Federal Court of Australia

Hoolihan on behalf of the Gugu Badhun People #3 and State Minister for the State of Queensland (No 2) [2023] FCA 1589

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 5 December 2022 by Mr Lawrence Kerr be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER ACJ:

1    Before the Court is an interlocutory application filed on 5 December 2022 by Mr Lawrence Kerr (Mr Kerr) seeking to be joined as a respondent to QUD 777 of 2019 Ernest Michael Hoolihan & Ors on behalf of the Gugu Badhun People #3. The Native Title Applicant in QUD 777 of 2019 opposed the interlocutory application. Mr Kerr specifically sought the following orders:

1.    that Gungalgunnu/Gunglinguns apical decendent Lawrence Flinders Kerr. be a joiner to the proceeding as sovereign nation Gungalgunnu/Gunglingus People, to speak for country in relation to land and waters, that through continuity and modern adoptions, give rich knowlegde, that will support the ongoing enjoyment, and practice of culture, customs, spitituality, in sharing with modern adoption as a untied social Australia.

2.    In support of the sovereign nation Gunglinguns/Gungalgunnu, and as a Estate of Gugu Badhunun People Country, and seeking justice for this interlocutory Order to join the proceeding in protecting the intregity of Gunglinguns/Gungalgunnu sovereignity, the Court may seek its own Orders to the adopted Estate of Gugu Badhun Country. If factural evidence to Gunglinguns/Gungalgunnu estate was adopted, would this evidence, give support as a Gungalgunnu/Gunglinguns People, We may have the great percentage of rights and interests rather than Gugu Badhun People #3 application..

3.     Such further or orders or directions as the Court deem appropriate.

(errors in original)

Background

2    By Native Title Determination Application (Form 1) filed on 19 December 2019, the Native Title Applicant, being Ernest Michael Hoolihan, Harry Gertz, Narda Kennedy, Hazel Illin and Elsie Thompson, applied for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth).

3    Materially, the Form 1 described the claim area the subject of these proceedings in Attachment B as:

Commencing at intersection of the western boundary of the Upper Burdekin River sub catchment area (Sub Number 1201) and the north western boundary of Lot 575 on Plan PH219 and extending generally northerly along the western boundary of that sub catchment area to its intersection with the northern boundary of the Gregory Developmental Road reserve, also being the southern boundary of the external boundary of the native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); then generally easterly and generally south easterly along the northern boundary of the Gregory Developmental Road reserve to its intersection with the centreline of the Clarke River; then generally south westerly along the centreline of that river to its intersection with the northern boundary of the external boundary of the native title determination QUD80/2005 Gudjala People (QCD2014/006), being a line joining Longitude 145.464464° East, Latitude 19.397699° South and Longitude 145.238141° East, Latitude 19.315069° South; then generally north westerly and generally westerly along the northern external boundary of that determination to its intersection with the western boundary of the Upper Burdekin River sub catchment area, then generally northerly along the western boundary of that sub catchment area back to the commencement point.

4    This application specifically excludes all land and waters subject to:

    Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002)

    Native title determination QUD80/2005 Gudjala People (QCD2014/006)

5    The claim area is located between previous determination areas in Gugu Badhun #2 claim (QCD2012/002) and Gudjala People Core Country Claims #1 and #2 (QCD2014/006 and QCD2014/007).

6    The notification period under s 66 of the Native Title Act was from 3 June 2020 to 2 September 2020. During this period Mr Kerr filed a Notice of Intention to Become a Party to an Application (Form 5), and joined the proceedings as a respondent.

7    On 16 June 2021 the Native Title Applicant filed an interlocutory application to remove Mr Kerr as a party from the Gugu Badhun #3 claim. I delivered Judgment in Hoolihan on behalf of the Gugu Badhun People #3 v State of Queensland [2022] FCA 965, and ordered that:

1.    Pursuant to sections 84(8) and 84(9)(b) of the Native Title Act 1993 (Cth), Mr Lawrence Flinders Kerr cease to be a respondent party to the Gugu Badhun Native Title Claim (QUD777/2019).

8    Mr Kerr filed the present interlocutory application 87 days after delivery of that judgment on 5 December 2022. On the same date he filed an affidavit in support of the interlocutory application in which he deposed, inter alia, that:

    He was the Senior Elder of three apical Sovereign Countries, Gungalgunnu (Gunglinguns) Country or "Red Dress People", area; Pelican Range, Warrina Plains, Lake Lucy, Valley of Lagoons, Greenvale Station, and area surrounding, west, east, south portions.

