FEDERAL COURT OF AUSTRALIA
Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1550
ORDERS
BASIL SUMNER (and others named in the Schedule) (Ngarrindjeri Native Title Claim Part A) Applicant | ||
AND: | STATE OF SOUTH AUSTRALIA (and others named in the Schedule) Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Ms Laura Agius and Mr Peter Rigney be removed from the persons who constitute the Applicant and that from now on the Applicant comprise the remaining persons listed as the current applicants.
2. The order sought by paragraph 2 of the interlocutory application lodged on 30 November 2017 is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
1 I am dealing with an interlocutory application concerning the parties to the proceedings presently known as the Ngarrindjeri Part A Native Title Application and concerning its future designation.
2 Since the proceedings were commenced in 1998, some of the persons constituting the Applicant have died. On 14 September 2016 the Court made orders pursuant to s 66B(2) of the Native Title Act 1993 (Cth) (the NT Act) that the 20 persons who now comprise the Applicant replace the then current applicants. These 20 persons have continued to comprise the Applicant to the present time.
3 The application for determination of the native title in the area referred to as Ngarrindjeri Part A is now listed for a consent determination later this week, on 14 December 2017. On 6 December 2017, the Applicants filed an interlocutory application seeking two orders. First, that Mr Peter Rigney and Ms Laura Agius be removed from the persons constituting the Applicant and, secondly, that the proceedings be given the designation “Mathew Rigney and Others v State of South Australia and Others”.
4 The first order is sought to give effect to a resolution passed by the Ngarrindjeri Native Title Claim Group at a meeting held on 9 November 2017. That resolution was:
In SAD6027/1998, all persons acting as applicants who are deceased, namely Laura Agius, or who are in seriously poor health, namely Mr Peter Rigney, are no longer to be applicants for the application.
5 Section 66B(1)(a) of the NT Act provides that one or more members of a native title group may apply for an order that certain members of the group replace the current applicant on the grounds that persons have died or become incapacitated. The Applicants seek the first order pursuant to that provision. The affidavit of Mr Darrell Sumner made on 30 November 2017 indicates that Ms Laura Agius is deceased and that Mr Peter Rigney is in seriously poor health. It also indicates that the resolution of the native title group on 9 November 2017 was passed at a properly constituted meeting of the Ngarrindjeri Native Title Claim Group.
6 I am satisfied that it is appropriate to make the first order, and will make it. The effect of that order is that Mr Basil Sumner will become the lead Applicant.
7 The Applicants seek the second order as a means of honouring the late Mathew Rigney who died in 2011. He was the first chairperson of the Ngarrindjeri Native Title Management Committee, a highly respected member of the Ngarrindjeri and he worked actively to progress the native title claim. It is understandable that the Applicants wish to honour him. Mr Mathew Rigney was one of eight persons who were removed from the persons comprising the Applicant in the proceedings by the Court’s order on 14 September 2016.
8 It is common for the Court to give native title proceedings a designation. The Court has a discretion to do that arising from the provisions in rr 2.13 and 34.130 of the Federal Court Rules 2011 (Cth). Generally, the designation which the Court has given has been a geographical name or a name referring in some way to the claim group. The present proceedings are an illustration of the Court’s practice in that respect as they have been known as the Ngarrindjeri Native Title Claim. Since 27 July 2017, they have been known as Ngarrindjeri Part A and Ngarrindjeri Part B.
9 Although the Court is sympathetic to the Applicant’s wish to honour the late Mr Mathew Rigney, it is not appropriate to do so in the manner they propose. First, the proceedings have now been known for a very long period as the Ngarrindjeri Native Title Claim, and there is the potential for confusion if there is a late change in the designation.
10 Secondly, the proposed designation would imply that Mr Mathew Rigney continues to be a member of the current Applicant group. Because of his death, it is not possible for Mr Mathew Rigney to constitute the Applicant. Ordinarily, the persons constituting an applicant in native title proceedings, as indeed in other proceedings in the Court, must be live persons. There are some exceptions to this. See, for example, Lennon v South Australia [2010] FCA 743; (2010) 217 FCR 438 and I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215. However, the present case is not one of those kinds. That being so, the use of the designation proposed by the Applicant has the potential to be misleading.
