FEDERAL COURT OF AUSTRALIA Wharton on Behalf of the Kooma People v State of Queensland [2020] FCA 574 File number: QUD 785 of 2019 Judge: RANGIAH J Date of judgment: 30 April 2020 Catchwords: NATIVE TITLE – application for joinder – whether representative Aboriginal/Torres Strait Islander Body is already a party under s 84(3)(a) of the Native Title Act 1993 (Cth) PRACTICE AND PROCEDURE – application by applicant for adjournment of strike-out application – where virtual hearing proposed in circumstances of COVID-19 pandemic – where there are difficulties in contacting the applicant – consideration of relevant issues Legislation: Native Title Act 1993(Cth) ss 61(1), 83A and 84(3)(b) Cases cited: Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563 Date of hearing: 24 April 2020 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr G Sheahan Solicitor for the Applicant: ESJ Law Counsel for the Respondent: Ms N Kidson QC Solicitor for the Respondent: Crown Law Solicitor for Queensland South Native Title Services: Mr T Wishart of Queensland South Native Title Services ORDERS QUD 785 of 2019 BETWEEN: WAYNE MORRIS WHARTON ON BEHALF OF THE KOOMA PEOPLE Applicant AND: STATE OF QUEENSLAND Respondent JUDGE: RANGIAH J DATE OF ORDER: 30 APRIL 2020 THE COURT ORDERS THAT: 1. Orders 3 and 4 of the orders made on 6 March 2020 be set aside. 2. The following matters are to be listed and heard together: (a) Paragraph 1 of the interlocutory application filed by the State of Queensland on 4 March 2020 (strike-out application); (b) The interlocutory application filed by the applicant on 20 April 2020 (claim amendment and 83A application). 3. On or before 4pm on 14 May 2020: (a) the State of Queensland is to file and serve: (i) any further affidavit(s) on which it intends to rely in support of the strike-out application; (ii) any affidavit(s) on which it intends to rely in response to the claim amendment and 83A application; (iii) one set of consolidated written submissions (not exceeding 20 pages) addressing all applications. (b) Any respondent other than the State of Queensland who wishes to be heard in relation to the strike-out application, or the claim amendment and 83A application, is to file and serve: (i) any affidavit(s) on which it intends to rely; (ii) one set of consolidated written submissions (not exceeding 20 pages) addressing the relevant application(s). 4. On or before 4pm on 11 June 2020, the applicant is to file and serve: (a) any affidavit(s) in response; (b) one set of consolidated written submissions (not exceeding 20 pages) addressing all applications. 5. On or before 4pm on 17 June 2020, the State of Queensland and any other respondent, file and serve any affidavits in response and submissions in reply (not exceeding 3 pages) addressing both applications. 6. Order 5 of the orders made on 6 March 2020 be varied by deleting "18 May 2020" and inserting "24 June 2020" in lieu thereof. 7. The claim amendment and 83A application be listed for hearing at 10.15am on 24 June 2020 with the strike-out application. 8. A Registrar of this Court provide a copy of the 83A application and the affidavits and submissions concerning that application to the Native Title Registrar. 9. Costs be reserved. 10. There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RANGIAH J: 1 The principal proceeding is an application for a determination of compensation brought pursuant to s 61(1) of the Native Title Act 1993 (Cth) (the NTA). 2 The issues presently before the Court are, firstly, whether Queensland South Native Title Services (QSNTS) is a party to the proceeding, and, secondly, whether an application to strike-out the proceeding brought by the State of Queensland should be adjourned for an indeterminate period. These are broadly the same issues I have dealt with in a judgement published today in Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563 (the Bigambul judgment). These reasons should be read together with those in the Bigambul judgement. 3 QSNTS is a representative Aboriginal/Torres Strait Islander body for the area covered by the compensation application. QSNTS has given notice in the prescribed form pursuant to s 84(3)(b) of the NTA that it wants to be a party to the proceeding. For the reasons I have given in the Bigambul judgment, QSNTS became a party to the proceeding upon giving the notice, without the need for any exercise of judicial power by the Court. 4 The State's strike-out application is listed for hearing on 18 May 2020. The applicant seeks an adjournment of the hearing to a date to be fixed after the conclusion of the COVID-19 pandemic. 5 The applicant's solicitor, Mr Matus, deposes that the applicant, Mr Wayne Wharton, is an elderly man with underlying health issues. Mr Matus states that Mr Wharton left his usual residence in the outer suburbs of Brisbane to "go out on Country" on about 23 March 2020 because he fears for his health if he contracts the COVID-19 virus. 6 Mr Matus deposes that contact with Mr Wharton has been difficult since then. Mr Matus was able to speak to Mr Wharton on 15 April 2020, when he gave instructions that he presently has no fixed address and moves around "on Country". Mr Wharton checks his mobile telephone messages and emails when he has telephone reception, which is irregular. Mr Wharton wishes to be present at all Court hearings, but is unwilling to travel to Brisbane for any hearing. 7 The applicant's lawyers submit that they will not be able to take full and timely instructions with respect to the hearing. Further, they submit that Mr Wharton will not be able to participate in the hearing except by telephone, but even that would not allow him to seek or obtain advice or assistance during the hearing. They seek an adjournment for an indeterminate period pending the end of the pandemic. 8 In the Bigambul judgment, I rejected a similar submission. It is Mr Wharton's responsibility as the applicant to stay in contact with his solicitors in order to be able to provide them with instructions. It appears that he is able to bring himself within mobile telephone range when he so chooses. If he chooses not to place himself in a position to instruct his lawyers, any inhibition upon their conduct of the proceeding is attributable to his default. That default should not be visited upon the State, which is entitled to have its application heard within a reasonable time. 9 The hearing will be conducted using the Microsoft Teams application. Mr Wharton will be able to observe the proceedings by video-link, or at least listen to the hearing by telephone. If there are difficulties in the provision of instructions during the hearing, that can be accommodated through the matter being stood down or further submissions being provided after the hearing. 10 I am not satisfied that it is appropriate to adjourn the hearing of the State's strike-out application to a date to be fixed. However, I will allow an adjournment until 24 June 2020 so that it can be heard on the same day as the Bigambul proceeding. The applicant's application under s 83A of the NTA and application seeking amendment of the compensation application will be listed for hearing at the same time. I will make procedural orders to facilitate the hearing. 11 I will direct that a Registrar provide a copy of the applicant's s 83A application and all affidavits and written submissions to the Native Title Registrar. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 30 April 2020