FEDERAL COURT OF AUSTRALIA Woosup on behalf of the Ankamuthi People v State of Queensland [2016] FCA 351 File number(s): QUD 6158 of 1998 Judge(s): GREENWOOD J Date of judgment: 5 April 2016 Catchwords: NATIVE TITLE – consideration of an application under s 66B of the Native Title Act 1993 (Cth) – consideration of the question of whether an order for costs of the adjournment ought to be made against Mr Larry Woosup and Ms Beverley Mamoose (also known as Beverley Tamwoy) having regard to s 85A of the Native Title Act 1993 (Cth) Legislation: Native Title Act 1993 (Cth) – s 61, s 66B, s 85A Date of hearing: 5 April 2016 Date of last submissions: 5 April 2016 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr D Yarrow Solicitor for the Applicant: Cape York Land Council Counsel for Mr Larry Woosup and Ms Beverley Mamoose (also known as Beverley Tamwoy): Mr A Preston Solicitor for Mr Larry Woosup and Ms Beverley Mamoose (also known as Beverley Tamwoy): Girgenti Lawyers Solicitor for the First Respondent: Ms M Gittins, Crown Law Solicitor for the Second Respondent: Mr M Wright, Preston Law Solicitor for the Eleventh Respondent: Ms C Norris, p&e Law Solicitor for the Seventeenth Respondent: Ms G Carstensen, Ashurst Australia Solicitor for the Nineteenth Respondent: Mr P Gore, Gore & Associates ORDERS QUD 6158 of 1998 BETWEEN: LARRY WOOSUP ON BEHALF OF THE ANKAMUTHI PEOPLE (and others named in the Schedule) Applicant AND: STATE OF QUEENSLAND (and others named in the Schedule) First Respondent JUDGE: GREENWOOD J DATE OF ORDER: 5 APRIL 2016 THE COURT ORDERS THAT: 1. The interlocutory application by which orders are sought under s 66B of the Native Title Act 1993 (Cth) is adjourned to a date to be nominated by the Registry of the Federal Court of Australia. 2. Mr Larry Woosup and Ms Beverley Mamoose (also known as Ms Beverley Tamwoy) pay the costs of the appearance before the Court today incurred by: the applicants in the native title determination application under s 61 of the Native Title Act 1993 (Cth) including the costs of the eight indigenous respondents; the State of Queensland; Old Mapoon Aboriginal Corporation; the Cook Shire Council; Rio Tinto Aluminium Limited, Alcan South Pacific Pty Ltd and RTA Weipa Pty Ltd; and Queensland Seafood Industry Association. 3. In addition to the costs the subject of Order 2, Mr Larry Woosup and Ms Beverley Mamoose (also known as Ms Beverley Tamwoy) pay the costs of the parties identified in Order 2 thrown away by reason of the adjournment. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT GREENWOOD J: 1 The application before the Court this morning is an interlocutory application under s 66B of the Native Title Act 1993 (Cth) (the "Act") for an order that Charles Woosup, George Mamoose, Michael Toby, Asai Pablo, Tracey Ludwick, Ella Hart (Deemal), Nelson Stephen, Ben Tamwoy, Catherine Salee and Mark Gebadi jointly replace the current applicant. 2 The effect of that order, if made, is to remove Larry Woosup, Beverley Mamoose (also known as Beverley Tamwoy) and Richard Woosup as applicants, on their own behalf and on behalf of the Ankamuthi People in a native title determination application under s 61 of the Act and related provisions of the Act. 3 The individuals recited in para 1 are also presently applicants in the native title determination application and Order 1 contemplates that they will be the continuing applicants. 4 The application has been listed before the Court this morning. Girgenti Lawyers act for Larry Woosup and Beverley Mamoose (also known as Beverley Tamwoy). Mr Preston of counsel appears for Larry Woosup and Beverley Mamoose (also known as Beverley Tamwoy). Mr Preston, on their behalf, makes an application for the adjournment of the interlocutory application in order to enable his clients to put on evidence in relation to particular matters they wish to agitate. The present application arose out of matters which were the subject of an earlier directions hearing which was brought on against the background of contentions that Larry Woosup had failed to take particular steps required of him by the applicant peoples and the other applicants. It is not necessary to presently examine the various contentions which were raised at that application. In the result, the present interlocutory application was brought on the footing that relevant resolutions had been passed at duly convened meetings of the applicant peoples removing Larry Woosup, Beverley Mamoose (also known as Beverley Tamwoy) and Richard Woosup as applicants. 5 In relation to interlocutory applications, it is not uncommon in the Court's practice to list a matter for directions and then directions are made about the determination of the matter according to a set of protocols. Normally, they would involve filing of affidavits by the applicants, affidavits in response and submissions to be put on in relation to those matters. That orthodoxy, of course, has to be looked at in the context of this particular matter which came on for directions late last year against the background of affidavit material agitating questions in relation to the conduct of Larry Woosup. The matter was the subject for directions, steps were taken to convene meetings, resolutions were passed and then the application under s 66B of the Native Title Act 1993 (Cth) was filed and brought on. 6 It seems to me, having regard to the history of the matter, that it was reasonably obvious to parties that what was to happen this morning was a determination of the question of whether or not orders ought to be made under s 66B of the Act. This morning an application has been made for an adjournment of the determination of that application on the footing that Larry Woosup wishes to put on affidavit evidence which goes to questions relevant to whether an order ought to be made under s 66B. Having heard Mr Preston of counsel on that topic, I accept that Larry Woosup ought to be given an opportunity to put on evidence going to the matters about which he wishes to raise a question. However, the position is that Larry Woosup has not put on any affidavit material of any kind reflecting any question of fact which he would wish to agitate. Nor has he put on material which takes issue with any of the affidavit material relied upon by the applicants. 