FEDERAL COURT OF AUSTRALIA

Wiri People No 2 v State of Queensland [2006] FCA 804

WIRI PEOPLE NO 2 v STATE OF QUEENSLAND

QUD 6251 OF 1998

DOWSETT J

19 JUNE 2006

BRISBANE

REASONS FOR JUDGMENT

1                     On 6 October 2005 I made the following orders in respect of the Wiri People No 2 application:

·                 That the applicant file and serve an amended application on or before 14 October 2005.

·                 That in default thereof the application stand dismissed.

2                     The transcript of proceedings indicates that Mr Owens, who appeared for the applicant, had indicated that he would have difficulty in complying with this order if he were required to insert grid co-ordinates to identify the boundaries of the claim. I indicated to him that, for my purposes, that would not be necessary. He indicated that it would be necessary in order to have the claim registered in the Tribunal.

3                     The Act, in particular subs 62(2)(a), requires that an application contain information:

‘... whether by physical description or otherwise that enables the boundaries of the area covered by the application and any areas within those boundaries that are not covered by the application to be identified.’

4                     There is no requirement in the Act for grid co-ordinates. The matters which were of primary concern at the time that the order was made concerned constitution of the claim group and authorisation of the claim. Those difficulties would have been resolved by compliance with the order, notwithstanding that it may have been necessary further to amend the application to insert appropriate grid references if the applicants wished to proceed to registration in the Tribunal.

5                     In the course of those proceedings Mr Owens indicated that provided he did not have to give grid co-ordinates, he would be able to provide the appropriate amended application within the relevant timeframe. In fact, he did not do so. On 14 October 2005 he filed a notice of motion seeking leave to amend the application in terms of a document exhibited to his affidavit sworn on 14 October 2005.

6                     In my view, that did not constitute compliance with the order. It has been said in the course of these proceedings, that there is not much difference between filing an amended application and filing an application for leave to amend, and that any failure to comply with the order came about as the result of an error on the part of Mr Owens, he believing that he had to apply for leave. I can accept that such an error may have been made but, nonetheless, the applicant did not comply with the order, and so the application stood dismissed. A party who applies for leave to deliver an amended document does not thereby commit him- or herself to that document. By filing an application for leave to amend rather than an amended application, Mr Owens further deferred the time at which the applicant committed itself to a final form of application. Thus he failed to advance the proceedings in the way contemplated in the order.

7                     If the applicant were now in a position to commit bona fide to an amended application which complied with the Act, it would be appropriate to extend time, notwithstanding the failure to comply with the earlier order. Such a step would have the effect of resurrecting the proceedings. For reasons which I will address in a moment, I am not willing to do so. Before doing so, I should deal with one other aspect. The applicant seeks leave to appeal from my order of 6 October 2005. No draft grounds have been prepared, although it seems that it is intended to submit that the order ought not to have been made over Mr Potts’ opposition. However, as I have demonstrated, it was hardly made over his opposition. He all but consented to it. There is, in my view, another reason why leave should not be given. The order was an order made in management of this case. It was made at a time when the matter had been in case management for a very long time. Issues concerning composition of the claim group and authorisation had been raised previously and not sorted out. The order was made on 6 October 2005. That is now more than eight months ago. In the circumstances, it would seriously undermine the case management system and, in particular, the management of this case, if I were to grant leave to appeal at this stage.

8                     Such grounds as have been identified have little or no substance, but I consider the more significant reason for refusing an extension is the delay since the making of the relevant order. As counsel pointed out, the applicant filed an application for leave to amend on 14 October 2005. That application has not been disposed of. However this is the first occasion, as far as I can recall, on which it has been suggested that there should be leave to appeal against the order. Again I stress that it is an order made in the course of case management and only after the matter had been in case management for a quite lengthy period of time. I refuse leave to appeal from the order made on 6 October 2005.

9                     As I have said, notwithstanding the view I take as to events on 14 October 2005, I would be minded to re-instate the proceedings if I were satisfied that the applicant was now in a position to take the matter forward. However, that is not the case. It is quite clear that the proposed amended application which Mr Owens exhibited to his affidavit cannot proceed successfully to determination. That such is the case has appeared in two different ways. Firstly, Mr Owens has made it clear to the Court on a previous occasion that the claim group, as described in that document, is not, in fact, the whole claim group. Secondly, in an affidavit (exhibit 1 in these proceedings) Mr Johnson, who is a member of the applicant group, has also indicated that such claim group includes persons other than those identified in the draft amended application. Further, he says that some names in the claim group should not be included. There may be explanations for these things, but they demonstrate that the applicant is not presently in a position to present a viable application. These proceedings were commenced in 1999.

10                  There is a second potential problem with the draft amended application. It is as to the question of authorization. It was allegedly authorised at a meeting held in Brisbane in June 2005. Why a meeting of this claim group should have taken place in Brisbane is not entirely clear. It seems quite unlikely that it would have attracted maximum attendance from members of the claim group. Indeed, in the course of argument, counsel for the applicant suggested that it was a meeting of a “representative sample” rather than a meeting of the claim group. In this regard, a further problem emerges from the fact that in Mr Johnson’s affidavit (exhibit 1) he asserts, at par 9, that in 1999, when the application was first commenced, a process of decision-making was adopted which apparently involved a majority vote. However, in the draft amended application, it is asserted that the decision taken in June last year was taken ‘in a manner consistent with the traditional laws and customs of the native title claim group’. I have previously, in the course of the case management process, indicated that I required evidence as to the process for decision-making which had been adopted in this case. The applicant has therefore been aware of the potential problem in this area.

11                  In the circumstances, I am inclined to the view that the continued existence of the Wiri No 2 claim is more of a hindrance than a help to the prosecution of such genuine claims as the claim group may have, however it may be constituted. I understand that concern about its dismissal arises not so much from any desire to take forward the claim in the form in which it is presently constituted or would be constituted pursuant to the proposed amendment, but from the perception that negotiating rights associated with the existing registered claim may be lost.

12                  The applicants may file a new application, but it may be some time before it is registered and new negotiating rights acquired. However, given that the applicant does not wish to proceed with the claim as originally constituted, or, indeed, in any clearly identifiable form as at the present time, to allow the proceedings to continue on foot would be, in effect, to permit an abuse of process. In those circumstances I am not willing to extend time for compliance with the order made on 6 October 2005.

13                  An application for leave to appeal from that decision has been made. In the circumstances, I am inclined to grant such leave.

Associate:

Dated: 18 July 2006