FEDERAL COURT OF AUSTRALIA Barnes v Northern Territory of Australia [2012] FCA 699 Citation: Barnes v Northern Territory of Australia [2012] FCA 699 Parties: RODNEY BARNES ON BEHALF OF THE JANBA GARDALANJI GROUP v NORTHERN TERRITORY OF AUSTRALIA, ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O'KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) and AUSTCATTLE HOLDINGS PTY LTD ACN 010 055 384 File number: NTD 18 of 2012 Judge: LANDER J Date of judgment: 28 June 2012 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file notice of appeal refused Legislation: Native Title Act 1995 (Cth) s 85A Cases cited: Barnes v Northern Territory of Australia [2012] FCA 38 Date of hearing: 28 June 2012 Place: Darwin Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms S Brownhill Solicitor for the First Respondents: Solicitor for the Northern Territory Counsel for the Second Respondent: Mr T Keely Solicitor for the Second Respondent: Northern Land Council Counsel for the Third Respondent: Ms E Farnell Solicitor for the Third Respondent: Ward Keller IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 18 of 2012 BETWEEN: RODNEY BARNES ON BEHALF OF THE JANBA GARDALANJI GROUP Applicant AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O'KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) Second Respondent AUSTCATTLE HOLDINGS PTY LTD ACN 010 055 384 Third Respondent JUDGE: LANDER J DATE OF ORDER: 28 JUNE 2012 WHERE MADE: DARWIN THE COURT ORDERS THAT: 1. The Northern Territory of Australia be joined as a respondent to the proceeding. 2. Archie Allen, Beazley Anderson, Gordon Noonan, Henry Morrison, Lucy O'Keefe, Tony Cutter and Tony Willy (on behalf of the Kutinja, the Kunapa and Mangirriji, and the Kunakiji and the Lukkurnu Groups of the Warramungu, the Kujuluwa, the Marrarrabana and the Garrgarrguwarja Groups of the Wampaya, the Purrukwara Group of the Wayaka, and the Ngapa Group of the Warlmanpa) be joined as respondent to the proceeding. 3. Austcattle Holdings Pty Ltd (ACN 010 055 384) be joined as a respondent to the proceeding. 4. The Northern Land Council be dismissed as a respondent to the proceeding. 5. The application be refused. 6. The Registry of the Federal Court of Australia not accept for filing any application by the applicant for an extension of time within which to appeal from the orders made by Mansfield J on 5 August 2011, without the applicant first obtaining leave of a Judge of this Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 18 of 2012 BETWEEN: RODNEY BARNES ON BEHALF OF THE JANBA GARDALANJI GROUP Applicant AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent ARCHIE ALLEN, BEAZLEY ANDERSON, GORDON NOONAN, HENRY MORRISON, LUCY O'KEEFE, TONY CUTTER AND TONY WILLY (ON BEHALF OF THE KUTINJA, THE KUNAPA AND MANGIRRIJI, AND THE KUNAKIJI AND THE LUKKURNU GROUPS OF THE WARRAMUNGU, THE KUJULUWA, THE MARRARRABANA AND THE GARRGARRGUWARJA GROUPS OF THE WAMPAYA, THE PURRUKWARA GROUP OF THE WAYAKA, AND THE NGAPA GROUP OF THE WARLMANPA) Second Respondent AUSTCATTLE HOLDINGS PTY LTD ACN 010 055 384 Third Respondent JUDGE: LANDER J DATE: 28 JUNE 2012 PLACE: DARWIN REASONS FOR JUDGMENT 1 On 30 March 2012, the applicant filed an application for an extension of time to file a notice of appeal from a judgment and orders made by Mansfield J on 5 August 2011. He also filed two other applications for an extension of time for leave to appeal. The application was supported by an affidavit and by a draft notice of appeal which was curiously affirmed on 12 March 2012. The original respondent named in the application was the Northern Land Council. The Northern Land Council was not a party to the proceeding before Mansfield J on 5 August 2011. I made an order dismissing the Northern Land Council as a party to the application for an extension of time within which to appeal. 2 When the matter was called on this morning, Mr Keely appeared for Archie Allen and other persons who were the applicants in the proceeding before Mansfield J. Mr Keely indicated to the Court that his client's view was that they ought to be a party to the proceeding. Mr Barnes applied to join Mr Allen and those persons with whom Mr Allen had appeared and, there being no objection, I made an order joining Mr Allen and those persons with whom Mr Allen had appeared. 3 Ms Brownhill appeared on behalf of the Northern Territory Government. The Northern Territory Government was a party to the proceeding before Mansfield J. She said that the Northern Territory Government should also be a party to the proceeding. Mr Barnes applied to joining the Northern Territory Government and, there being no objection, I made an order joining the Northern Territory Government as a respondent to the proceeding. 4 Ms Farnell represented Austcattle Holdings, which was a party to the proceeding before Mansfield J. She also indicated that Austcattle Holdings ought to be a party to the application. Mr Barnes made an application to join Austcattle Holdings and, there being no objection, I made an order joining Austcattle Holdings as a party to the proceeding. 