FEDERAL COURT OF AUSTRALIA Smith on behalf of the Southern Barada & Kabalbara People v State of Queensland [2009] FCA 285 CLARRY SMITH & ORS ON BEHALF OF THE SOUTHERN BARADA & KABALBARA PEOPLE v STATE OF QUEENSLAND & ORS QUD 6004 of 2000 DOWSETT J 20 FEBRUARY 2009 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 6004 of 2000 BETWEEN: CLARRY SMITH & ORS ON BEHALF OF THE SOUTHERN BARADA & KABALBARA PEOPLE Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: DOWSETT J DATE OF ORDER: 20 FEBRUARY 2009 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the notice of motion filed 17 February 2009 be 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 eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QUD 6004 of 2000 BETWEEN: CLARRY SMITH & ORS ON BEHALF OF THE SOUTHERN BARADA & KABALBARA PEOPLE Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: DOWSETT J DATE: 20 FEBRUARY 2009 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On 1 May 2008 I ordered that on or before 30 September 2008 the applicant file and serve a notice of motion seeking leave to amend the application, and an affidavit by the applicant asserting that it was the applicant's intention to prosecute any amended application to determination. In default of compliance with this order the applicant was to show cause at the next directions hearing why the application should not be dismissed. On 23 October 2008 I extended time for compliance with that order until 13 February 2009. I also ordered that: On or before 13 February 2009, the Applicant file and serve a certificate by a legal practitioner to the effect that in his or her opinion the amended application is in a form which may properly be prosecuted to a determination as to the existence of native title. 2 Neither order has been complied with. The proceedings therefore stood dismissed on either 13 or 14 February 2009. The applicant now applies for an order extending time for compliance with the order until 15 May 2009. 3 In support of the motion the present solicitor for the applicant (the principal legal officer at Queensland South Native Title Services) swears that on 6 February 2009 he received a report from an anthropologist making certain recommendations as to amendment of the composition of the claim group. On 12 February 2009 the applicant decided to call a meeting of the claim group to authorize the proposed amendment. It is likely that such meeting will be held before the end of April so that an amended application could be filed by 15 May. Reference was also made to an earlier affidavit by Mr Hardie filed on 20 October 2008 in which he said that he had instructions to retain an anthropologist in the matter, and that he had retained Mr Jefferies, to be assisted by Dr Gorecki, to conduct the necessary research. 4 All of this occurred in the context of a course of events which goes back to at least April 2007 when the applicant accepted that the composition of the claim group, as described in the application, was inadequate. The various orders previously made by Kiefel J, and those which I have made, were designed to resolve this problem. It is, I suppose, likely that much of the difficulty in attending to this matter was attributable to difficulties which were experienced with the Gurang Land Council. It has become part of folklore in this area of the law that there is a chronic lack of funds available, particularly to applicants, but generally to all parties in proceedings of this kind. Nonetheless, the litigation must proceed. Both Kiefel J and I have taken such steps as were available to us to try to ensure that it did. There is a tendency, in this area of the law, to pretend that all problems can be sorted out by mediation and similar extra-curial procedures. The experience of the law is that those procedures work best when the claims and responses to them are clearly identified. 5 The deficiency in the current application is of a fundamental kind. It goes to the very identification of those who are entitled to claim. It seems probable that the composition of the claim group, in accordance with the proposed amendment, will not be the same as the composition of the claim group as presently described. 6 Although the position is not clear, I am inclined to the view that the reference to interlocutory orders in O 35 r 7(2)(c) should not be treated as including an order that proceedings be dismissed. To treat such an order in that way would completely undermine its effect. Tamberlin J appears to have taken that view in his decision in Kullilli People # 2 and Kullilli People #3 v State of Queensland & Ors [2007] FCA 512 at [16]. His Honour did not dispose of the case on that basis. He rather disposed of it upon a discretionary basis. The authorities suggest that the power conferred by O 35 r 7 to vary an order should be exercised sparingly. In the present case the explanation is hardly adequate. It is nothing more than a recital of events. I have been told various things which do not appear in the material. It would be inappropriate to act on them. Even if there be jurisdiction to set aside an order of this kind other than on appeal, I would not do so because I do not think, given the history of the matter, that an appropriate basis has been demonstrated for a favourable exercise of the discretion. In those circumstances, the notice of motion will be dismissed. 7 I appreciate that a consequence of the proceedings being dismissed is that such negotiating rights as may have arisen as a result of registration of the claim will be lost by the present claim group. A new claim group will only acquire such rights upon registration. This seems to me to be an appropriate result. Once it is established that a claim group is incorrectly constituted, there can be little justification for allowing it to enjoy the benefits of registration. I do not understand the purpose of the legislation to be to guarantee to people, who have no valid claim, the right to negotiate. Of course, those current claimants who will also be within the claim group as properly described will be temporarily deprived of such rights. In their case, it is the unfortunate consequence of the way in which the proceedings have been conducted. I appreciate that it is not entirely their fault, or, perhaps not their fault at all. However, at some point in all litigation, litigants must take the adverse consequences of their legal advisers' actions, just as they accept the benefits. 8 I do not criticize the applicant's present legal advisers who, I am sure, have done all that they reasonably could in the circumstances. However the history of the management of this matter is not good. This is an extreme case, and should not be taken as an indication that, in all cases where delay has been caused by absence of funding, or by neglect of the legal advisers, an application will necessarily be struck out. Each case must be decided on its merits. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 30 March 2009 Counsel for the Applicants: Mr P Richards Solicitor for the Applicants: Queensland South Native Title Services Solicitor for the State of Queensland: Crown Law Solicitor for the Rockhampton Regional Council and Queensland Lapidary and Allied Craft Clubs Association: MacDonnells Law Solicitor for Donald Montague Black, Kaye Lorraine Black and Maureen Olive: Thynne & Macartney Date of Hearing: 20 February 2009 Date of Judgment: 20 February 2009