7 That affidavit material, of course, it should be noted, includes material going to the passing of resolutions at meetings of the native title claim group. At those meetings, Larry Woosup is recorded as having attended the meetings. He moved motions at the meetings. Votes were passed unanimously. Thus, he engaged ubiquitously in these meetings and his conduct of having engaged in them is inconsistent with the position that he now wishes to take. 8 Nevertheless, if there is a question to be determined and a question of law alive about whether the Court ought to make an order under s 66B, I accept that Larry Woosup ought to be given an opportunity to be heard on that question. He will be given an opportunity and I understand from Mr Preston that Larry Woosup needs about two weeks to put on his material. 9 The application will be adjourned for approximately two weeks to a date to be nominated by the Registry which will occur today. It will be within three weeks. The parties are to caucus and make arrangements about the provision of material from the applicant, to the extent that information is sought from the Cape York Land Council. If arrangements cannot be reached about that matter, I will make directions from Chambers about it. 10 The remaining question, then, is the question of costs that are thrown away by reason of the application this morning. It seems to me that the conduct of Larry Woosup in not making clear his intention to appear at these proceedings on the contended footing that today is simply a directions hearing, nor making his intention clear that he would make an application for the adjournment of the hearing of the matter in order to put on material, is conduct properly described as "acting unreasonably" in all the circumstances. Larry Woosup has had plenty of time to at least file an affidavit which takes issue with some central matters about which he would wish to later agitate and would be the subject of further affidavit material. He has not done so. I am satisfied that he has acted unreasonably. Parties have come here today prepared and ready to argue the question. Costs have been literally thrown away and wasted utterly unreasonably in an area where the provision of funds for advancing the interests of native people in this country are precious and can never be wasted. 11 As to the question of the costs of today, the Court asked Mr Preston what should happen about the costs. Mr Preston responded: "Your Honour, I've had a brief discussion with my solicitor. We understand the position". Mr Preston also said this: The only thing that we can submit is that it was our understanding, based on Court practice, that these are often return dates. But other than that, it has been confirmed there's no material put on, anything like that. There has been no communication about the proposed course of action. We would accept that. 12 Because there was no material put on by Larry Woosup nor any indication that he would seek to put on material and seek an adjournment of the matter, the parties have attended today in the expectation that the application would be dealt with. 13 I accept that most of the costs incurred in preparing the relevant affidavits are not lost and will be able to be used and will, no doubt, be relied upon in support of the application. Obviously enough, there will be a body of other affidavit evidence that will come forward, one imagines. However, the costs of today are lost. I will make an order that Larry Woosup and Beverley Mamoose (also known as Beverley Tamwoy) pay the costs of all other parties who have appeared today. I will order that Larry Woosup and Beverley Mamoose (also known as Beverley Tamwoy) pay the costs thrown away by the application to the extent that there are any other costs beyond the appearance costs today. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 5 April 2016 SCHEDULE OF PARTIES QUD 6158 of 1998 Applicants MARK GEBADI AND OTHERS ON BEHALF OF THE ANKAMUTHI PEOPLE Respondents Second Respondent: COOK SHIRE COUNCIL Third Respondent: TORRES SHIRE COUNCIL Fourth Respondent: PRISCILLA SOLEMA BILLY Fifth Respondent: FRANCIS BRISBANE Sixth Respondent: MARIE BROWN Seventh Respondent: BERNARD CHARLIE Eighth Respondent: MEUN LIFU Ninth Respondent: ANZAC McDONNELL Tenth Respondent: WALTER MOSES Eleventh Respondent: OLD MAPOON ABORIGINAL CORPORATION Twelfth Respondent: GEORGE PAUSA Thirteenth Respondent: THE TJUNGUNDJI PEOPLE OF OLD MAPOON Fourteenth Respondent: THE WARANGKU PEOPLE Fifteenth Respondent: ERGON ENERGY CORPORATION LIMITED Sixteenth Respondent: ALCAN SOUTH PACIFIC PTY LTD Seventeenth Respondent: RIO TINTO ALUMINIUM LIMITED (FORMERLY KNOWN AS COMALCO ALUMINIUM LTD) Eighteenth Respondent RTA WEIPA PTY LTD Nineteenth Respondent: QUEENSLAND SEAFOOD INDUSTRY ASSOCIATION