5 This is not the first application made by this applicant for an extension of time within which to file a notice of appeal from the judgment and orders made by Mansfield J on 5 August 2011. 6 On 20 December 2011, Finn J made the following orders: 1. The oral application made for an extension of time in which to file and serve an amended grounds of appeal and submissions be refused. 2. The application for an extension of time to file and serve a notice of appeal be dismissed. 3. These orders be suspended until the publication of these reasons. 7 On 1 February 2012, Finn J published his reasons for making the orders made on 20 December 2011 and, as a consequence of paragraph 3 of those orders, the orders ceased to be suspended: Barnes v Northern Territory of Australia [2012] FCA 38. 8 Two claims for native title were made in respect of the Brunette Downs pastoral lease. The first, which was commenced on 12 February 2003, was made by Archie Allen and others, representing themselves and other native title claim groups called the Kutinja, the Kunapa and Mangirriji, and the Kunakiji and the Lukkurnu groups of the Warrumungu, the Kujuluwa, the Marrarrabana and the Garrgarrguwarja groups of the Wampaya, the Purrukwara group of the Wayaka, and the Ngapa group of the Warlmanpa. That application was for native title over two pastoral leases, being the Rockhampton and Brunette Downs pastoral leases. 9 The second application was commenced on 9 September 2009 by the applicant for the native title claim group called the Janba Gardalanji over the Brunette Downs pastoral lease. 10 Justice Mansfield ordered that the question of overlap of the two claims be heard together and the question raised in the second application, whether the native title group, Janba Gardalanji, holds native title rights and interests over the overlap area exclusively or whether such group is part of a group that holds native title rights and interests over the overlap area as claimed in the first application, be heard and determined as a separate question prior to the hearing and determination of any other question in the joint hearing of the two proceedings. 11 Justice Mansfield determined that the native title group Janba Gardalanji, in matter NTD 18 of 2009, does not hold native title rights and interests over the overlap area exclusively, but is part of a group that may hold native title rights and interests over the overlap area as claimed in the first application. Thus, he ordered that the second application, being the one brought by this applicant, be dismissed and the first application be stood over for further directions. 12 The applicant seeks to appeal against his Honour's order dismissing the second application on the ground that his Honour erred in determining that the Janba Gardalanji do not hold native title rights and interests over the overlap area exclusively. 13 The matter which Mansfield J resolved was entirely factual. His Honour observed that the legal principles were not in issue, but that what had to be determined was the application of those principles to the facts. 14 In the end result he found that the overwhelming evidence indicated that the applicant's claim group was part of a wider group, being the applicant claim group in the first application. 15 After his Honour made the determinations and orders which are complained of, the applicant filed an application for an extension of time to file and serve a notice of appeal. At the hearing before Finn J, the applicant sought an extension of time to file a notice of appeal in order to obtain legal advice to determine whether there were grounds to appeal against Mansfield J's determination and orders. Subsequently he made an oral application to Finn J for an extension of time in order to file and serve an amended grounds of appeal and submissions. 16 The applicant has previously had some access to legal advice. At a directions hearing before Finn J he advanced six grounds of appeal which had been drawn by a Sydney lawyer who said he was unable to appear for the applicant until the applicant obtained legal aid and a copy of the transcript of the proceedings before Mansfield J. 17 Justice Finn adjourned the directions hearing, giving leave to the applicant to file and serve a proposed amended draft notice of appeal and any further written submissions and, in particular, to explain why the six issues raised at the directions hearing may demonstrate arguable error on the part of Mansfield J. 18 However, when the matter came on again before Finn J on 20 December 2011, the applicant sought a further extension of time to seek legal aid and to seek further advice. The application for the adjournment was opposed. Justice Finn refused the application on the ground that there was no basis upon which such an extension could be granted. That left the applicant to rely upon his original notice of appeal, which Finn J found did not indicate any error on the part of Mansfield J. Justice Finn therefore refused the application for an extension of time to file a notice of appeal. 