11 Thirdly, the designation proposed by the Applicant is of a different kind from those used in relation to other native title applications.
12 In those circumstances, although the Court is sympathetic to the Applicant’s wish to honour the late Mr Mathew Rigney, it is not appropriate to make an order altering the designation currently given to the proceedings. Accordingly, the order sought by paragraph 2 of the interlocutory application lodged on 6 December 2017 is refused.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. |
SAD 6027 of 1998
Applicant: DARRELL PHILLIP SUMNER
Applicant: LUKE TREVORROW
Applicant: DARYLE RIGNEY
Applicant: GRANT RIGNEY
Applicant: LAURIE RANKINE JNR
Applicant: EUNICE ASTON
Applicant: RITA LINDSAY JNR
Applicant: MARSHALL CARTER
Applicant: MAJOR SUMNER
Applicant: DAVID CROMPTON
Applicant: OWEN LOVE
Applicant: GORDON RIGNEY JNR
Applicant: LEWIS RIGNEY
Applicant: JORDAN SUMNER
Applicant: CYRIL TREVORROW
Applicant: DONALD ROBERTS
Respondent: SOUTH AUSTRALIAN RECREATIONAL FISHING ADVISORY COUNCIL INC (T/AS RECFISH SA)
Respondent: SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC
Respondent: ALEXANDRINA COUNCIL
Respondent: RURAL CITY OF MURRAY BRIDGE
Respondent: DISTRICT COUNCIL OF YANKALILLA
Respondent: CITY OF VICTOR HARBOR
Respondent: COORONG DISTRICT COUNCIL
Respondent: CHRISTOPHER DAVID BONSOR
Respondent: JANE BONSOR
Respondent: BRENTON LUSH FAMILY TRUST
Respondent: PATRICIA ANN BRINKWORTH
Respondent: THOMAS KENNETH BRINKWORTH
Respondent: CAPARRA PTY LTD
Respondent: NORMAN HOWARD CHELLEW
Respondent: GREGORY JAMES DAVIS
Respondent: IAN JAMES DAVIS
Respondent: RHONDA JUNE DAVIS
Respondent: CHERYL ANNE DOECKE
Respondent: COLLEEN ELIZABETH DOECKE
Respondent: WARREN NOEL DOECKE
Respondent: ALLAN IVAN FIEGERT
Respondent: DARYL WAYNE FRAHN
Respondent: CONSTANCE ETHEL FRASER
Respondent: WILLIAM GEOFFREY FRASER
Respondent: CAROLE LYNNE GREGOR
Respondent: KENNETH ALAN GREGOR
Respondent: EDWARD JOHN GRIVELL
Respondent: MARGARET EVA GRIVELL
Respondent: GUMBURRA PARK PTY LTD
Respondent: DAVID MARK HERRMANN
Respondent: JCWS HOLDINGS PTY LTD
Respondent: DAVID ANDREW KLEINIG
Respondent: BENANN PTY LTD
Respondent: PAUL BARTLETT
Respondent: KYM BRADLEY BARTLETT
Respondent: BEVERLEY KAYE BARTLETT
Respondent: BALAGUP PTY LTD
Respondent: MAUREEN JOAN ALTMANN
Respondent: KAREN MARGARET ALTMANN
Respondent: JOHN COLIN ALTMANN
Respondent: DAVID JOHN ALTMANN
Respondent: MERVYN H MARWOOD
Respondent: KENNETH MAX LUTZE
Respondent: JENNIFER MARIE LUTZE
Respondent: GAVIN SHAYNE LUTZE
Respondent: KOOLAH PROPRIETORS PTY LTD
Respondent: LILKA PTY LTD
Respondent: DEANNA BARBARA LUTZE
Respondent: ROBYN LENNOX MAUL
Respondent: TREVOR CHARLES MAUL