    He had applied to North Queensland Land Council (NQLC) for assistance “for a land claim to area Gugu Badhun #3 QUD777/19 before the Court application, as Gungalgunnu People”.

9    He further deposed:

3.    Gungalgunnu apical Kitty, adopted name through colonal occupation, born Lake Lucy 1865, also my greatgrandmother Rose, born Lake Lucy 1800's. Gungalgunnu (Gunglinguns) Country described at (1).

4.     We Gungalgunnu People believe, We are a sovereign country, with supreme power and authority over lands and waters to our traditions of culture, customs, spirituality, that are different from any others, as sovereign Gungalgunnu (Gunglinguns) People.

5.    The above at (4) in 2022 Gungalgunnu peope still practice and enjoy, and pass down our traditional strong values of country for future Gungalgunnu children.

6.    In this adopted continuity, We Gungalgunnu (Gunglinguns), must be accepted as fact, through anthropologist evidence, and others who have by testimony for connection to other land claim.

7.    Gugu Badhun #2 determination have taken in the Gungalgunnu (gunglinguns) sovereign Country as part of Gugu Badhun call a part of their estate. How can One sovereign nation takw another estate (Gungalgunnu) and call it Gugu Badhun Country?

8.    Facts of modern adoption to Native Title as practiced today and as I discovered wheather correct or not. Anthropology, anthropologist make the findings, and lawyers decide wheather to argue, even if there is evidence that suggest otherwise.

9.     The argument for integral Form 1 application passing the registration Test, must apply to a review, in seeking the Gugu Badhun estate of the Gunglinguns or as We know it Gungalgunnu, however the handed down name came.

10.     The Guru Badhun #2 Determination testify Gunglinguns as their estate and being Gungalgunnu sovereignty, to Gugu Badhun estate, there must be considered two arguments, a Country Claim over Guru Badhun #3 or argue to be a joiner as a Respondent. Economic savings, Gugu Badhun People #2 and #3, recognise people's to their estate, namely Gunglinguns/Gungalgunnu sovereignty considered in an agreement to recognise and legally litigate mutural outcomes.

11.     As in good faith, I have on the 27 October 2022, put in an application for assistance to North Queensland Land Council/RNTBC a Land Claim over the Gugu Badhun #3 Area.

12.     In fairness to justice and possible discrimination of a Gungalgunnu Sovereignty that was adopted Estate of Gugu Badhun Country, it must be argued that the Guru Badhun adopted eatate, are by Native Title Act 1993 (cht) have rights and interests over lands and waters to the Gugu Badhun #3 application, moreso with factural tastimony to Gungalgunnu/Gunglinguns adopted estate.

13.    Numbered Documents testify Gungalgunnu/Gunglinguns connection

10    On 7 February 2023 I ordered Mr Kerr to provide evidence identifying when the evidence relied upon in support of his joinder became available to him. Mr Kerr’s affidavits filed on 10 March 2023 (but dated 28 February 2023) and 11 April 2023 indicate that Mr Kerr primarily relies upon long-held personal knowledge. Nothing in Mr Kerr’s affidavit material suggests that he relies upon evidence that was not available to him on 7 April 2022 when the Applicant’s interlocutory application for his removal was heard by the Court.

Summary of Submissions

11    Mr Kerr was self-represented and provided written and oral submissions. He submitted in summary as follows:

    He originally sought help or assistance from NQLC to assess a possible Gungalgunnu application on 21 October 2021.

    NQLC has not provided him with assistance despite repeated applications.

    Mr Kerr’s great-great grandmother will never know her traditional name.

    Kitty is his Nagaja adopted name.

    Gungalgunna “Ghost People” were custodians to the area of a large size, which took in plains, billabongs, river courses, sea views, lakes which exist today and exclusive knowledge of dream time.

    He provided maps where he believed the Gugu Badhun and Gungalgunnu claims should be positioned.

    There is very little information in the ethno-historical record about the names or location of Gugu Baghun local estate or residence groups within the research area.

    The ‘Red Dress People’ or ‘Gungalinguns’ were a Gugu Baghun local group who were said to live in the Pelican Range and on the western side of Greenvale Station.

