FEDERAL COURT OF AUSTRALIA Budby on behalf of the Barada Barna People v State of Queensland [2013] FCA 1469 Citation: Budby on behalf of the Barada Barna People v State of Queensland [2013] FCA 1469 Appeal from: Application for leave to appeal: Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314 Parties: FRANK BUDBY, LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE v STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE OF RESPONDENT PARTIES File number: QUD 209 of 2013 Judge: DOWSETT J Date of judgment: 31 May 2013 Date of hearing: 31 May 2013 Place: Brisbane Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 3 Counsel for the Applicant: Mr KA Barlow QC with Mr G Del Villar Solicitor for the Applicant: Gore & Associates Counsel for the State of Queensland: Ms N Kidson Solicitor for the State of Queensland: Crown Law Counsel for the Wiri Respondents: Mr M Liddy Solicitor for the Wiri Respondents: North Queensland Land Council IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 209 of 2013 BETWEEN: FRANK BUDBY, LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE Applicant AND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE OF RESPONDENT PARTIES Respondents JUDGE: DOWSETT J DATE OF ORDER: 31 MAY 2013 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the applicants have leave to appeal in the terms of the notice of appeal; 2. the costs of the application are reserved to the Full Court; and 3. there be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 209 of 2013 BETWEEN: FRANK BUDBY, LES BUDBY AND CECIL BROWN JNR ON BEHALF OF THE BARADA BARNA PEOPLE Applicant AND: STATE OF QUEENSLAND AND OTHERS NAMED IN THE SCHEDULE OF RESPONDENT PARTIES Respondents JUDGE: DOWSETT J DATE: 31 MAY 2013 PLACE: BRISBANE REASONS FOR JUDGMENT 1 I conclude that there is an arguable case on appeal in connection with the question of prospects of success on the material as it was before her Honour. I observe, with respect, that her Honour seems not to have, in her reasons at least, identified specifically any particular areas of weakness. In those circumstances, it is appropriate that the applicant have leave to appeal. As to the second ground, it appears that there are two possible approaches to be taken to the very lengthy delay which has been associated with this matter, although there is rather more to be said for the approach taken by the State than that taken by the applicant. Nonetheless, in those circumstances, I am willing to grant leave to appeal. There will be leave to appeal in terms of the draft notice of appeal. As to the question of a stay, the only prejudice to which the applicant points in connection with a stay is that it may lose priority attaching to its application for a native title determination. This is not relevant to the ultimate success or failure of the application. Rather it relates to the question of who may negotiate effectively with persons wishing to carry out activities in connection with the claim area, pending any final determination. As I understand it, other claim groups may file applications for native title determinations which may, to some extent, overlap on the claim area. 2 I do not propose to grant a stay in this case, firstly, because it is not yet clear that the possible prejudice to which I have referred will actually occur and secondly, because I am still very disturbed by the delay which has occurred in prosecuting the case. I have difficulty in resisting the inference that it has, to a substantial extent, been caused by the applicant and the applicant's attitude to this litigation. In those circumstances, I decline to grant the stay. I reserve the costs of this application to the Full Court. 3 The question of a stay should not be taken as finally resolved. The appellant should consider any particular problems that arise in the event that another application is filed, or if something has to be done in connection with any other negotiations. In such a case, it can apply for a stay or other relief. I grant liberty to apply in that regard. