FEDERAL COURT OF AUSTRALIA Munn on behalf of the Gunggari People v State of Queensland [2002] FCA 1111 ROBERT JOHN MUNN ON BEHALF OF GUNGARI PEOPLE v STATE OF QUEENSLAND QG 6019 OF 1998 EMMETT J 28 AUGUST 2002 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG6019 OF 1998 BETWEEN: ROBERT JOHN MUNN ON BEHALF OF THE GUNGGARI PEOPLE APPLICANT AND: THE STATE OF QUEENSLAND RESPONDENT JUDGE: EMMETT DATE OF ORDER: 28 AUGUST 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. leave is granted to the applicant to amend the application in the form of the amended application as initialled by Emmett J; 2. all respondent parties, other than the State of Queensland and Telstra Corporation Limited, cease to be parties to the proceeding, pursuant to s 84(8) of the Native Title Act 1993 (Cth); 3. orders 1 and 2 be stayed up to and including 13 November 2002. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLANDDISTRICT REGISTRY QG6019 OF 1998 BETWEEN: ROBERT JOHN MUNN ON BEHALF OF THE GUNGGARI PEOPLE APPLICANT AND: THE STATE OF QUEENSLAND RESPONDENT JUDGE: EMMETT DATE: 28 AUGUST 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 I have before me an application by Mr Munn for leave to amend the application in accordance with the draft claimant applicant attached to an affidavit sworn by him on 23 August 2002. The effect of the application will be to excise all parcels of land from the application other than lots 2, 3, 4 and 5 in AP 5172. Those four lots are located in the town of Dunkeld. Mr Munn also seeks an order that all parties other than the State of Queensland and Telstra Corporation Limited cease to be a party to the proceeding pursuant to s 84(8) of the Native Title Act 1993 (Cth). 2 None of those orders is opposed by any of the parties other than the Kooma people, who have indicated that, having regard to the lateness with which the application was made, they are not in a position to indicate any consent to the proposed orders. It may be that, after due consideration, there will be no opposition from the Kooma people but, at present, they oppose the making of the orders. 3 There are two bases upon which the possible opposition is foreshadowed. The first is a concern as to the authority of Mr Munn to make the application on behalf of the Gunggari people. It may be that the Kooma people have no interest in that question in a direct sense although, from a pragmatic point of view, since there is an overlap between claims made on behalf of the Kooma people and claims made on behalf of Gunggari people, the Kooma people would want to be satisfied that, insofar as negotiations might take place in the future, those negotiations will take place with persons duly authorised to act on behalf of the Gunggari people. The second possible ground for objecting that has been foreshadowed is that, while the application, as amended, would relate only to four parcels of land in the town of Dunkeld, the material relied on by Mr Munn in support of that application, is material that would also be relied on in relation to the far more extensive application on behalf of the Gunggari People made in proceeding Q6027 of 2001. 4 I have, in the past, expressed the view that where a declaration is made by consent, that would not give rise to any presumption, one way or the other, in relation to land that is not the subject of such consent declaration. However, the Kooma People were not a party to the proceeding in which those views were expressed. I consider that they are entitled to the opportunity of at least taking advice in relation to the matter so as to be in a position to advance such argument as they consider appropriate as to whether some adverse consequences for their applications could flow from a consent declaration in relation to the four parcels of land in question. Accordingly, I would be disposed to defer making any orders as sought in the motion. 5 On the other hand, Mr Munn did foreshadow some time ago the possibility of making an application such as is now before me. There is, however, no explanation as to why it was left until 23 August 2002 before the application was formally made. It is now getting on towards twelve months since it was thought that there was agreement as to consent declarations in relation to land that includes the Dunkeld land. It is unfortunate that the resolution of the application has been delayed in the way that it has been, although I do not suggest, at this stage, that anybody in particular is at fault in relation to the way the matter has proceeded. Nevertheless, that history indicates why Mr Munn is anxious to have the matter of the Dunkeld land resolved as quickly as possible. 6 I consider the appropriate course is to make orders substantially as sought by Mr Munn, but to stay those orders until the Kooma People have had an opportunity to take advice, and to inform the Court whether they do, in truth, wish to oppose the orders. If, within a reasonable period of time, they have not indicated that they wish to oppose the orders, then the stay will be dissolved. However, if, within a reasonable time, they indicate that they do wish to make further submissions, they will have the opportunity of doing so. I propose to give directions for written submissions, and ultimately, for a further hearing if that becomes necessary when the other Gunggari claim is before the Court for directions. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 9 September 2002 Counsel for the Applicant: Mr R. Munn appeared in person Counsel for State of Queensland: Mr G. Hiley QC Solicitor for the State of Queensland: Crown Law Counsel for Queensland South Representative Body: Mr M. Maurice QC Counsel for Mr Wayne Wharton on behalf of the Kooma People: Mr A. Preston Date of Hearing: 28 August 2002 Date of Judgment: 28 August 2002