    He tried to introduce the Gungalinguns people to NQLC before the determination.

    He and some others introduced themselves as Gungalgunna person.

    We must consider the persons who inhabited the claim area at the time of effective sovereignty, were members of one or more communal, normative, manburra societies.

    He provided a letter from Joann Boyd setting out cultural information.

12    The Native Title Applicant submitted in summary as follows:

    Mr Kerr’s joinder application was an abuse of process because it was an attempt to relitigate issues previously determined by the Court when adjudicating upon the applicant’s interlocutory application to remove Mr Kerr as a party.

    Re-litigation of a matter previously determined, as between the same parties and their privies, was a recognised category of abuse of process.

    The particular instance of oppression arising from Mr Kerr’s Joinder Application was that it was not based on new evidence.

    It was not beyond possibility that a party once removed from a native title proceeding could later be rejoined on the basis of new evidence (for example, where a party had purchased a new property interest which stood to be affected by a determination), provided that the interests of justice otherwise favoured joinder.

    The order removing Mr Kerr determined the issues then in dispute between him and the Applicant, and may only be varied upon a change of circumstances.

    None of the affidavit material relied upon by Mr Kerr justified a departure from the findings made by the Court in earlier proceedings for his removal.

    In the event the Court dismissed Mr Kerr’s interlocutory application, the Applicant sought an order under s 43 of the Federal Court of Australia Act 1976 (Cth) and s 85A Native Title Act 1993 (Cth) that Mr Kerr pay the Applicant’s costs of the interlocutory application on the basis that:

(a)     Mr Kerr’s failure to adduce the evidence he now relies upon in the earlier proceedings for his removal was unreasonable;

(b)     Mr Kerr is in breach of his obligations under Federal Court of Australia Act 1976 (Cth) ss.37M and 37N because his Joinder Application raises the same, or substantially similar, issues to those before the Court when the Applicant applied for his removal; and

(c)     to the extent the Court accepts the Applicant’s contention that Mr Kerr’s Joinder Application is an abuse of process, conduct of a party which is an abuse of process is unreasonable conduct within the meaning of s.85A(2) of the Native Title Act 1993 (Cth).

Relevant Evidence

Evidence of the Native Title Applicant

13    The Native Title applicant filed and relied upon the affidavit of Cheryl Ann Thomson, filed on 28 March 2023.

Cheryl Thomson

14    Ms Thomson is a solicitor employed by NQLC and solicitor on the record for the Native Title Applicant in this proceeding.

15    Annexed to her affidavit was a letter dated 27 March 2023 to Mr Kerr explaining the reasons for his removal as a respondent.

16    In that letter it explained the procedural history of the matter involving Mr Kerr.

17    The letter referred to the Judgment of 19 August 2022 at paragraph [54]:

I am not persuaded that Mr Kerr has sufficiently demonstrated an interest in the Gugu Badhun #3 claim area which may be affected by determination in these proceedings. Consequently, I am not satisfied that Mr Kerr has a tenable defensive claim to justify his continuing status as a respondent.

18    The affidavits in support assert native title interest in the Gugu Badhun #3 claim area that were, or should reasonably have been, known to you at the time of the hearing of the applicant’s interlocutory application for Mr Kerr’s removal on 7 April 2022.

19    The letter also stated to Mr Kerr that it will seek costs.

Evidence of Mr Kerr

20    Mr Kerr filed and relied on three affidavits which are as follows:

    Affidavit in Support of interlocutory application filed on 5 December 2022. Earlier in this judgment I summarised key evidence of Mr Kerr from that affidavit;

    Affidavit of Mr Lawrence Kerr filed on 13 March 2023; and

    Affidavit of Mr Lawrence Kerr filed on 12 April 2023.

Affidavit filed 13 March 2023

21    In his affidavit filed 13 March 2023 Mr Kerr relevantly deposed as follows:

1.     1, Lawrence Flinders Kerr 170 Mosman Street Charters Towers in the State of Queensland affirm: this affidavit is in support to become a joiner to Ernest Michael Hoolihan & Ors on Behalf of Gugu Badhun People #3 and the State of Queensland (QUD777/2019) native title application in the State of Queensland.