Respondent: GRANT TERENCE MCANANEY
Respondent: JOHN WILLIAM MCANANEY
Respondent: JANET MARY MCFARLANE
Respondent: CHRISTOPHER PAUL MICKAN
Respondent: SANDRA CLAIRE NASH
Respondent: WILLIAM PATRICK NASH
Respondent: GLORIA JUNE NEINDORF
Respondent: LAURENCE JOHN OLIVER
Respondent: LINDSAY WILLIAM PARKER
Respondent: JOANNE L PFEIFFER
Respondent: JOYCE ELFRIEDA POPE
Respondent: MURRAY CHARLES POPE
Respondent: ROMA DOWNS PASTORAL CO PTY LTD
Respondent: JASON SCHOFIELD
Respondent: JOANNE ROBYN SCHULZ
Respondent: RICKY STEPHEN SCHULZ
Respondent: KEITH LOCKE SCOBIE
Respondent: MARK STEVEN SCOBIE
Respondent: NEVILLE WAYNE STOPP
Respondent: SUNRISE DAIRIES PTY LTD
Respondent: TAUWITCHERE PTY LTD
Respondent: CATHERINE SUSAN THOMAS
Respondent: LEWIS KINGSLEY THOMAS
Respondent: PETER THORLEY
Respondent: SHIRLIE THORLEY
Respondent: RAELENE IVY THORPE
Respondent: TREVOR STEWART THORPE
Respondent: SPENCER MORTON TWELFTREE
Respondent: WILLIAM STEPHEN VARCOE
Respondent: GRAEME COLIN VERRALL
Respondent: HELEN ANN WALTER
Respondent: VICTOR LAWRENCE WALTER
Respondent: WELLINGTON LODGE PTY LTD
Respondent: DONALD REX SEELIGER
Respondent: TIMOTHY JAMES SEELIGER
Respondent: DEBBIE SHARAM
Respondent: SMART DAIRY TRUST
Respondent: BRIAN GEOFFREY STOPP
Respondent: GORDON WARREN STOPP
Respondent: WEST CREEK PTY LTD
Respondent: BARRY WESTLEY
Respondent: PATRICIA LEA WESTLEY
Respondent: WILLOW CREEK PROGRESS ASSOCIATION INC
Respondent: GRAHAM WILLIAM YELLAND
Respondent: PETER RUSSELL WILSON
Respondent: KENNETH ANDREWS
Respondent: ERNEST JAMES ALLEN
Respondent: JOHN FRANKLIN ASHBY
Respondent: JOHN MAXWELL ATKINSON
Respondent: ROBERT JOHN BUTSON
Respondent: RODNEY STEVEN JAMES AYRES
Respondent: PETER BARWICK
Respondent: TIMOTHY JOHN AYRES
Respondent: BA & CF TEDHAM & CO
Respondent: IAN HARRY BACKLER
Respondent: T W BAKER
Respondent: MICHAEL BALESTRIN
Respondent: BRONTE BAMPTON
Respondent: DOROTHY BARWICK
Respondent: JENNIFER BARWICK
Respondent: RUSSELL EDWIN BOORD
Respondent: LINDSAY DENE BOTT
Respondent: ROBERT JOHN BOWD
Respondent: JOHN BOZANIC
Respondent: MERVYN DOUGLAS BRAITHWAITE
Respondent: ROBERT STANELY BROOKS
Respondent: DENNIS WAYNE BUCKINGHAM
Respondent: BARTHOLOMEW BRETT BUTSON
Respondent: R L AYRES
Respondent: MERVYN JOHN CAMP
Respondent: ANTHONY PAUL DAWSON
Respondent: LIONEL ALLAN CARRISON
Respondent: PETER MELVILLE CARRISON
Respondent: D K CAWTHORNE
Respondent: PAUL CAWTHORNE
Respondent: BRUCE E CHAMBERS
Respondent: JARROD B CHAMBERS
Respondent: LEIGH CHAMBERS
Respondent: ROBERT ASHLY CHAMBERS
Respondent: TIM CHAPMAN
Respondent: PAUL ALEXANDER CLAUGHTON
Respondent: JOHN COLLINSON
Respondent: DONALD GREGORY COOK
Respondent: WALTER PHILIP COOPER
