Malone v State of Queensland

1. The interlocutory application filed 12 February 2020 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 Ms Walker has applied under s 84(5) of the Native Title Act 1993 (Cth) (the NTA) to be joined as a respondent party in this proceeding, a native title determination application brought by the Authorised Applicant on behalf of the Clermont-Belyando Claim Group (the Clermont-Belyando Applicant and the Clermont-Belyando claim, respectively). 2 This is the fourth in a series of similar applications that has been made since the trial of this proceeding commenced approximately eight months ago: Ms King by oral application made and dismissed on 2 December 2019, the first day of the trial; Ms Barnard and others (referred to as "the joinder respondents") by interlocutory applications filed on 4 December 2020 and granted on 9 December 2019 ([2019] FCA 2115 (Malone #1)); and Crown by interlocutory application filed on 12 December 2020 and dismissed on 16 December 2019 ([2019] FCA 2211). 3 It is unnecessary to rehearse the principles bearing on an application of this kind because they were adequately illuminated in those decisions (see, for example, Malone #1 at [3], referring to Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]-[13]). In summary Ms Walker must establish all of the following three matters: (a) that she has an interest for the purpose of s 84(5) of the NTA; (b) that the interest she holds may be affected by a determination of native title in this proceeding; and (c) that it is in the interests of justice for her to be joined as a party to this proceeding. 4 To attempt to establish these three matters, Ms Walker relied upon two affidavits and a separate bundle of documents which she lodged with the Court. 5 Before dealing with that material, it is convenient to briefly recount some pertinent aspects of the history of this proceeding. First, in Malone #1 at [6], [7] and [10], I noted the following: 6 … [This proceeding] was originally filed approximately 15 and a half years ago in 2004 on behalf of the Wangan and Jagalingou People. Since then it has been amended on a number of separate occasions. Apart from noting that is likely to explain some of the delay that has occurred in this proceeding over the past decade and a half, it is unnecessary to record the details of those amendments, or what it was that caused them to be made … 7 By late 2017, when it became apparent that the application was unlikely to be resolved by a consent determination, I made orders aimed at achieving a trial of the proceeding in 2018. That trial was to proceed before Jagot J. For various reasons that are not presently material, it did not take place. In May this year, I set the matter down for a hearing to commence in Clermont in Central Queensland on 2 December 2019, at which time I was to hear evidence from lay witnesses. It was then intended that evidence would be taken from expert witnesses at a later and separate session in 2020. … 10 The trial of this matter commenced on 2 December 2019 and proceeded for five days in Clermont. During that period, evidence was taken in whole or in part from four lay witnesses, three called by the [Clermont-Belyando] applicant and one interposed by the State … 6 Thereafter, the trial continued in Brisbane from 9 to 13 and 16 December 2019 and from 10 to 14 February 2020. During those periods, one witness from the Clermont session completed his evidence and a further nine lay witnesses gave their evidence. 7 Ms Walker filed the present application on 12 February 2020, that being the fourteenth day of the trial. 8 To return to the three matters mentioned above, at the hearing of her application Ms Walker claimed, in brief summary, that she had traditional connections with the Belyando area (which is within the Clermont-Belyando claim area) as a descendent of Lily Brown and George Fraser. In her affidavit filed 9 March 2020, she deposed that she had "[a]ncestry rights and interests for the Belyando [a]reas and rights from marriage and kinship" and that "the prior claim for Belyando is Jagalingu with Jagura/Jaguwarri=Jagurakan skin classes, moieties languages and totemic beliefs with Goondooloo Emu/Kulbai/Kulbaikan connected ties". Further, she claimed that her interest would be affected if a separate determination of native title were to be made in respect of the Clermont-Belyando claim because her native title rights and interests will not be recognised by such a determination. In this respect, she claimed that, over the past 10 years or more, she had attended numerous meetings and spoken to many anthropologists associated with the Clermont-Belyando claim, but "they wouldn't listen" to her. 9 On the first two matters above (see [3(a)] and 3[(b)]), the Clermont-Belyando Applicant submitted that Ms Walker's material did not associate Lily Brown and George Fraser with the Clermont-Belyando claim area, but rather with places to the south of that area, such as Springsure, and, therefore, that whatever interests she had could not be affected by a determination of native title in this proceeding. The State made similar contentions. 10 For the purposes of this application, I am prepared to accept, on a prima facie basis, and without deciding, that Ms Walker has an interest for the purpose of s 84(5) and that that interest may be affected by a determination of native title being made in this proceeding. I am prepared to proceed on that footing because, for the following reasons, I do not, in any event, consider that Ms Walker has established the third of the three matters she needs to establish to succeed in this application, namely that it is in the interests of justice that she be joined as a respondent party in this proceeding (see at [3(c)] above). That being so, her application must fail. 11 First, Ms Walker has not given any explanation for her delay in making this application. None appears in either of the two affidavits that she filed and, despite being given a number of opportunities to provide such an explanation at the hearing of this application, she failed to do so. This failure to provide any explanation for her delay is exacerbated by the fact that it appears from her own materials that she has been aware of the existence of this proceeding and, at least in broad terms, the nature of the claims that were being pursued in it from at least 2008. Furthermore, it appears from those materials and from the affidavit of Mr Nicolas Daza filed by the Clermont-Belyando Applicant in opposition to her application that she has been generally aware that the trial of this proceeding commenced in December 2019 and was proceeding in February 2020. This is particularly significant, in my view, because, as is noted above, she filed her present application on the fourteenth day of that trial. 12 Secondly, I have had regard to the delay and expense that is likely to be caused if Ms Walker were to be joined as a respondent party at this late stage of this proceeding. On this aspect, the State proposed that Ms Walker should only be joined as a party on the condition that she should not be permitted to cross-examine any of the 13 witnesses who have already given evidence at the trial. In my view, this proposal pointedly underscores the dilemma presented by Ms Walker's late joinder application. 13 On the one hand, the sole purpose of her joinder as a party is to allow her to protect the interests which I have assumed, for present purposes, she has in the Clermont-Belyando claim area. However, to achieve that purpose, I accept the contentions of the existing parties that significant delay and expense is likely to be caused to them if some, or all, of those 13 witnesses are to be recalled for further cross-examination. I also consider those consequences will be compounded by the fact that Ms Walker does not intend to engage a lawyer and she will therefore be a self-represented party. So far as I am aware, Ms Walker has no legal training and her conduct of the present application indicates to me that she will have considerable difficulties in conducting that cross-examination and in participating as a party in this proceeding more generally. 14 On the other hand, the sole purpose of Ms Walker's joinder as mentioned above would be significantly, if not totally, frustrated if she were not permitted to test the claims made by the witnesses who have already given evidence at the trial, insofar as those claims may affect her assumed interests. That course would also make it very difficult, if not impossible, to properly assess and determine the nature and extent of her interests vis-à-vis those claimed by the Clermont-Belyando claim group and the joinder respondents. 15 Since the lateness of this application has created this dilemma, I consider it must be resolved in favour of the existing parties. In other words, I do not consider it would be in the interests of justice to join Ms Walker as a party at this late stage of this proceeding when that course is likely to cause such significant delay and expense. 16 For these reasons, Ms Walker's application filed 12 February 2020 must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.