2.     I am Gungalgunnu, or as factural evidence Dl (Document One's (a)-(e) states.

3.     Document Dl 's, describes Gunglinguns "Ghoast People" and their Country.

4.     Factural evidence to "Gunglinguns" must have consideration as the Traditional Custodians, firstly to the Gugu Badhun #2 determination, by factural evidence in Dl attached. Gungalgunnu/Gunglinguns "Ghoast People" is not an estate of stated by anthropologist, but a sovereign culture of language, customs, lore's, spirituality. Practices. A sovereign oen standing Culture.

5.     Anthropologist in Research, must have known this, and more to the intregity to a Country Claim, especilly to their Connection Report. Legal's who's procedural process to argue, must file. Firstly submit truthful to National Native Title Tribunal (NNT'I).

6.     Gungalgunnu/Gunglinguns have our own, traditions of culture, customs, spirituality and enjoyment over land waters in the Guru Badhun #2 determination, and as not to be seen discrimminative against the first sovereign people's discribed in DI, evidence needs justice.

7.     Let us follow the evidence of trurh, the evidence from a member who calls themselves Gugu Badhun, describes the Country of the Gunglinguns "Red Dress People" as the same claim area as the now Gugu Badhun #2 claim area. We are known as the "Ghoast People".

8.     By this evidence, who are the first sovereign existance Gungalgunnu/Gunglinguns, or the sovereign nation from the far north as DI shows. We must also request factural documents of evidence be fonvarded to the Federal Court to verified for justice of a consent determination. Two states in Australia require factral evidebce, QLD, WA.

9.     How did I know of the Gugu Badhun history, I had knowledge of DI evidence ,We attempted a group of Gungalgunnu people attended a Gugu Badhun Meeting, to introduce ourselves as Guggalgunnu, and moreso the traditional custodians of Gugu Badhun #2, and evidence to the position of Gugu Badhun sovereignity, Far North as DI identifies, (fact).

10.     The Gugu Badhun reducted Connection Report has Confidential and Without Prejudice, dated 9-10 2021 as D4-D5-D6 testifies factural evidence. Solicitor Thomson for Gugu People #3 and Anthropologist who redacted the Connection Report, must give an explaination to the Court to the diffirent dates. And from the documents forwarded in this affidavit, the Court can decide to the validity in what is importance to Gungalgunnu Connection of Gugu Badhun #3 as first people's GB determination#2.

11.     Testomony of factural thruh: Gunglinguns known by a Far North Sovereignity Gugu-Badhun, was introduced by a Gunglinguns first custodains people, how then can these Gunglinguns people born to their Country, now call themselves Gugu Badhun ancestors?

12.     For the Australian Federal Court information, not as a Submison, but as truth to how Gungalgunnu rights and interests over Gugu Badhun #3 Claim may have rights and interestsas Gungalgunnu, simpley put, Gugu Budhun#2 was not contested, althought we tried to seek assistance from NQLC to show fruad by deception and other intents.

13.     The North Queens;and Land owned Connection Report about Gugu Badhun people's interests in unclaimed area of land to the south of Greenvale. Dr Pamella Faye McGrath, dated March 2020 (61-070) Reducted signed Acknoledgeed of Report 14 December 2021.

14.     This signed Acknowledged of Receipt 14 December 2021, has no Confidential nor Without Predjuice requirement, and again legal stipulation is required for my signature to to give myself a Copy of the Redaded Connection Report, D7 attached.

15.     As D4-D5-D6-D7 evidence clearly shows, out of the these dated documents, D7 is the Most evidence to my compliance in using Guru Badhun #3 Redacted Connection Report in Court.

16.     Dr Lopez Affidavit 9 December 2021 attached to a Letter from NQLC, and the Redacted Report dated 10 December 2021, D6 evidence.

17.     D7 is received and signed and returned 14 December 2021, and as we read top of letter, "Acknowledgement of Receipt" and in this only signed letter of the Gugu Badhun Pamela Faye McGrath, dated March 2020 (61-070) Redacted Connection Report, and owned by NQLC, there in no mention of Confidentiality nor Without Prejudice, anywhere to my signature. Again D4-D5-D6-D7 as evidence for the Court

18.     Should not the Dr Lopez Gugu Badhun #3 redacted connection report Affidavit and other material, which was Stamped by the Court, be sent to all other Parties who have interest to QUD777/19 before the Court.