Respondent: JAMES C COPE
Respondent: GEOFFREY RUSSELL CUMMINGS
Respondent: ROGER M CUTTING
Respondent: JEFFREY JOHN DALE
Respondent: JOHN CARRISON
Respondent: RODERICK DELAN DENNIS
Respondent: SHIRLEY J GALPIN
Respondent: RUDOLF WILHELMUS DUURLAND
Respondent: CRAIG NEIL EDWARDS
Respondent: TREVOR NORMAN EDWARDS
Respondent: J ELLIS
Respondent: DAVID ENGE
Respondent: BRUNO FABRIS
Respondent: FRANK FABRIS
Respondent: GAETANO FABRIS
Respondent: MARIO FABRIS
Respondent: DONALD GEORGE FEAST
Respondent: EDWARD MAXWELL FEAST
Respondent: JOHN C FEAST
Respondent: PAUL WILLIAM FEAST
Respondent: DEBRA LEA FERGUSON
Respondent: DAVID JOHN FOSTER
Respondent: EDWIN TREVOR GALE
Respondent: ALBERTO GALLI
Respondent: LUCIANO GALLI
Respondent: SUSAN MARGARET DICKINSON
Respondent: KATHY GRANY
Respondent: JAMES WILLIAM GODDEN
Respondent: TRENT GREGORY
Respondent: H STANKE & SONS PTY LTD
Respondent: KENNETH GEORGE HAINES
Respondent: DAVID WILLIAM HALL
Respondent: LEICESTER EDWARD HAINES
Respondent: ROBERT JOHN HARDING
Respondent: GRAHAM FRANK HARROWFIELD
Respondent: BERNARD PAUL HENDERSON
Respondent: DARRYL HERA-SINGH
Respondent: GARRY IAN HERA-SINGH
Respondent: JEFFREY HERA-SINGH
Respondent: PETER HICKMAN
Respondent: GLENDAN DARYL HILL
Respondent: WAYNE JEFFREY GALPIN
Respondent: ANDREW GEERING
Respondent: DAVID FARADAY GILL
Respondent: SHANNON MAUREEN GILL
Respondent: LOVRE A GOBIN
Respondent: ARCHILLE GRANZIERA
Respondent: S B HINGE
Respondent: DARREN JOHN HOAD
Respondent: TIMOTHY SCOTT HOAD
Respondent: RICHARD W HOWARD
Respondent: BARRY J HURRELL
Respondent: HUBERT BRIAN HURRELL
Respondent: VALDIS IEVINS
Respondent: JIMMY JOHNSON
Respondent: BRIAN D JONES
Respondent: DAVID JOHN KENNEDY
Respondent: KRIKOR KESSEGIAN
Respondent: BRIAN EDWARD KLINGBERG
Respondent: DAVID HALL LANGDON
Respondent: BRYAN RICHARD LAWRIE
Respondent: LEONARD GLENN LE CORNU
Respondent: CYNTHIA A LEECH
Respondent: MICHAEL ARTHUR LEECH
Respondent: MAURICE KILSBY LEGGETT
Respondent: GORDON WILLIAM LEWIS
Respondent: PHILLIP JOHN LEWIS
Respondent: RON J LEWIS
Respondent: MARK KEITH MOODY
Respondent: SHANNON MORAN
Respondent: GRAHAM MILSTEAD
Respondent: COLIN HUGH MILSTEAD
Respondent: MICHAEL JOHN MCQUADE
Respondent: LEN R MCQUADE
Respondent: RODERICK PETER MCINTYRE
Respondent: JOHN EDWARD MCGOVERN
Respondent: PETER JOSEPH MARTIN
Respondent: PAUL MANTHORPE
Respondent: BARRIE JOHN MANSER
Respondent: SIMON MANNERS
Respondent: KYM BRYAN MALLYON
Respondent: TONY FRANC LUKIN
Respondent: WARREN E LUDWIG
Respondent: GRAHAM C LUCAS
Respondent: RODGER COLIN LONG
Respondent: DAVID MILLER
Respondent: ANN LUKIN
Respondent: RAYMOND THOMAS MODRA
Respondent: MAX POLACCO
Respondent: GARY R PETERS
