FEDERAL COURT OF AUSTRALIA

Atkinson on behalf of the Gunai/Kurnai People v State of Victoria (No 2) [2010] FCA 905

THE COURT ORDERS THAT:

1.                  The application by Mr David James Baldwin to be made a respondent to this proceeding pursuant to s 84 of the Native Title Act 1993 (Cth) is 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.

REASONS FOR JUDGMENT

1                     Before the Court is an application under s 84(5) of the Native Title Act 1993 (Cth) by David James Baldwin to be joined as a respondent to this application for a determination of native title.

2                     Section 84(5) provides that:

(5)  The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

3                     Mr Baldwin claims an interest as a primary producer and holder of a water frontage licence, no 1601040, on the Mitchell River. 

4                     The applicant for the joinder was given notice of the hearing today and advised that if it wanted to advance its claim it should appear and address argument to the Court. It has not appeared. Order 35A Rule 2 (f) of the Federal Court Rules provide that:

(1)   For this Order, an applicant is in default if the applicant:

 (f) fails to prosecute the proceeding with due diligence.

5                     In the circumstances, the failure to appear amounts to a default within the meaning of this rule. Order 35A Rule 3 of the Federal Court Rules then provides that:

 (1)   If an applicant is in default, the Court may order that:

(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant;

6                     By reason of this non-appearance the application for joinder is dismissed.

7                     A further basis for such an order is that investigations have revealed that his interest is not within the area of the Gunai/Kurnai #2 application.  Inquiries from the Department of Sustainability and Environment indicate that Mr Baldwin holds a grazing licence within the area of Gunai/Kurnai #1.  This is not, and could not be, the basis for the current application.

Associate:

Dated:         16 August 2010