Services	
		
Counsel for the Groups 1(a), 3, 4 and 5 Respondents:	The Groups 1(a), 3, 4 and 5 Respondents did not appear	

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 380 of 2008	
 
BETWEEN:	LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE
Applicant
	
AND:	STATE OF QUEENSLAND AND OTHERS NAMED IN THE ATTACHED SCHEDULE OF PARTIES
Respondent

JUDGE:	DOWSETT J	
DATE OF ORDER:	18 NOVEMBER 2015	
WHERE MADE:	BRISBANE	

THE COURT ORDERS THAT:

1.	the interlocutory application filed by Vassa Iris Hunter on 2 November 2015 is refused;
2.	the interlocutory application filed by Juanita Johnson on 3 November 2015 is refused; and
3.	the interlocutory application filed by Norman Abraham Johnson on 10 November 2015 is refused.

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

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 380 of 2008	
 
BETWEEN:	LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE
Applicant
	
AND:	STATE OF QUEENSLAND AND OTHERS NAMED IN THE ATTACHED SCHEDULE OF PARTIES
Respondent

JUDGE:	DOWSETT J	
DATE:	18 NOVEMBER 2015	
PLACE:	BRISBANE	

REASONS FOR JUDGMENT
1		Vassa Hunter, Juanita Johnson, and Norman Abraham Johnson Senior (the “interlocutory applicants”) apply to be joined as respondents in proceedings which I shall describe as the “Barada Barna application”.  In those proceedings the Applicant seeks a determination as to the existence of native title.  There are already numerous respondents to the claim, the principal respondents being the State, and the Widi Applicant.  The Widi Applicant seeks a determination as to the existence of native title over an area which overlaps the Barada Barna claim area.  Both claims are part of a very long history of litigation involving various native title claims over wider areas, of which the two claim areas are parts.
2		On 22 May 2014, the Barada Barna application was set down for trial, commencing on Monday last.  However, since it was set down, substantial progress has been made in negotiations between the Barada Barna Applicant, the Widi Applicant, and the State.  It is now thought that an ultimate resolution by consent may be possible.  For that reason, I have deferred the commencement of the trial for two weeks.  I gather that the prospects of a consent determination are still quite substantial, although the parties have not yet agreed.
3		The interlocutory applicants claim to be Widi People.  However they are not accepted as such by the Widi claim group.  They seek to be joined in the Barada Barna application in order to protect what they perceive to be the rights of the Widi People over the overlap area to which I have referred.  All three have played major roles in native title litigation over many years.  When native title proceedings are commenced, there is a process of notification which is designed to identify those who may wish to oppose the application and to offer them the opportunity to be joined in the proceedings.  Hence it seems odd that the interlocutory applicants are not presently parties to these proceedings.  One of them, Mr Johnson, was a party for quite a long time.  However, on 22 May 2014, in anticipation of the matter coming on for trial, I directed that on or before 29 July 2014 each respondent, other than the State of Queensland, file and serve on the Barada Barna Applicant and other parties an affidavit, stating the nature of the interest which that respondent claimed to hold in the area, and how that interest might be affected by any determination in these proceedings.  I further ordered that if any respondent failed to file and serve an affidavit in accordance with my order, such respondent would be dismissed from the proceedings.  As I understand it, Mr Johnson now accepts that on 8 July 2014 the Court sent notice of that order to “Mr Norman Johnson at Post Office Box 41, Walkerston, Queensland”.  He says that it did not come to his attention, but it seems to me that as it was sent to his address for service, it was a matter for him to ensure that he made himself aware of documents concerning the case which were delivered to that address.  In any event, no affidavit of the kind contemplated by my order was ever filed on his behalf.  Hence, on 29 July 2014, he ceased to be a respondent in the proceedings.
4		He has not sought to explain why he did not respond to the order, save to say that he did not become aware of it.  There is no sworn evidence to that effect.  He has not explained why he waited from 29 July 2014 until quite recently in order to make the relevant application.  In those circumstances, it would be grossly unfair to allow him to be joined now, with the attendant prospect of dislocation to the proceedings.
5		The litigation has been fragmented and has taken many forms.  Many people, not least of whom are the anthropologists, have made great efforts to sort out the difficulties associated with identifying native title in this area.  One is reminded of the words of Lord Palmerston, when he said that only three people had ever understood the ownership of Schleswig‑Holstein: “One is dead, one is insane, and I myself have forgotten”.
6		I accept, for present purposes, that the interlocutory applicants have provided some basis for asserting claims to rights in respect of the overlap area.  That is an assumption rather than a finding.  It does not affect the ultimate question for resolution today, which is whether or not, at this very late stage in the Barada Barna proceedings, these three people should be joined as respondents, a step which is likely to disrupt the agreements already reached between the parties, and those which are likely to be reached in the near future.  
7		Further, it is difficult to see how, if they are joined, the trial could proceed in the immediate future.  The interlocutory applicants have not clearly identified the case, or cases, which they wish to advance.  At least one of them asserted that there would be no delay, but I find that difficult to accept.  The question is whether justice would be done if I were to join these applicants, given the prospect that much of the effort which has gone into reaching the present position might be thrown away, and the possibility of a trial commencing in the next couple of weeks significantly reduced.
8		Having said all of that, I note that the interlocutory applicants say that they have not had the benefit of resources provided by the Commonwealth for the purpose of facilitating their participation in these proceedings.  This assertion may well be true.  The Commonwealth makes certain amounts available to the various land councils and other representative bodies for the purpose of funding applications of this kind.  There is, necessarily, a selection process involved in the allocation of funds.  The Court can offer some degree of indulgence where individual parties find that they are without funds to advance litigation in which they are involved, or wish to be involved.  However, that cannot go on for too long.  In the end, it is for the parties who seek to litigate to find the funds to do so.  If they cannot do so then, in the end, they cannot litigate, unless they are able to act for themselves.
9		In those circumstances, it seems to me that I cannot, having regard to the interests of justice, accede to Mr Johnson’s application, given his prior involvement and the choices that he has made.  As to the other two applicants, they are, in one sense, in a worse position than Mr Johnson, but in another sense, in a better position.  They have, until now, made no attempt to be joined in these proceedings.  In that sense, one might think that it is even harder for them to satisfy me that they should be allowed to join at this stage.  On the other hand, unlike Mr Johnson, they have not previously been parties and allowed themselves to be dismissed.  In that sense, they are perhaps in a somewhat stronger position than is he.  In the end, however, I think it makes no difference.  Once again, it would not be in the interests of justice to join them at this stage.  The applications will be refused.  There will be no orders as to costs.

