FEDERAL COURT OF AUSTRALIA Harbour v Dempsey on behalf of the Bularnu, Waluwarra & Wangkayujuru People [2014] FCA 560 Citation: Harbour v Dempsey on behalf of the Bularnu, Waluwarra & Wangkayujuru People [2014] FCA 560 Appeal from: Application for extension of time: Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland [2014] FCA 140 Parties: TRAVIS HARBOUR v ELIZABETH DEMPSEY ON BEHALF OF THE BULARNU, WALUWARRA & WANGKAYUJURU PEOPLE and STATE OF QUEENSLAND JAMES HILL v ELIZABETH DEMPSEY ON BEHALF OF THE BULARNU, WALUWARRA & WANGKAYUJURU PEOPLE and STATE OF QUEENSLAND File number: QUD 193 of 2014 QUD 196 of 2014 Judge: RANGIAH J Date of judgment: 21 May 2014 Catchwords: PRACTICE AND PROCEDURE – applications for extensions of time for leave to appeal decision of primary judge refusing to join applicants as respondents to proceedings – whether appeal precluded by s 24(1AA) of the Federal Court of Australia Act 1976 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) ss 24 and 24(1AA)(b) Native Title Act 1993 (Cth) s 84(5) Cases cited: Wilson v Alexander (2003) 135 FCR 273 Date of hearing: 21 May 2014 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 On the First Motion: QUD 193 of 2014: Counsel for the Applicant: Travis Harbour appeared in person via videolink Counsel for the First Respondent: Ms S Phillips via videolink Solicitor for the First Respondent: Queensland South Native Title Services via videolink Counsel for the Second Respondent: Ms H Bowskill QC via videolink Solicitor for the Second Respondent: Crown Law via videolink On the Second Motion: QUD 194 of 2014: Counsel for the Applicant: James Hill appeared in person via videolink Counsel for the First Respondent: Ms S Phillips via videolink Solicitor for the First Respondent: Queensland South Native Title Services via videolink Counsel for the Second Respondent: Ms H Bowskill QC via videolink Solicitor for the Second Respondent: Crown Law via videolink IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 193 of 2014 BETWEEN: TRAVIS HARBOUR Applicant AND: ELIZABETH DEMPSEY ON BEHALF OF THE BULARNU, WALUWARRA & WANGKAYUJURU PEOPLE First Respondent STATE OF QUEENSLAND Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 21 MAY 2014 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application for an extension of time to seek leave to appeal filed by Travis Harbour is dismissed. 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 196 of 2014 BETWEEN: JAMES HILL Applicant AND: ELIZABETH DEMPSEY ON BEHALF OF THE BULARNU, WALUWARRA & WANGKAYUJURU PEOPLE First Respondent STATE OF QUEENSLAND Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 21 MAY 2014 WHERE MADE: canberra THE COURT ORDERS THAT: 1. The application for an extension of time to seek leave to appeal filed by James Hill is dismissed. 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 193 of 2014 BETWEEN: TRAVIS HARBOUR Applicant AND: ELIZABETH DEMPSEY ON BEHALF OF THE BULARNU, WALUWARRA & WANGKAYUJURU PEOPLE First Respondent STATE OF QUEENSLAND Second Respondent JUDGE: RANGIAH J DATE: 21 MAY 2014 PLACE: CANBERRA IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 196 of 2014 BETWEEN: JAMES HILL Applicant AND: ELIZABETH DEMPSEY ON BEHALF OF THE BULARNU, WALUWARRA & WANGKAYUJURU PEOPLE First Respondent STATE OF QUEENSLAND Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 21 MAY 2014 WHERE MADE: CANBERRA REASONS FOR JUDGMENT 1 Travis Harbour and James Hill have each applied for an extension of time to seek leave to appeal against a judgment of Mortimer J given on 24 February 2014. 2 Mr Harbour and Mr Hill had applied for orders pursuant to s 84(5) of the Native Title Act 1993 (Cth), that they be joined as respondents to a native title claim brought on behalf of the Bularnu, Waluwarra and Wangkayujuru People. Section 84(5) of the Native Title Act provides: The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 3 The primary judge dismissed the applications for joinder. Her Honour concluded that Mr Hill had an interest in the proceeding as a member of the native title claim group. Her Honour assumed, without deciding, that Mr Harbour had a sufficient interest for the purposes of s 84(5). 4 The primary judge noted that the proceedings had been on foot for many years and that there was no explanation for the delay that outweighed the substantial disruption, delay, expense and prejudice which would be caused if the application for joinder were allowed. Her Honour found that Mr Harbour and Mr Hill could reasonably have discovered the information that they wished to put forward much earlier. The proceeding was in its final stages and her Honour considered that, on balance, she was not persuaded that Mr Harbour and Mr Hill should be joined and the finalisation of the case interrupted. 5 In an application for an extension of time for leave to appeal, the relevant considerations include the explanation for the delay and whether the prospective appeal is attended with prospects of success: Wilson v Alexander (2003) 135 FCR 273 at [24]-[26]. 6 I am satisfied that Mr Harbour and Mr Hill have provided a satisfactory explanation for their delay. The delay was caused by a delay in their obtaining a copy of the transcript and her Honour's reasons for her judgment. However, the more difficult problem for them to overcome is demonstrating that they have prospects of success in the prospective appeal. 7 It is necessary to refer to s 24 of the Federal Court of Australia Act 1976 (Cth). That section provides relevantly: (1) Subject to this section and to any other Act…the Court has jurisdiction to hear and determine: (a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; … (1AA) An appeal must not be brought from a judgment referred to in paragraph (1)(a) if the judgment is: … (b) a decision to join or remove a party, or not to join or remove a party. 8 The applications made by Mr Harbour and Mr Hill under s 84(5) of the Native Title Act were each for joinder as a party to the proceedings. The dismissal of the applications was a judgment that reflected a decision to not join Mr Harbour and Mr Hill as parties. Section 24(1AA)(b) makes it clear that an appeal cannot be brought against a judgment that is a decision of a single judge of this Court to not join a person as a party. 9 In these circumstances, Mr Harbour and Mr Hill cannot bring an appeal against the judgment of the primary judge. It would be futile to grant an extension of time for leave to appeal. I therefore propose to dismiss each of the applications. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 29 May 2014