19 The applicant, and the group that the applicant represented, were not legally represented at the hearing before Mansfield J, at the hearing before Finn J, and on this application. 20 On this application there are no grounds of appeal indicated in the draft notice of appeal. It is merely stated as a ground of appeal "[t]o overturn Judge's decision that we are not a seperate (sic) Group." 21 The applicant has deposed, in the affidavit that accompanied the application, that the applicant group in the first application based their claims upon "lies, deception, unanswered question, and overly corrupti (sic)". 22 In his affidavit he makes serious claims about the conduct of the Northern Land Council and pastoralists, and the Northern Territory Government, all of which are largely unsupported. He says that, if he were provided with a solicitor, there are many arguments that could be put to the Court. He seeks in the affidavit the appointment by the Court of a lawyer to properly present a case on behalf of him and his family or that, in the alternative, the Northern Land Council provide legal funding as he says they are required to do. 23 The applicant has said this morning, in support of his application, that the claims made by Mr Keely's clients, the second respondent, were dishonest. He has indicated that his claim is a rightful claim to the native title rights over the pastoral lease and that Mansfield J was wrong to refuse his claim. 24 I put to him during his argument that he had to address two issues if he were to succeed on this application. First, as to why he should be entitled to bring a further application for an extension of time within which to appeal, having regard to the fact that Finn J has already refused such an application. Secondly, the grounds of appeal upon which he relies for the purpose of the application. 25 In answer to that, he asked that the Court to appoint a lawyer to act for him because he has no legal training. He asked that the matter be adjourned so that he could obtain legal advice to prosecute this application. The application was opposed by all three counsel on behalf of the three parties who were joined today. I refused the application. Immediately after I had refused the application for adjournment, Mr Barnes left the Court without saying why he was leaving. He left with a supporter. 26 This application for an extension of time within which to file a notice of appeal must fail for two reasons: first, because it has already been rejected by Finn J and a second application could almost be described as vexatious. Secondly, and more importantly, it is doomed to fail because the draft notice of appeal and the application itself does not identify any error in Mansfield J's reasoning process that could possibly lead to Mansfield J's orders being revoked or varied. Absent any arguable ground of appeal, it would be inappropriate to give the applicant an extension of time within which to file a notice of appeal. 27 The application is refused. 28 Mr Keely, on behalf of the second respondent, made an application that the Registry not accept for filing any further application for an extension of time without the applicant first being given leave by a judge of this Court. He has pointed out that this is the third hearing of the two applications that counsel and their instructing solicitors have had to attend in relation to Mr Barnes' complaints about the determination and orders made by Mansfield J on 5 August 2011. 29 He does not seek an order for costs on behalf of his client nor, as I understand it, do the other parties because costs are usually not awarded in this jurisdiction: s 85A of the Native Title Act 1995 (Cth). 30 However, he wishes to avoid his clients being put to further cost and expense by a further application of the kind which I have dismissed today, and which Finn J dismissed on 20 December 2011. Ordinarily, I would not make an order of that kind in the absence of the party against whom the order is to operate. However, Mr Barnes voluntarily left the Court this morning midway through the application as a consequence of my failure to adjourn the proceeding at his request. 31 In those circumstances it seems to me not inappropriate to consider Mr Keely's application in the absence of Mr Barnes. 32 These applications must stop. Mr Barnes has to realise that he has exhausted all avenues in relation to his claim for exclusive native title over the Brunette Downs pastoral lease. The successful parties before Mansfield J should not continue to be put to costs that they cannot recover on applications that are doomed to fail. In those circumstances, I am prepared to accede to the application made by Mr Keely and I make an order that the Registry not accept for filing any application for an extension of time within which to appeal from the judgment and orders of Mansfield J made on 5 August 2011, without the applicant first obtaining leave of a judge of the Court. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 2 July 2012