Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc

1. The interlocutory application filed on 5 December 2022 by Mr Lawrence Kerr be dismissed.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER ACJ: 1 Before the Court is an interlocutory application filed on 5 December 2022 by Mr Lawrence Kerr (Mr Kerr) seeking to be joined as a respondent to QUD 777 of 2019 Ernest Michael Hoolihan & Ors on behalf of the Gugu Badhun People #3. The Native Title Applicant in QUD 777 of 2019 opposed the interlocutory application. Mr Kerr specifically sought the following orders: 1. that Gungalgunnu/Gunglinguns apical decendent Lawrence Flinders Kerr. be a joiner to the proceeding as sovereign nation Gungalgunnu/Gunglingus People, to speak for country in relation to land and waters, that through continuity and modern adoptions, give rich knowlegde, that will support the ongoing enjoyment, and practice of culture, customs, spitituality, in sharing with modern adoption as a untied social Australia. 2. In support of the sovereign nation Gunglinguns/Gungalgunnu, and as a Estate of Gugu Badhunun People Country, and seeking justice for this interlocutory Order to join the proceeding in protecting the intregity of Gunglinguns/Gungalgunnu sovereignity, the Court may seek its own Orders to the adopted Estate of Gugu Badhun Country. If factural evidence to Gunglinguns/Gungalgunnu estate was adopted, would this evidence, give support as a Gungalgunnu/Gunglinguns People, We may have the great percentage of rights and interests rather than Gugu Badhun People #3 application.. 3. Such further or orders or directions as the Court deem appropriate. (errors in original) Background 2 By Native Title Determination Application (Form 1) filed on 19 December 2019, the Native Title Applicant, being Ernest Michael Hoolihan, Harry Gertz, Narda Kennedy, Hazel Illin and Elsie Thompson, applied for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth). 3 Materially, the Form 1 described the claim area the subject of these proceedings in Attachment B as: Commencing at intersection of the western boundary of the Upper Burdekin River sub catchment area (Sub Number 1201) and the north western boundary of Lot 575 on Plan PH219 and extending generally northerly along the western boundary of that sub catchment area to its intersection with the northern boundary of the Gregory Developmental Road reserve, also being the southern boundary of the external boundary of the native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002); then generally easterly and generally south easterly along the northern boundary of the Gregory Developmental Road reserve to its intersection with the centreline of the Clarke River; then generally south westerly along the centreline of that river to its intersection with the northern boundary of the external boundary of the native title determination QUD80/2005 Gudjala People (QCD2014/006), being a line joining Longitude 145.464464° East, Latitude 19.397699° South and Longitude 145.238141° East, Latitude 19.315069° South; then generally north westerly and generally westerly along the northern external boundary of that determination to its intersection with the western boundary of the Upper Burdekin River sub catchment area, then generally northerly along the western boundary of that sub catchment area back to the commencement point. 4 This application specifically excludes all land and waters subject to: Native title determination QUD85/2005 Gugu Badhun People #2 (QCD2012/002) Native title determination QUD80/2005 Gudjala People (QCD2014/006) 5 The claim area is located between previous determination areas in Gugu Badhun #2 claim (QCD2012/002) and Gudjala People Core Country Claims #1 and #2 (QCD2014/006 and QCD2014/007). 6 The notification period under s 66 of the Native Title Act was from 3 June 2020 to 2 September 2020. During this period Mr Kerr filed a Notice of Intention to Become a Party to an Application (Form 5), and joined the proceedings as a respondent. 7 On 16 June 2021 the Native Title Applicant filed an interlocutory application to remove Mr Kerr as a party from the Gugu Badhun #3 claim. I delivered Judgment in Hoolihan on behalf of the Gugu Badhun People #3 v State of Queensland [2022] FCA 965, and ordered that: 1. Pursuant to sections 84(8) and 84(9)(b) of the Native Title Act 1993 (Cth), Mr Lawrence Flinders Kerr cease to be a respondent party to the Gugu Badhun Native Title Claim (QUD777/2019). 