19.     The Redacted Report was only given to myself.

20.     Another fact that requires investigation in the laws structure is, can the connection of GB #2 be used in the GB #3 Connection Report? To the other evidence of GB#3 connection interests, evidence from Dr McGrath shows there is not connection in the Research Area for GB People and D states it clearly.

21.     In answering to the Court's Orders of(a) and (b), to all of Dl's factual historical evidence and a member of Gugu Badhun, Gunglinguns were the first sovereign People's and the Court must not discriminate and favour my Joining GB#3 application before the Federal Court for Justice.

22.     Background attempts to assist in progressing Gungalgunnu application for a Land Claim over the GB#3 Area.

23.     27 October 2022, applied to NQLC Special Service to assist in a counter claim over GB#3, as first nation that was taken over with Intent by NQLC, Gertz and Hoolihan's, to which at a later date will reveal if need be.

24.     Finally, to the Matters I have revealed in this my affidavit, Gungalgunnu people need for any Gugu Badhun, who are littered in the Connection Report 2020 to the GB#3 claim to provide any evidence to the disprove or provide evidence of Connection as well as Traditional connection to GB#2 determination.

25.     Rights and Interests as Gungalgunnu and Gunglinguns first People's testified as an estate, and must have Native Tile Rights in lodging a counter claim and must be a Joiner (respondent) for justice. Testified evidence from Gugu Badhun 2020 Connection Report Must give sovereign Gunglinguns/Gungalgunnu nations a party in their own Rights and Interests over Gugu Badhun #3 Claim.

(errors in original)

Affidavit filed 12 April 2023

22    In his affidavit filed 12 April 2023 Mr Kerr relevantly deposed as follows:

1.    I Lawrence Flinders Kerr, swear that the information to my sworn statement, is to the best of my adult knowledge, to handed down understanding as a youth. I being a party to and witnessing to Gungalgunnu apical possessed language, culture and costoms through lore, and spirituality with all possessed rights and interes exclusively to Gunglinguns/Gungalgunn, apart from all other's, even the World.

2.     Who are the Gungalgunnu people, and where is their country, and when was it recorded from historical pre-colonisation of Europian's and other's to hand down?

3.     Myself and other family members attended at then Gugu Badhun meeting and Suzanne Gilmore solicitor was present, 2012?.

4.     At this community meeting, we wanted to introduce ourselves and formally inform that We were of the estate of Gugu Badhun name and give them a description to Gungalgunnu Country, meaning "Ghost People".

5.     At this meeting, we did not feel welcomed when the evidence showed to our rights and interests and exclusiveness, and the lawyer solicitor Gilmore remarked that we had to put it to the group and if they accept us, then we become Gugu Budhun People.

6.     The name Gungalgunnu "Ghost People", was handed down from great, great, great grannie Kitty Kerr and my great gramdmother Rose. We were aslo handed down our language, which is a dialect of the Warrongo language an Australian Language, a Marie branch of the Pama-Nyugan family, as adoption explains it, we call it the Murri language, and the last speaker was Alf Palmer Warungu Elder.

7.     The soveren uses of the Warrongo language are Warungu, (Guggalgunnu, Guru Badhun), and Gudjal (Gudjala) nation's.

8.     We being Gungalgunnu/Gunglinguns "Ghost People" without modern continuity, have and still speak, teach and write (from colonial adoption's) in assisting our rights and interests which we possess exclusively to no other no, not even the World

9.     Gugu Badhun People, if evidence is proven, have broken their continuity from Cointry and to rights and interests which is exclusive onlt to Gugu Badhun, meaning evidence from hostorical experts in the professional anthorpology field, and the Federal Court's experts to truth to their Connection Report.

10.     The Federal Court of Australia is aware of the Ggru Badhun Connection Report given to myself through the Court process, on the 10 May 2020 and a signed document by myself 14 May 2020, to the effect, and having no Without Prejudice or Confindential attachment to this signed document.

11.      I have knowledge that family apical's in the Gugu Badhun connection report, were deceived and especially the name Gugu Badhun (koko-putin) from far north near Yungaburra region near Atherton, Kitty Clarke and other's, who now call themselves Gugu Badhun oner Gungalgunnu/Gunglinguns estate as in the Gugu Badhun Connection Report.

