FEDERAL COURT OF AUSTRALIA Rose on behalf of the Gunai / Kurnai and Boonerwrung People v State of Victoria [2011] FCA 1538 Citation: Rose on behalf of the Gunai / Kurnai and Boonerwrung People v State of Victoria [2011] FCA 1538 Parties: REGINA ROSE, LINDSAY MOBOURNE, CAROLYN BRIGGS AND GRAHAM (BOOTSIE) THORPE ON BEHALF OF THE GUNAI / KURNAI AND BOONERWRUNG PEOPLE v STATE OF VICTORIA AND OTHERS (PER THE ATTACHED SCHEDULE) File number: VID 6005 of 1998 Judge: NORTH J Date of judgment: 8 December 2011 Date of hearing: 8 December 2011 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 2 Counsel for the Applicant: Ms P Mullett appeared on behalf of the Kurnai People Counsel for the Respondent: Mr L McLean appeared as amicus for the Boonerwrung People IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 6005 of 1998 BETWEEN: REGINA ROSE, LINDSAY MOBOURNE, CAROLYN BRIGGS AND GRAHAM (BOOTSIE) THORPE ON BEHALF OF THE GUNAI / KURNAI AND BOONERWRUNG PEOPLE Applicants AND: STATE OF VICTORIA AND OTHERS (PER THE ATTACHED LIST) Respondents JUDGE: NORTH J DATE OF ORDER: 8 DECEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Application VID6005/1998 is struck out. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 6005 of 1998 BETWEEN: REGINA ROSE, LINDSAY MOBOURNE, CAROLYN BRIGGS AND GRAHAM (BOOTSIE) THORPE ON BEHALF OF THE GUNAI / KURNAI AND BOONERWRUNG PEOPLE Applicants AND: STATE OF VICTORIA AND OTHERS (PER THE ATTACHED LIST) Respondents JUDGE: NORTH J DATE: 8 DECEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This application for a determination of Native Title under s 61 of the Native Title Act 1993 (Cth) was lodged with the National Native Title Tribunal (the Tribunal) on 17 March 1997. It has been marked over its entire history by an inability of the applicant group to cooperate to progress the application. On a number of occasions the Court has indicated that as a result of the inability of the Gunai/Kurnai, the Kurnai represented by Ms Pauline Mullett, and the Boonerwrung to work together to progress the application, it would be appropriate that the application be struck out. The Court so indicated at a directions hearing on 21 March 2011 and again on 21 June 2011. 2 Ms Mullett appeared today on behalf of the Kurnai. Mr McLean appeared as amicus for the Boonerwrung. There was no appearance by the Gunai/Kurnai. Both Ms Mullet and Mr McLean accepted that the application in its present form could not be moved forward, given the joint nature of the applicant group. The Court offered both the opportunity of an adjournment to allow for further argument on the question whether the application should in these circumstances be struck out by the Court, acting on its own motion, for want of prosecution. Both representatives agreed that the course suggested by the Court was appropriate in the circumstances. Consequently, the order of the Court will be that the matter be struck out. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 25 January 2012 List of Respondent Parties 01 Government Interests – State of Victoria State of Victoria 02 Government Interests – State of Tasmania State of Tasmania 03 Government Interests- Commonwealth Australian Maritime Safety Authority Commonwealth of Australia 04 Government Interests - Local Flinders Council South Gippsland Shire Council 05 Land Users 1 Ball, Rosslyn June Lyneham, Vincent Roy Stielow, Mark Kenneth & Heather June Sutherland, Kevin Vuillermin, Esther Joan 06 Water Rights 1 Baess, Harry Ronec, Jane Monique Miriam 07 Telecommunication Interests Telstra Corporation Limited 09 Mining Interests 2 CBM Resources Pty Ltd 10 Victorian Commercial Fishing Licence Allan Barnett Fishing Co Pty Ltd Argyriou, Steve Awabi Pty Ltd Barrett, JM Bell, Keith James Blank, Arno Bourke, Judith Anne Boxall, Phillip Bruce Braid, Gary Edward Carabott, Robert Joseph Carr, William Christopher Corelo Pty Ltd Cull, William Deftereos, Dimitrios Empress Pearl Pty Ltd Fallone, Luigi Fearnley, Darren Lee Friend Fishing Pty Ltd Gazan, John Grassby, Owen James Guillot, John Charles Hobson, Allan Wynne Hunt, David Anthony Hyslop, Ronald Kavadas, Gerry Kazakas, Tony Killara River Pty Ltd Kirsz, Henry Kivelos, Gail Kivelos, Gloria Klaromenos, Peter Lyons, Stephen J Manias, John Marriott, Marcus McAdam, Phillip McSweeney, Gregory Melissakis, Steve M.I. Lee Marine Holdings Mitchelson, Harry Kevin Mouzakis, Petros Murdoch, John Newman, Kevin Ronald Osborne, Kenneth John & Benjamin John Pettigrove, Glen Royston Quarrel, Graham Robbins, Maxwell Charles Shannon, Joel Taranto, Paolo Tasmanian Seafoods (Holdings) Pty Ltd Tasmanian Seafoods Pty Ltd Vagias, Andrew Vawdrey, Michael VFH Abalone Pty Ltd Western Victorian Eel Growers Group Pty Ltd and Allan, William James Woodstein Pty Ltd 11 Australian Commercial Fishing Licence Austral Fisheries Pty Ltd Ben Boyd Fishing Co Pty Ltd Casement, Rodney G & Bronwyne Cull Fisheries Pty Ltd Gill, David Faraday & June Rosemary Hill, Lucas & Margaret and Van Boom, Theodorus & Miranda Jones, Edward Winston & Victoria Christina Logan Farm Pty Ltd Magnetic Industries Pty Ltd and Two's Company Pty Ltd Rosma Fishing Co Pty Ltd Wilmink, Gerhard 12 Victorian Recreational Fishing Interests Anderson's Inlet Angling Club Inc. Maxwell Fletcher 13 Recreational User Interests McDougall, John