8 Mr Kerr filed the present interlocutory application 87 days after delivery of that judgment on 5 December 2022. On the same date he filed an affidavit in support of the interlocutory application in which he deposed, inter alia, that: He was the Senior Elder of three apical Sovereign Countries, Gungalgunnu (Gunglinguns) Country or "Red Dress People", area; Pelican Range, Warrina Plains, Lake Lucy, Valley of Lagoons, Greenvale Station, and area surrounding, west, east, south portions. He had applied to North Queensland Land Council (NQLC) for assistance "for a land claim to area Gugu Badhun #3 QUD777/19 before the Court application, as Gungalgunnu People". 9 He further deposed: 3. Gungalgunnu apical Kitty, adopted name through colonal occupation, born Lake Lucy 1865, also my greatgrandmother Rose, born Lake Lucy 1800's. Gungalgunnu (Gunglinguns) Country described at (1). 4. We Gungalgunnu People believe, We are a sovereign country, with supreme power and authority over lands and waters to our traditions of culture, customs, spirituality, that are different from any others, as sovereign Gungalgunnu (Gunglinguns) People. 5. The above at (4) in 2022 Gungalgunnu peope still practice and enjoy, and pass down our traditional strong values of country for future Gungalgunnu children. 6. In this adopted continuity, We Gungalgunnu (Gunglinguns), must be accepted as fact, through anthropologist evidence, and others who have by testimony for connection to other land claim. 7. Gugu Badhun #2 determination have taken in the Gungalgunnu (gunglinguns) sovereign Country as part of Gugu Badhun call a part of their estate. How can One sovereign nation takw another estate (Gungalgunnu) and call it Gugu Badhun Country? 8. Facts of modern adoption to Native Title as practiced today and as I discovered wheather correct or not. Anthropology, anthropologist make the findings, and lawyers decide wheather to argue, even if there is evidence that suggest otherwise. 9. The argument for integral Form 1 application passing the registration Test, must apply to a review, in seeking the Gugu Badhun estate of the Gunglinguns or as We know it Gungalgunnu, however the handed down name came. 10. The Guru Badhun #2 Determination testify Gunglinguns as their estate and being Gungalgunnu sovereignty, to Gugu Badhun estate, there must be considered two arguments, a Country Claim over Guru Badhun #3 or argue to be a joiner as a Respondent. Economic savings, Gugu Badhun People #2 and #3, recognise people's to their estate, namely Gunglinguns/Gungalgunnu sovereignty considered in an agreement to recognise and legally litigate mutural outcomes. 11. As in good faith, I have on the 27 October 2022, put in an application for assistance to North Queensland Land Council/RNTBC a Land Claim over the Gugu Badhun #3 Area. 12. In fairness to justice and possible discrimination of a Gungalgunnu Sovereignty that was adopted Estate of Gugu Badhun Country, it must be argued that the Guru Badhun adopted eatate, are by Native Title Act 1993 (cht) have rights and interests over lands and waters to the Gugu Badhun #3 application, moreso with factural tastimony to Gungalgunnu/Gunglinguns adopted estate. 13. Numbered Documents testify Gungalgunnu/Gunglinguns connection 10 On 7 February 2023 I ordered Mr Kerr to provide evidence identifying when the evidence relied upon in support of his joinder became available to him. Mr Kerr's affidavits filed on 10 March 2023 (but dated 28 February 2023) and 11 April 2023 indicate that Mr Kerr primarily relies upon long-held personal knowledge. Nothing in Mr Kerr's affidavit material suggests that he relies upon evidence that was not available to him on 7 April 2022 when the Applicant's interlocutory application for his removal was heard by the Court. Summary of Submissions 11 Mr Kerr was self-represented and provided written and oral submissions. He submitted in summary as follows: He originally sought help or assistance from NQLC to assess a possible Gungalgunnu application on 21 October 2021. NQLC has not provided him with assistance despite repeated applications. Mr Kerr's great-great grandmother will never know her traditional name. Kitty is his Nagaja