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 24 March 2014 SCHEDULE OF RESPONDENT PARTIES Respondents: Second Respondent: CENTRAL HIGHLANDS REGIONAL COUNCIL Third Respondent: COMMONWEALTH OF AUSTRALIA Fourth Respondent: ISAAC REGIONAL COUNCIL Fifth Respondent: MACKAY REGIONAL COUNCIL Sixth Respondent: GRAHAM BELL Seventh Respondent: NORMAN ABRAHAM YURUNAG JOHNSON Eighth Respondent: NORTH QUEENSLAND LAND COUNCIL ABORIGINAL CORPORATION Ninth Respondent: NANCY RIEHL Tenth Respondent: AMANDA SAUNEY Eleventh Respondent: COLLEEN SAUNEY Twelfth Respondent: ERROL SAUNEY Thirteenth Respondent: JOANNE SAUNEY Fourteenth Respondent: JOSHUA SAUNEY Fifteenth Respondent: LANCE SAUNEY Sixteenth Respondent: LINDSAY SAUNEY Seventeenth Respondent: MAXINE SAUNEY Eighteenth Respondent: NIKITA SAUNEY Nineteenth Respondent: ROSS SAUNEY Twentieth Respondent: SHANE SAUNEY Twenty First Respondent: TONY SMALLWOOD Twenty Second Respondent: LINDA JOYCE WAILU Twenty Third Respondent: CELESTE WALSH Twenty Fourth Respondent: DALEY WHITE Twenty Fifth Respondent: DAMIAN WHITE Twenty Sixth Respondent: DANIEL WHITE Twenty Seventh Respondent: SAMANTHA WHITE Twenty Eighth Respondent: KATHLEEN WINDSOR Twenty Ninth Respondent: ERGON ENERGY CORPORATION LIMITED Thirtieth Respondent: TELSTRA CORPORATION LIMITED Thirty First Respondent: ANGLO COAL (GERMAN CREEK) PTY LTD Thirty Second Respondent: ANGLO COAL (GROSVENOR) PTY LTD Thirty Third Respondent: ARROW ENERGY LIMITED Thirty Fourth Respondent: BISTROTEL PTY LTD Thirty Fifth Respondent: BNG (SURAT) PTY LTD Thirty Sixth Respondent: BOWEN CENTRAL COAL PTY LTD Thirty Seventh Respondent: CAPCOAL MINE JOINT VENTURERS Thirty Eighth Respondent: CENTRAL QUEENSLAND PIPELINE PTY LTD Thirty Ninth Respondent: CH4 PTY LTD Fortieth Respondent: CHERWELL CREEK COAL PTY LTD Forty First Respondent: ENERGY MINERALS PTY LTD Forty Second Respondent: EXXARO AUSTRALIA PTY LTD Forty Third Respondent: MARUBENI COAL PTY LTD Forty Fourth Respondent: MATILDA COAL PTY LIMITED Forty Fifth Respondent: MIDDLEMOUNT COAL PTY LTD Forty Sixth Respondent: MORANBAH NORTH COAL PTY LTD Forty Seventh Respondent: MORANBAH NORTH MINE JOINT VENTURERS Forty Eighth Respondent: MORANBAH SOUTH JOINT VENTURERS Forty Ninth Respondent: NEBO CENTRAL COAL PTY LTD Fiftieth Respondent: NEW SOUTH OIL PTY LTD Fifty First Respondent: NIPPON STEEL AUSTRALIA PTY LIMITED Fifty Second Respondent: NORTH QUEENSLAND PIPELINE NO 1 PTY LTD Fifty Third Respondent: NORTH QUEENSLAND PIPELINE NO 2 PTY LTD Fifty Fourth Respondent: OME RESOURCES AUSTRALIA PTY LTD Fifty Fifth Respondent: PEABODY BB INTERESTS PTY LTD Fifty Sixth Respondent: PEABODY COPPABELLA PTY LTD Fifty Seventh Respondent: PEABODY MOORVALE WEST PTY LTD Fifty Eighth Respondent: PEABODY WEST BURTON PTY LTD Fifty Ninth Respondent: PEABODY WEST WALKER PTY LTD Sixtieth Respondent: QUEENSLAND COAL PTY LIMITED Sixty First Respondent: RIBFIELD PTY LTD Sixty Second Respondent: SUMISHO COAL DEVELOPMENT QUEENSLAND Sixty Third Respondent: VALE AUSTRALIA (CQ) PTY LTD Sixty Fourth Respondent: VALE AUSTRALIA (IP) PTY LTD Sixty Fifth Respondent: VALE COAL EXPLORATION PTY LTD Sixty Sixth Respondent: WESTFIELD LTD Sixty Seventh Respondent: ARDAY PTY LTD Sixty Eighth Respondent: JOHN THOMAS BAKER Sixty Ninth Respondent: MARNIE LOUISE BAKER Seventieth Respondent: ANTHONY JOHN BELLA Seventy First Respondent: EDWARD MARTIN BELLA Seventy Second Respondent: MARTIN JOSEPH BELLA Seventy Third Respondent: PETER ANDREW BELLA Seventy Fourth Respondent: REGENA FRANCES, BELLA Seventy Fifth Respondent: ROBERT JAMES BELLA Seventy Sixth Respondent: STEPHEN EDWARD BELLA Seventy Seventh Respondent: ROBERT JOHN BORG Seventy Eighth Respondent: HAROLD GEORGE BRADFORD Seventy Ninth Respondent: RUTH BRADFORD Eightieth Respondent: LAWRENCE PAUL DANASTAS Eighty First Respondent: MARION CARMEL DANASTAS Eighty Second Respondent: KATHRYN HEAD Eighty Third Respondent: THOMPSON HEAD Eighty Fourth Respondent: RAYE MARILYN O'SULLIVAN Eighty Fifth Respondent: ROBERT ALAN O'SULLIVAN Eighty Sixth Respondent: STEPHEN MICHAEL PETTS Eighty Seventh Respondent: WAYNE HOWARD PETTS Eighty Eighth Respondent: CRAIGIE ROSS Eighty Ninth Respondent: GRAHAM ROSS Ninetieth Respondent: KIM FRANCES WILLOUGHBY