12.     I believe I has made very serious allegations to serious Intent, which is in the Native Title Act 1993 (Cth) Criminal Conduct of Intentional Conduct, and I am in no knowledge to the Act, but have made the Federal Court aware to serious allegations that must be investigated, as the Court system not be a party. This intent as my evidence shows, maybe a intentional deception for gain, or other bevefits, using Gungalgunnu/Gunglinguns estate with the expert of the Court and Professional argueres, to deceive. (see A

13.     If then any litigaters wanting to litigate, I understand that the truth is now out there for anyone who can share with their interest, and comment to my affidavit, for whatever recourse one sees fit.

14.     I urge the Federal Court to make it's own Order's in seeking Justice and the truth, to the allegations of intentional deception. Mr Richard Hoolihan and members of Gugu Badhun applicant's, need to provide a sworn affidavit to what possessive right's, interest's that is exclusive to all other's and exen the World, as Justice Reeve's Order's, Malone/Jangga, Belyando/Clairmont application .

15.     Information to the Federal Court of Australia, process is important, because first approach is the Land Council for assistance.

16.     This I did on 27 October 21 Land Claim assistance, and have been ignored, but for what intent? Gungalgunnu and another assistance application same date. Document will be produced with the help of a Lawyer if NQLCAC gives assistance to the request's. NQLCAC only have to provide Legal assistance, but what is the intent not to do so?

17.     I know that, when I became a respondent in 2020, that the professional's had all the resources at their calling, while they may be afraid of evidence of Gungalgunnu's possessed rights and interests that Dr McGrath's Report was never presented as an argument for one of Gugu Badhun's estate that by being the first nation's people, must have possessed rights and interests also exclusive from any other's in the claim group.

18.    I will share Gungalguun rights and interests and exclusive from Gugu Badhunin the #3 Claim application that I was a party to and witnessed.

19.     I was a party and a witness to a strange and spiritual exclusive whatever.

20.     Myself, my sister and brother (Violet, Keith) were in the section we now call, the Montgomery Range, and there is a walking track west to east until the west side of the Clarke River is reached.

21.     To my awareness, the strange spiritual event occurred in the middle of the Montgomery Range, and moreso west.

22.     There is a Big Huge Long Rock and under this rock was a huge shrub and like a cave. The strange event had been witnessed by the three of us.

23.     This is to the best of my recollection but very memorable.

24.     I cannot recall what got our attention, but it might have been the cave first, then in the process, voices came from a hige shrub, to this we went to see who was talking.

Today there is only myself and my brother Keith, Voilet is nolonger with us, but we still talk about it and hand it down, to how we talked to the Gundnlu (emu), Snake(munda) and Kangaroo(gagagarra), and how we understood them.

25.     The western side to the Montgomery Range, there are old art the we witness and we may possibly can show, I tried to show Ur McGrath, Dr Lopez and Trish Holding, but they did not wish to see or assist the exclusive Gungalgnuun knowledge.

(errors in original)

Consideration

23    Mr Kerr seeks to be joined as a respondent to the proceeding, claiming that his joinder is as a Gunlingunns/Gungalgunnu person.

24    Immediately, however, I note that I delivered a judgment in this proceeding in 2022 whereby I ordered that Mr Kerr be removed from the proceeding, referable to his claim as a Gudjala person.

25    Section 84(5) of the Native Title Act prescribes the manner in which a person can be joined as a party to native title proceedings. It provides:

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.

26    The applicant to a joinder application has the onus of satisfying the Court of each of the elements in s 84(5): Forrest on behalf of the Kakarra Part A Native Title Claim Group v State of Western Australia [2023] FCA 529 at [14], Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [32], and Vea Vea on behalf of the Wadja People v State of Queensland [2020] FCA 405 at [16].

27    While usually the Court will first consider the question whether the person’s interests may be affected by a determination in the proceedings, I have previously specifically found that Mr Kerr had not demonstrated an interest in the Gugu Badhun #3 claim area which may be affected by a determination of the proceedings: Hoolihan on behalf of the Gugu Badhun People #3 v State of Queensland [2022] FCA 96 at [54].

28    Given that specific finding, even if Mr Kerr could now substantiate that he has a “new”, previously-untested, interest that may be affected by a determination in the substantive Gugu Badhun #3 proceedings, it follows that an appropriate way forward is for me to first consider whether it is in the interests of justice for Mr Kerr to be joined within the meaning of s 84(5) of the Native Title Act. In doing so, it is appropriate for me to assess whether Mr Kerr is now simply seeking to relitigate the previous removal proceedings, as the Native Title Applicant contends.