adopted name. Gungalgunna "Ghost People" were custodians to the area of a large size, which took in plains, billabongs, river courses, sea views, lakes which exist today and exclusive knowledge of dream time. He provided maps where he believed the Gugu Badhun and Gungalgunnu claims should be positioned. There is very little information in the ethno-historical record about the names or location of Gugu Baghun local estate or residence groups within the research area. The 'Red Dress People' or 'Gungalinguns' were a Gugu Baghun local group who were said to live in the Pelican Range and on the western side of Greenvale Station. He tried to introduce the Gungalinguns people to NQLC before the determination. He and some others introduced themselves as Gungalgunna person. We must consider the persons who inhabited the claim area at the time of effective sovereignty, were members of one or more communal, normative, manburra societies. He provided a letter from Joann Boyd setting out cultural information. 12 The Native Title Applicant submitted in summary as follows: Mr Kerr's joinder application was an abuse of process because it was an attempt to relitigate issues previously determined by the Court when adjudicating upon the applicant's interlocutory application to remove Mr Kerr as a party. Re-litigation of a matter previously determined, as between the same parties and their privies, was a recognised category of abuse of process. The particular instance of oppression arising from Mr Kerr's Joinder Application was that it was not based on new evidence. It was not beyond possibility that a party once removed from a native title proceeding could later be rejoined on the basis of new evidence (for example, where a party had purchased a new property interest which stood to be affected by a determination), provided that the interests of justice otherwise favoured joinder. The order removing Mr Kerr determined the issues then in dispute between him and the Applicant, and may only be varied upon a change of circumstances. None of the affidavit material relied upon by Mr Kerr justified a departure from the findings made by the Court in earlier proceedings for his removal. In the event the Court dismissed Mr Kerr's interlocutory application, the Applicant sought an order under s 43 of the Federal Court of Australia Act 1976 (Cth) and s 85A Native Title Act 1993 (Cth) that Mr Kerr pay the Applicant's costs of the interlocutory application on the basis that: (a) Mr Kerr's failure to adduce the evidence he now relies upon in the earlier proceedings for his removal was unreasonable; (b) Mr Kerr is in breach of his obligations under Federal Court of Australia Act 1976 (Cth) ss.37M and 37N because his Joinder Application raises the same, or substantially similar, issues to those before the Court when the Applicant applied for his removal; and (c) to the extent the Court accepts the Applicant's contention that Mr Kerr's Joinder Application is an abuse of process, conduct of a party which is an abuse of process is unreasonable conduct within the meaning of s.85A(2) of the Native Title Act 1993 (Cth). Relevant Evidence Evidence of the Native Title Applicant 13 The Native Title applicant filed and relied upon the affidavit of Cheryl Ann Thomson, filed on 28 March 2023. Cheryl Thomson 14 Ms Thomson is a solicitor employed by NQLC and solicitor on the record for the Native Title Applicant in this proceeding. 15 Annexed to her affidavit was a letter dated 27 March 2023 to Mr Kerr explaining the reasons for his removal as a respondent. 16 In that letter it explained the procedural history of the matter involving Mr Kerr. 17 The letter referred to the Judgment of 19 August 2022 at paragraph [54]: I am not persuaded that Mr Kerr has sufficiently demonstrated an interest in the Gugu Badhun #3 claim area which may be affected by determination in these proceedings. Consequently, I am not satisfied that Mr Kerr has a tenable defensive claim to justify his continuing status as a respondent. 18 The affidavits in support assert native title interest in the Gugu Badhun #3 claim area that were, or should reasonably have been, known to you at the time of the hearing of the applicant's interlocutory application for Mr Kerr's removal on 7 April 2022. 19 The letter also stated to Mr Kerr that it will seek costs.