FEDERAL COURT OF AUSTRALIA

Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales (No 2) [2010] FCA 1477

THE COURT ORDERS THAT:

1.    The notice of motion filed 17 November be dismissed.

2.    Reserve the costs of the motion filed 17 November 2010.

3.    In respect of the orders made on 1 October 2010, otherwise order pursuant to Order 36 Rule 6 of the Federal Court Rules that the date on which the order is entered not be the date on which the order was made.

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.

THE COURT ORDERS THAT:

1.    The notice of motion filed 17 November be dismissed.

2.    Reserve the costs of the motion filed 17 November 2010.

3.    In respect of the orders made on 1 October 2010, otherwise order pursuant to Order 36 Rule 6 of the Federal Court Rules that the date on which the order is entered not be the date on which the order was made.

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    These are two notices of motion seeking to vary orders made on 1 October 2010. The orders of 1 October 2010 required the applicants to file and serve an amended native title determination application and all material on which they sought to rely in relation to the preliminary question (as provided for in orders made by Moore J on 25 July 2008) by 29 October 2010, failing which the proceedings would stand dismissed without further order.

2    It seems to be common ground that the applicants did not comply with the orders made on 1 October 2010. I also draw that inference in circumstances where the applicants have advised me today that they wish to file two further folders of documents as well as the amended native title determination application. Accordingly, the current status of these proceedings is that they stand dismissed pursuant to order 2 of the orders made on 1 October 2010.

3    The notices of motion seek a variation of those orders, in effect, extending the time for the filing and service of the material to 30 April 2011. Counsel for the applicants today advised that the applicants seek an extension of time to a date no earlier than the close of business tomorrow and no later than 18 March 2011.

4    The notices of motion are supported by three affidavits of Neville Williams sworn 17 November 2010, 29 October 2010 and 24 March 2010. The affidavit of 24 March 2010 was originally read in support of the applicant’s position in respect of the Minister for Lands notice of motion filed on 26 February 2010, which ultimately led to the making of the self-executing orders of 1 October 2010.

5    The difficulty for the applicants on the notices of motion is that the proceedings currently stand dismissed. The applicants come before the Court seeking an exercise of discretion in their favour to extend the time for compliance with order 1, the effect of which would be to reinstate the proceedings. However, it is apparent that while the applicants did file and serve six folders of primary material on 29 October 2010, they have come before the Court today in circumstances where there is, at least, two folders of further material sought to be relied upon as well as the amended native title application. Counsel for the applicants is instructed that this material is all the material on which the applicants seek to rely and that the two folders (which are not in evidence before me) contain an affidavit, as required by the orders of 1 October 2010, stating that the material comprises all the material on which the applicants seek to rely in relation to the preliminary question.

6    As far as I can ascertain from the evidence which has been put before me (and there appears to be no dispute about this) the two further folders of material and the amended native title application have not been served on any of the other parties to the proceedings. Accordingly, those parties have not had any opportunity to consider that material, their position on the notices of motion having regard to that material, or whether or not the material meets the description in the orders. Moreover, there is at least some doubt that the material is all of the material on which the applicants seek to rely as evidence having regard to the affidavit of Mr Williams of 17 November 2010 which refers to an intention to file a further single folder of evidence in support of the claim. The affidavit also describes an intention to obtain a further estimated 10 witness statements in addition to those already filed and a desire to refer to certain material in the anthropologist’s prima facie report in the context of preparing the further witness statements.

7    It seems to me that if a party comes before the Court seeking an exercise of discretion in their favour of the type sought by the applicants in this case then there are certain fundamental requirements of fairness to the other parties that must be taken into account. At the least the other parties must be served with all of the material which is said by the applicants to fulfil the description, if not the timing requirements, of the orders of 1 October 2010. The other parties must be given an adequate opportunity to consider that material in order to formulate their own position in response to the application to vary the orders. Further, a person in the position of the applicants must be able to inform me without any ambiguity whether that material responding to the orders is now complete or not. It is clear that the first of these requirements has not been satisfied in this case and I have some doubt, as I have said, as to whether the material is truly complete.

8    The notices of motion filed on 17 November 2010 at best are premature. There cannot be a favourable exercise of discretion in favour of the applicants in the circumstances which I have described.

9    As I have attempted to convey to the applicants’ counsel, there is an obvious question of the resources and capacities of the applicants in circumstances where they have not received funding to bring these proceedings to completion. Ultimately, it is a matter for the applicants where they choose to apply the resources which are available to them. The applicants cannot be prevented from filing and serving other notices of motion in these proceedings, the effect of which (if granted) would be to reinstate these proceedings. But if they choose to do so, it should be clear to the applicants that there must be an explanation provided as to why the orders made on 1 October 2010 were not complied with, as well as satisfaction of the basic requirements of fairness to the other parties by giving them an adequate opportunity to consider all of the material said to respond to the substantive requirements of the orders. It would also be necessary for the applicants to be able to advise the Court whether the material was now in fact complete and, if it was not, a clear explanation of what further material might be required. None of those requirements have been met today.

10    Alternatively, the applicants could choose to focus their resources on the collation of the material in substance on which they wish to rely and the commencement of fresh proceedings when that material is ready. That, however, is a matter for the applicants.

11    I am satisfied in the circumstances to which I have referred that there can be no exercise of discretion today in favour of the applicants in respect of their notices of motion filed 17 November 2010. In those circumstances, it is not appropriate that the notices of motion be adjourned because there is no indication as to when the notices of motion might be ready for determination. It seems to me that it is necessary that both notices of motion be dismissed and I so order.

Associate:

Dated:    17 January 2011