29    In particular, the Native Title Applicant refers to the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178. Relevantly in that case the Court said:

…A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v. Sheriff of Queensland (1895) QLJ 163, at p 165; Hutchinson v. Nominal Defendant (1972) 1 NSWLR 443, at p 447 ; Chanel Ltd. v. F. W. Woolworth & Co. Ltd. (1981) 1 WLR 485, at p 492; (1981) 1 A11 ER 745, at p 751. Of course, the changed circumstances must be established by evidence: Cutler v. Wandsworth Stadium Ltd. (1945) 1 A11 ER 103.

30    So, for example, in circumstances where an order is made ex parte on an interim basis, a party is generally at liberty to apply to have it set aside on the provision of further evidence supporting an order relieving the party from the effect of the interim order.

31    In my previous judgment, I noted that Mr Kerr had described the nature of his interest and the manner in which it may be affected by a Native Title Determination of the present application, in the following terms:

Reasons for respondent, 17 May 2019 Report of Anthropologist Dr McGrath was rejected by Gudjala people. Gudjala people’s Rights and Interests to the Area called The Clarke River Catchment process was not represented by legal representation. This neglect of representation of Rights and Interests to Culture and Customs of the Gudjala Nation, as well as legal Rights to Interests in this Clarke River Catchment was neglected or Other reasons for gain.

The Gudjala People believe Dr McGrath’s Report did not include all documents reported to her nor Express a View for Consistency to all Materials given for her report.

We, along with other Common Law Holders who can with consistency of factual documents, and the word is Consistency, show the Federal Court the Full Rights and Interests as well as Culture and Customs of Gudjala People to the Clarke River Catchment and surrounding Areas.

QLC, expressed that because of both groups may not have any Rights or Interests, that a Hard-line Boundary resolve the issue. NQLC along with Anthropologists did not explore Language, Customs, Culture, views of consistent fellow workers in this research, Dates of History and much more to the Clarke River and Maps especially.

If the Gudjala People had legal representation on the 17 May 2019, this neglect to the Clarke River Catchment may have had a different outcome. Gudjala’s rights and interests to the Clarke River Catchment may have broken the light of day to rights and interests and with the evidence would have challenged Dr McGrath’s report to the Clarke River Catchment and with the Maps, show that Hard-line Boundary favoured Gudjala.

The facts of Maps, Three documents and others as well as Leichardt 1845, a appose to 1861 facts and Watersheds, Water Catchments, Dividing Ranges have all have Consistency, which we Gudjala can prove that this did not occur in Dr McGrath’s Report.

We believe the Federal Court Needs to view said evidence and make sure that the Rights and Interests to Culture and Customs as Custodians are in true hands.

32    Mr Kerr further identified himself as an “Expert and Professional Keeper of Culture and Others in continuity” in his culture.

33    I found that Mr Kerr had not sufficiently demonstrated an interest in the Gugu Badhun #3 claim area which could be affected by a determination in those proceedings.

34    Turning to the evidence before me, it is difficult to identify any material on which Mr Kerr now seeks to rely which he has not previously relied on, or which would not have been available to him prior to his removal as a party.

35    As is plain from the present interlocutory application, Mr Kerr now seeks joinder on the basis of his membership of another Native Title group, being the Gungalgunnu/Gunglinguns People. However, reviewing his material presently before me it is plain that Mr Kerr has re-used material from earlier litigation in which the Native Title Applicant sought his removal, referable to his claims of interest as a Gudjala person.

36    First, Mr Kerr’s material (both evidence and submissions) includes substantial reliance on material adduced for the purposes of his earlier claimed interest as a Gudjala person. I note, for example, his reliance on:

    correspondence from NQLC to the “Gudjala People Negotiation Team” dated 23 May 2019;

    email correspondence of 10 June 2019 from Trish Holding of NQLC to persons including Mr Kerr relating to a Gudjala meeting; and

    the Gugu Badhun Connection Report prepared to progress the application for Native Title, which refers to the Gudjala People.