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

Associate:

Dated:	29 January 2016

SCHEDULE OF PARTIES

Widi Applicant:

EILEEN BERYL PEGLER
PAUL ROYCE BUTTERWORTH
MARILYN JOYCE DUNCAN
ATHOL NOEL GOLTZ
LORRAINE JOYCE MCLENNAN
KENNETH STEWART PETERS
GRAHAM IAN SAUNEY
OSWALD ALFRED SKEEN
LINDA WAILU
RONALD JOCK WATSON

Group 1 Respondents:

COMMONWEALTH OF AUSTRALIA

Group 1(a) Respondents:

CENTRAL HIGHLANDS REGIONAL COUNCIL
ISAAC REGIONAL COUNCIL
MACKAY REGIONAL COUNCIL

Group 2 Respondents:

NORTH QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION
NANCY RIEHL
AMANDA SAUNEY
COLLEEN SAUNEY
ERROL SAUNEY
JOANNE SAUNEY
JOSHUA SAUNEY
LANCE SAUNEY
LINDSAY SAUNEY
MAXINE SAUNEY
NIKITA SAUNEY
ROSS SAUNEY
SHANE SAUNEY
TONY SMALLWOOD
LINDA JOYCE WAILU
CELESTE WALSH
DALEY WHITE
DAMIAN WHITE
DANIEL WHITE
SAMANTHA WHITE
KATHLEEN WINDSOR

Group 2(a) Respondents:

ANTHONY MARK HENRY

Group 3 Respondents:

ERGON ENERGY CORPORATION LIMITED
TELSTRA CORPORATION LIMITED

Group 4 Respondents:

ANGLO COAL (GERMAN CREEK) PTY LTD
ANGLO COAL (GROSVENOR) PTY LTD
BOWEN CENTRAL COAL PTY LTD
CAPCOAL MINE JOINT VENTURERS
EXXARO AUSTRALIA PTY LTD
MARUBENI COAL PTY LTD
MORANBAH NORTH COAL PTY LTD
MORANBAH NORTH MINE JOINT VENTURERS
NEBO CENTRAL COAL PTY LTD
NIPPON STEEL & SUMITOMO METAL AUSTRALIA PTY LTD (FORMERLY KNOWN AS NIPPON STEEL AUSTRALIA PTY LIMITED
NORTH QUEENSLAND PIPELINE NO 1 PTY LTD
NORTH QUEENSLAND PIPELINE NO 2 PTY LTD
OLDFIELD EXPLORATION PTY LIMITED
PEABODY BB INTERESTS PTY LTD
PEABODY COPPABELLA PTY LTD
PEABODY MOORVALE WEST PTY LTD
PEABODY WEST BURTON PTY LTD
PEABODY WEST WALKER PTY LTD
QUEENSLAND COAL PTY LIMITED
RIO TINTO EXPLORATION PTY LTD
SCENTRE LIMITED (FORMERLY KNOWN AS WESTFIELD LTD)
SUMISHO COAL DEVELOPMENT QUEENSLAND PTY LTD
VALE AUSTRALIA (CQ) PTY LTD
VALE AUSTRALIA (IP) PTY LTD
VALE COAL EXPLORATION PTY LTD

Group 5 Respondents:

ARDAY PTY LTD
JOHN THOMAS BAKER
MARNIE LOUISE BAKER
ANTHONY JOHN BELLA
EDWARD MARTIN BELLA
MARTIN JOSEPH BELLA
PETER ANDREW BELLA
REGENA FRANCES BELLA
ROBERT JAMES BELLA
STEPHEN EDWARD BELLA
ROBERT JOHN BORG
HAROLD GEORGE BRADFORD
RUTH BRADFORD
LAWRENCE PAUL DANASTAS
MARION CARMEL DANASTAS
KATHRYN HEAD
THOMPSON HEAD
PETER MALCOLM HUGHES
RAYE MARILYN O'SULLIVAN
ROBERT ALAN O'SULLIVAN
WAYNE HOWARD PETTS
ALAN GRIFFITHS SYMONDS
KIM FRANCES WILLOUGHBY