FEDERAL COURT OF AUSTRALIA

Wharton on behalf of the Kooma People v State of Queensland

[2004] FCA 1761

WAYNE WHARTON ON BEHALF OF THE KOOMA PEOPLE v STATE OF QUEENSLAND & ORS

Q2 OF 2004

EMMETT J

4 FEBRUARY 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of motion filed on 9 January 2004 be referred to the Full Court of the Federal Court.

2.         The applicant on the motion pay the costs of the parties thrown away by reason of the referral of the motion to the Full Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     There is before the Court a motion seeking leave to appeal from orders made by me on 10 December 2003.  The application for leave to appeal was made out of time, and the motion also seeks an order extending the time within which to make the application for leave.

2                     When the matter was called on this morning, counsel for the applicants on the notice of motion, the Queensland South Representative Body Aboriginal Corporation (‘the Bramfield applicants’), requested that the whole of the motion be referred to a Full Court.  That was opposed by the applicant in the proceeding, Mr Wayne Wharton.  The matter in respect of which I made the orders has had a somewhat chequered history. 

3                     The Bramfield applicants applied for dismissal of the proceeding broadly on the ground of lack of authorisation.  I heard argument sometime ago, and on 18 June 2003, published my reasons for concluding that Wayne Wharton was not authorised to bring the application.  However, before making any orders, I considered that it was appropriate that the parties have the opportunity for considering my conclusions and the reasons for them.  I therefore adjourned the proceeding to 5 August 2003.  In the meantime, counsel for Wayne Wharton sought to raise a further matter, as a result of which I heard further argument from the parties on the question of authorisation.

4                     On 3 December 2003, my reasons were published, concluding that Wayne Wharton did have authority to bring the application.  Accordingly, on 10 December 2003, I ordered that the motion for dismissal be itself, dismissed.   The motion before me today relates to the orders that I made on 10 December 2003.

5                     Having regard to that history, the question of authorisation should be resolved by a Full Court.  That is not to say that I have any doubt as to the conclusion that I reached in my reasons of 3 December 2003.  However, the matter is one of some significance, and it may be that there would be, in some circumstances, a conflict between my reasons and reasons of other judges of the court.  For that reason I would be disposed to grant leave to appeal from my orders.

6                     However, I am not persuaded that the explanation for the failure to comply with the rules as to time is totally satisfactory.   The explanation offered for the delay is that before instructions could be sought from the Bramfield applicants, written advice from senior counsel was required concerning the prospects of appeal, and that it was not possible to obtain that advice before 6 January 2004.  It was also said that before the Queensland South Representative Body Aboriginal Corporation could consider funding any appeal, it was necessary to obtain senior counsel's written advice.

7                     Notwithstanding that that advice was not to be available before 6 January 2004, a meeting had been scheduled with the clients for 18 December 2003 for the purposes of obtaining instructions.  There seems to be some inconsistency between that proposition and the assertion that it was not possible to get instructions without opinion from senior counsel, which could only be obtained after 6 January 2004.

8                     Be that as it may, it is also necessary to have regard to the history, which I have already briefly related, as to the failure to raise in the first hearing the operation of the provisions of the Native Title Act 1993 (Cth), that I ultimately held were decisive.  It seems to me that in considering an application for an extension of time, the Court would need to exercise appellant jurisdiction.

9                     Accordingly, a refusal of an extension would be fatal to any application for leave to appeal.  Rather than form a final view therefore, as to the appropriateness of an extension of time, I consider that it is preferable to accede to the request of the Bramfield applicants to refer the notice of motion to a Full Court.  However, it was not until today that counsel for the Bramfield applicants made clear the intention that the matter not proceed today.

10                  The parties prepared on the assumption that the motion would be dealt with by me.   The costs of preparation of the argument have, therefore, been thrown away.  In the circumstances, I consider that it is appropriate to order the Bramfield applicants to pay the costs of the parties thrown away by a need to refer the notice of motion to a Full Court.  Accordingly, I will refer the notice of motion filed on 9 January 2004 for consideration by a Full Court.  I order the applicants on the motion to pay the costs of the other parties thrown away by the referral of the notice of motion to a Full Court.

Associate:

Dated:              19 January 2005