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[2015] FCA 497
Federal Court of Australia
2015-05-15
North J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Before the Court is a native title application brought by the Wamba Wamba, Barapa Barapa, and Wadi Wadi Peoples. The application has been on foot for 15 years. It has weathered many ups and downs and on many occasions the Court has indicated that unless there was meaningful progress, it would have to be struck out. 2 The application faces the challenge that it is brought by three groups, necessitating both internal organisation within each of the groups and also cooperation between them. That has been a difficult task for the parties which the Court has overseen for many years. 3 On behalf of the applicants, Mr Murray advocated for the continuance of the application persuasively on many occasions. On each occasion he was able to explain the possibility of progress being made, for reasons which were well-articulated and sound at the time. Mr Murray now acknowledges that the time has come to concede that the three groups cannot, in the present circumstances, move the application forward together in an efficient way. 4 The Court has received a letter from Native Title Services Victoria (NTSV) dated 8 May 2015 which outlines its position. NTSV has offered to fund a group meeting, however, this has not taken place and the Court is informed that the arrangements for it have been difficult to finalise. NTSV indicates in the letter that, while it may ultimately provide assistance for the group, such assistance is not part of its 2015-2016 operational plan. This means that there would likely be a delay of at least another year before anything further is done in the application. 5 NTSV's position is relevant because the parties had hoped that their cause would be taken up by NTSV. Given the position expressed, and given the acknowledgement of Mr Murray with regard to the unlikelihood of the three groups working together to progress this particular application, the time has now come for the application to be struck out. 6 The decision to strike out the matter does not reflect upon the existence or otherwise of any native title rights which the group or the individual groups may have. Rather, this is a procedural decision which is based on the fact that the application has been on foot without significant progress for such a long time. The order to strike out the application is made because without progress it would be wrong to keep the parties returning to the Court for no good reason. It remains possible for the groups, either individually or together, to file further applications or to exert any rights which they may have under Victorian legislation, either the cultural heritage legislation or the traditional owners' settlement legislation. 7 In striking out the application, the Court particularly acknowledges the contributions made by Mr Murray for the applicants, and Ms Scalzo and Mr Rawson for the respondents, all of whom have appeared in Court on numerous occasions over the 15-year duration of this matter. 8 The strength, rationality and courtesy of Mr Murray's advocacy are particularly noted. Many passionate advocates appear before the Court, in native title and other matters, but rarely do they present their position with such aplomb and success. Although the order made today may be in a sense unwelcome to the applicants, it follows the acceptance by Mr Murray, that the day has come when this application, through lack of meaningful progress, should no longer stay on foot. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Associate: Dated: 20 May 2015 Schedule No: (P)VID6005/2000 Federal Court of Australia District Registry: Victoria Division: General Applicant: HOWARD JOHN GALWAY Applicant: JIMEALIE JOYCE CARTER Applicant: TREVOR GEORGE NICHOLSON Applicant: GARY JOHN MURRAY Applicant: BARAPA BARAPA PEOPLES' Applicant: WAMBA WAMBA PEOPLES' Applicant: WADI WADI PEOPLE Respondent: WIMMERA MALLEE RURAL WATER AUTHORITY Respondent: SUNRAYSIA RURAL WATER AUTHORITY Respondent: LOWER MURRAY REGION WATER AUTHORITY Respondent: GOULBURN-MURRAY RURAL WATER AUTHORITY Respondent: COLIBAN REGION WATER AUTHORITY Respondent: GRAMPIANS REGION WATER AUTHORITY Respondent: BULOKE SHIRE COUNCIL Respondent: SWAN HILL RURAL CITY COUNCIL Respondent: CHARLES JOHN CASTLE Respondent: COMMONWEALTH OF AUSTRALIA Respondent: BEATRICE CASTLE Respondent: COLIN JOHN MYERS Respondent: SHAAN MARGARET CECILIA MYERS Respondent: GEORGE HERBERT DOUGLAS ROSS Respondent: JILL APRIL CHRISTINA SUTHERLAND Respondent: BARRY THEOBOLD Respondent: HOWARD MARTIN MORROW Respondent: JUDITH ANN MCKERROW Respondent: RONALD THOMAS MCKERROW Respondent: DAVID JOHN MCGRATH Respondent: ALAN GERARD MCGRATH Respondent: PETER JOHN LAAN Respondent: KAYE SANDRA JONES Respondent: NEVILLE JOHN JAMES Respondent: DAWN GARLAND Respondent: RITCHIE THEOBOLD Respondent: BRETT CONDELY Respondent: WILLESDEN GREEN PTY LTD Respondent: JOHN GARLAND Respondent: GRAHAM WILLIAM COSSAR Respondent: H MALCOLM D BENNETT Respondent: A S BEAR Respondent: JS BEAR Respondent: JL ALLEN Respondent: RL ALLEN Respondent: GLENYS ESTELLE COSSAR Respondent: PETER JAMES COSSAR Respondent: LYNETTE COSSAR Respondent: BASIL GREENHAM Respondent: BRUCE CARTER Respondent: S BILLING Respondent: ANDREW ROBERT BLAIN Respondent: RUTH LORRAINE BLAIN Respondent: WILLIAM JOHN BUCHANAN Respondent: ARTHUR WARREN BURGE Respondent: VERNA AMY BURGE Respondent: MARIE CARTER Respondent: CB HARRISON & SONS Respondent: CAMPBELL JOHN CHALMERS Respondent: JANICE BERYL CHALMERS Respondent: KJ CRICHTON Respondent: LD CRICHTON Respondent: IAN GEORGE STUART ELDER Respondent: LEONARD ERIC ELLIS Respondent: COLIN GREENHAM Respondent: MICHAEL JOHN GLOWREY Respondent: JOHN EDWARD GLOWREY Respondent: VICTOR A GITSHAM Respondent: GLENYS JEAN GILLINGHAM Respondent: NEIL CAMERON GILLIES Respondent: EF ENGLISH Respondent: DARYL GREENHAM Respondent: C BILLING Respondent: ROBERT JAMES HEATHERINGTON Respondent: DEBRA MARY HEATHERINGTON Respondent: LINDSAY JOSEPH HODGSON Respondent: BRUCE WARREN HORSBURGH Respondent: CARMEL MARY HORSBURGH Respondent: ROBERT BRUCE HORSBURGH Respondent: J.B. HOSKING Respondent: IAN HOWARD Respondent: JOANNE HOWARD Respondent: TREVOR CLIVE IBBS Respondent: SHIRLEY LORRAINE IBBS Respondent: BARRY WILLIAM JAMES Respondent: HM KANE Respondent: KELLY BROS Respondent: VD KELLY Respondent: LG LEARMONTH Respondent: LM LEARMONTH Respondent: BEVERLEY ANNE LEATHBRIDGE Respondent: DONALD JAMES LEATHBRIDGE Respondent: K LIPP Respondent: V LIPP Respondent: STEPHEN GEORGE MARSHALL Respondent: SUSAN ANGELA JOY MARSHALL Respondent: ALEXANDER DONALD MARTIN Respondent: STEWART REX MCCANN Respondent: WARRACK GRANT MCCANN Respondent: WILLIAM EDMUND MCGRATH Respondent: STUART FRANK SIMMS Respondent: EJ SHIPP Respondent: KR SHIPP Respondent: ML SCHLITZ Respondent: TJ SCHLITZ Respondent: PF SCHLITZ Respondent: MV SCHLITZ Respondent: KC RICHARDSON Respondent: SJ RICHARDSON Respondent: DAVID POLLARD Respondent: DIANNE FAYE PEACE Respondent: GRAEME THOMAS PEACE Respondent: CAROL SUSAN PAY Respondent: KENNETH RONALD PAY Respondent: WILLIAM KEVIN PARSONS Respondent: ANDREW G OXLEY Respondent: GRAEME J OXLEY Respondent: FRANCIS ROBERT O'SHEA Respondent: MAX ALEXANDER NEWSTEAD Respondent: WILLIAM ALISTER MCGREGOR Respondent: LLEWELLYN RALPH MITCHELL Respondent: COLIN HUGH MITCHELL Respondent: LEONARD JOHN MULLAN Respondent: FRANCES HILARY MULLAN Respondent: CATHRYN HILDA TURVEY Respondent: JOHN CUMMINS Respondent: GEOFFREY JAMES TURNBULL Respondent: J TUOHEY Respondent: T TUOHEY Respondent: JOHN MCKELLAR TODD Respondent: C D TODD Respondent: LM STEER Respondent: JM STEER Respondent: MARK DONALD SOUTHERN Respondent: NT SMITH Respondent: JC SMITH Respondent: MARIE REGINA DILLON Respondent: PATRICK FRANCIS DILLON Respondent: GLENDA CUMMINS Respondent: LESLIE JAMES BOND Respondent: DENISE WATERSON Respondent: JOHN WATERSON Respondent: STEPHANIE JOY DILLON Respondent: CAROL TURVEY Respondent: PAMELA C RIX Respondent: HELEN MARGARET SCALA Respondent: SWAN HILL JOCKEY CLUB INC Respondent: SWAN HILL CITY GOLF & BOWLS CLUB INC Respondent: IAN EDWARD TAYLOR Respondent: RITCHIE THEOBALD Respondent: ANNETTE THEOBALD Respondent: ATKINSON'S (WILLOW PARK) PTY LTD Respondent: FRANK RICHARD BIBBY Respondent: DOUGLAS KEITH CHAMBERLAIN Respondent: GLENYSE YVONNE CHAMBERLAIN Respondent: PETER CONDELY Respondent: MALCOLM GRANT FARLEY Respondent: JENNIFER ANN FARLEY Respondent: SAMUEL PHILLIP FARLEY Respondent: FAYE FARLEY Respondent: VG FOOTT Respondent: TM FOOTT Respondent: FREDERICK W DOWDY Respondent: CAMERON BENNETT ENGLISH Respondent: MALCOLM WAYNE KELLY Respondent: DEBRA ANNE KELLY Respondent: NEIL MCKERROW Respondent: HELEN MCKERROW Respondent: ANNETTE CHRISTINA PRIOR Respondent: RONALD GEORGE REAPER Respondent: DAVID M RIX Respondent: LEO HERBERT PARKER Respondent: GJ KELLY Respondent: ROBERT LOATS Respondent: WILLIAM ROWE Respondent: B MACKIE Respondent: KERRIE LEE KNIGHT Respondent: JOHN PETER KNIGHT Respondent: OS PARKER Respondent: EE PARKER Respondent: ALAN GREGORY PICKERING Respondent: HELEN EDITH PICKERING Respondent: JOHN RICHARD TONKIN Respondent: HELEN MARGARET TONKIN Respondent: JOELLDA PTY LTD Respondent: GW KELLY Respondent: PYRENEES APIARIES Respondent: COLIN MANSELL Respondent: POWERCOR AUSTRALIA LIMITED Respondent: ELVA WINIFRED CARTY Respondent: BRIAN FRANCIS CARTY Respondent: LEONARD JAMES DONOHUE Respondent: MID-MURRAY FIELD NATURALISTS CLUB INC Respondent: CORACK PUBLIC HALL INCORPORATED Respondent: ALCHERINGA HOSTEL INC Respondent: LAKE MERAN PUBLIC PURPOSE COMMITTEE Respondent: CHEETHAM SALT LTD Respondent: BROADCAST AUSTRALIA PTY LTD Respondent: TELSTRA CORPORATION LIMITED Respondent: VICTORIAN SALT PTY LTD Respondent: PAUL GRIFFITHS Respondent: RONALD GEORGE DANBY Respondent: DIANNE GRIFFITHS Respondent: GRAHAM DAVID MCLEAN Respondent: LINTON FRANCIS RYAN Respondent: MATTHEW GLOWREY Respondent: GERTRUDE ELVA MCGREGOR Respondent: PAULINE ELIZABETH GLOWREY Respondent: MAXWELL JOHN SEWELL Respondent: GANNAWARRA SHIRE COUNCIL Respondent: JENNY JAMES-BRYAN Respondent: ROD BRYAN
Galway on behalf of Wamba Wamba, Barapa Barapa and Wadi Wadi Peoples
State of Victoria