37    Second, and more specifically, there is significant duplication of material from the removal proceedings to Mr Kerr’s present joinder application. So, for example I note:

    In the body of his evidence, he continued to criticise the anthropological evidence of Dr Pamela McGrath, although in the Gungalgunnu/Gunglinguns joinder application by reference to his contentions concerning the interests of the Gungalgunnu/Gunglinguns People;

    He has used the same maps in both this proceeding and in the previous hearing where he faced an application for removal. I note in particular the maps on pp 49 and 50 of Mr Kerr’s affidavit filed 7 April 2022 in the earlier removal proceedings, which are the same as the maps on which he relies at pp 8 and 9 of his affidavit filed 13 March 2023 in respect of his Gungalgunnu/Gunglinguns joinder application;

    He relies on material referable to genealogy at p 55, 56 and 57 of his affidavit filed 7 April 2022 in the earlier removal proceedings, which is the same as the material at p 5, 6 and 7 of his affidavit filed 5 December 2022 in respect of his Gungalgunnu/Gunglinguns joinder application;

    He further relies on material referable to genealogy at p 13 of his affidavit filed 5 April 2022 in the earlier removal proceedings, which is the same as the material at p 8 of his affidavit filed 5 December 2022 in respect of his Gungalgunnu/Gunglinguns joinder application;

    He relies on material relating to the Tableland Yidinji & Ngadjon Jii Aboriginal Corporation at pp 8 and 9 of his affidavit filed 5 April 2022 in the earlier removal proceedings, which is the same as the material at pp 12 and 13 of his affidavit of 5 December 2022 in respect of his Gungalgunnu/Gunglinguns joinder application; and

    He relies on letters from NQLC relating to Dr McGrath’s report at pp 61, 62 and 63 of his affidavit filed 7 April 2022 in the earlier removal proceedings, which is the same as the material at pp 11, 13 and 15 of his affidavit of 13 March 2023 in respect of his Gungalgunnu/Gunglinguns joinder application.

38    Third, Mr Kerr relies on material which plainly antedates his present interlocutory application for joinder, such as the Gugu Badhun Connection Report, historical maps, historical correspondence. The only evidence of substance on which Mr Kerr relies which does not predate the removal proceedings is a letter from Joann Boyd dated 1 May 2023 which appears to set out her knowledge of Gunglingun country. Why this letter has only emerged at this point of the proceedings, and why Mr Kerr has only now taken the lead in seeking joinder as a Gunglingun person, is not explained.

39    Finally, it is plain that much of the evidence on which Mr Kerr relies in respect of his present application for joinder derives from his own long-standing, exclusive personal knowledge. I am satisfied that Mr Kerr would have had access to this knowledge, at the time of his removal as a party in 2022 (and indeed would have had access to it for many years before). So for example, I note:

    His genealogical evidence concerning his family background (although now he claims reference to Gungalgunnu/Gunglinguns rather than Gudjala);

    His evidence concerning the affidavit of Luis Lopez dated 9 December 2021 relating to connection in the Gugu Badhun #3;

    His evidence concerning culture, including dream time, lore and customs, particularly language; and

    His evidence of sacred sites.

40    I am not satisfied that Mr Kerr has adequately explained why, if he had an interest as a Gungalgunnu/Gunglinguns person, he sought joinder on the basis of that interest only after his removal from the proceedings as a Gudjala person. This is not a case such as was described by the High Court in Adam P Brown, which warrants reconsideration of earlier interlocutory orders removing Mr Kerr as a party to the proceedings. Indeed, returning to the language of s 84(5) of the Native Title Act, the interests of justice do not support joinder of Mr Kerr to these proceedings where it appears that Mr Kerr seeks to now relitigate his removal as a party to the Gugu Badun #3 claim by reframing his entitlement to be joined as Gungalgunnu/Gunglinguns.

COSTS

41    The Native Title Applicant seeks its costs pursuant to s 85A of the Native Title Act.

42    Pursuant to that section the Court can award costs in circumstances where satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding.

43    While I do not accept that it is in the interests of justice that Mr Kerr be joined to the proceeding, at the time of the hearing of this joinder application it was at least arguable that he had an interest which could be affected by a determination. On that basis, on balance I am not persuaded that Mr Kerr’s conduct was unreasonable within the meaning of s 85A(2) of the Native Title Act such as to warrant an order for costs against him

Associate:

Dated:    15 December 2023

SCHEDULE OF PARTIES