Respondent: VICTOR GRANT PERRYMAN
Respondent: SHARON LEE PERRYMAN
Respondent: JUNE PERRYMAN
Respondent: IAN MAXWELL PERRYMAN
Respondent: ROBERT TYRER PENNINGTON
Respondent: DREW M PEGLER
Respondent: BRENTON LEIGH PATTEN
Respondent: ALEXANDER PATTEN
Respondent: GEORGE OSIS
Respondent: DARREN CRAIG O'HALLORAN
Respondent: ADAM DAVID OLDS
Respondent: HAYDN JOHN O'BRIEN
Respondent: G R NILSSON
Respondent: DONALD MARK NATTRASS
Respondent: MULLAN FISHERIES
Respondent: STEPHEN MORIARTY
Respondent: TERRY J MORAN
Respondent: LESLIE A POLKINGHORNE
Respondent: ROBERT CHARLES MORGAN
Respondent: BARRY POWER
Respondent: STAN PRIDDLE
Respondent: JENNIFER M PURTELL
Respondent: JOEL ROBERT REDMAN
Respondent: KIM A REDMAN
Respondent: KYM REDMAN
Respondent: IAN ROBERT REGNIER
Respondent: MARTIN RESNAIS
Respondent: CHRISTOPHER MILTON RICHARD
Respondent: SHANE JOHN RICHARDS
Respondent: BENVENUTO ROBERT RIGONI
Respondent: JAMES DUNCAN RITCHIE
Respondent: WILLIAM PERCY RITTER
Respondent: PETER STUART ROACH
Respondent: ROBINSON FAMILY TRUST
Respondent: MARK JAMES ROTHALL
Respondent: RONALD PETER ROWE
Respondent: CHRISTOPHER JOHN ROYANS
Respondent: JOSIP SANTIC
Respondent: STEPHEN JOHN SCHILD
Respondent: SEAFOOD COUNCIL SA LTD
Respondent: ANNE ELIZABETH TAPLEY
Respondent: IAN EDWARD TAYLOR
Respondent: GRAHAM MARK TAPLEY
Respondent: DAVID K TALBOT
Respondent: GARY WILLIAM STEELE
Respondent: NEVILLE JAMES STARK
Respondent: ERIC WILLIAM STACEY
Respondent: RENE JOHN SPRUYT
Respondent: SAVVAS SPIRIDIS
Respondent: DARYL MARK SPENCER
Respondent: TREVOR LESLIE SNEATH
Respondent: GEOFFREY PHILIP SNEATH
Respondent: RODNEY SMITH
Respondent: JONNY IAN SMITH
Respondent: EDWARD T SMITH
Respondent: KIM B SKEER
Respondent: BRIAN SKEER
Respondent: TONY JOHN SHORT
Respondent: DAVID SHERIDAN
Respondent: WILLIAM ARTHUR SELBY
Respondent: JOHN THEAKSTONE
Respondent: BRENTON E TYRRELL
Respondent: MICHAEL ALAN WILSON
Respondent: GRAEME BARRY WILSON
Respondent: JAMES PATRICK WILLIS
Respondent: MATTHEW ROY WILLIAMS
Respondent: MICHAEL H WILDE
Respondent: ALBERT THOMAS WHITTLE
Respondent: SCOTT WEAVER
Respondent: GREGORY WARD
Respondent: PETER EDWARD WALTERS
Respondent: GRAHAM LESLIE WALDEN
Respondent: JOHN WAKELIN
Respondent: JEFFERY PAUL WAIT
Respondent: GREGORY BRUCE VON STANKE
Respondent: ROBERT J VILLIS
Respondent: HENRY RICHARD WESTLAKE
Respondent: LANCE LEON TYLEY
Respondent: BRUCE WILLIAM TURNER
Respondent: TELSTRA CORPORATION LIMITED
Respondent: KATHERINE ANN KLEINIG
Respondent: ROBERT JOHN NEINDORF
Respondent: MERVYN HENRY MARWOOD
Respondent: WILDCATCH FISHERIES SA INC
Respondent: COMMONWEALTH OF AUSTRALIA
Respondent: SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES)
