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[2009] FCA 236
procedural. Orders 2 to 9 made on 5 March 2009 were vacated. The applicant was directed to provide specified historical and anthropological material by 27 March 2009 and 17 August 2009, file an affidavit...
The Jangga People had repeatedly failed to provide material explaining their native title case. The Court was critical of the delay and the way the extension application was prepared, but decided not to end the case at that point. It gave the applicants one final opportunity, with staged deadlines and a provision for dismissal if key orders were not met. The applicants also had to pay specified respondents' costs of the motion. The judgment did not decide whether the Jangga People could prove native title.
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2,292 words · generated 30/09/2026
This was an interlocutory case-management decision in long-running native title proceedings, not a determination of whether the Jangga People held native title. The claim began in 1998. By the hearing of the extension application in March 2009, Rares J recorded that no proper particulars, anthropological evidence or connection material had been served on the respondents or filed with the Court: [3].
2 cited instruments linked from this judgment.
A set of orders made on 7 March 2008 required the applicant to provide historical and anthropological material by 9 March 2009. The material was not required to take the form of expert evidence, but it had to articulate the essence of the claim: [5]. Non-compliance would lead to dismissal unless the Court otherwise ordered.
The applicant sought an extension after it became clear that the deadline would not be met. The evidence described disruptions during the transfer of responsibility between land councils: solicitors with carriage and an anthropologist left the Central Queensland Land Council, and relevant files did not reach the Northern Queensland Land Council until about 21 July 2008. Existing material was characterised as internal working reports rather than documents prepared for contested litigation: [7]. The Land Council also described difficulties finding an available anthropologist and obtaining work within court-ordered timeframes: [7]-[8].
Dr Taylor was engaged to produce a report, but the initial scope of his work was limited. It addressed matters including whether a pre-sovereignty normative society could be identified, the position of named apical ancestors at sovereignty, and genealogies. It did not initially include a detailed account of continuity of connection: [9]. At the hearing on 5 March 2009, the Court heard evidence that the initial report could be delivered by 23 March, and that the remaining material might be delivered later: [10].
The Court granted further time, but required staged production. The first group of matters was due by 27 March 2009; the remaining material was due by 17 August 2009. The orders also required an affidavit attaching relevant contracts, subject to any claim for legal professional privilege, and describing the steps proposed to comply with the later deadline. Failure to comply with specified orders would result in dismissal the following day unless the Court otherwise ordered: orders 2, 3, 5 and 6.
The ruling also addressed costs. The applicant was ordered to pay the State's and Mount Isa Mines Limited's costs of the motion. The Northern Queensland Land Council had to show cause why it should not also be ordered to pay those costs: orders 4 and 7. The Court did not determine the substantive claim or make findings about the existence of native title.
The judgment balances two concerns: persistent failure to comply with court directions and the interests of justice in allowing a claim to be heard on its merits where the opposing parties had not shown irremediable prejudice.
Rares J described the delay as serious. The claim had remained without proper progress for more than a decade, and the applicant had repeatedly failed to provide a coherent account of its case: [15]-[17]. The Court noted that potential witnesses with knowledge of connection, or lack of connection, had died during the delay: [15]. The judge also said that the Court had no idea whether the claim could be made out, because the necessary material had not been produced: [16].
That criticism did not, however, lead to immediate dismissal. The State and AgForce respondents opposed the extension, but could not identify prejudice that could not be addressed by a costs order. The AgForce respondents did not seek costs because they were funded by the Commonwealth: [14]. Rares J emphasised that the Court's role was not simply to punish non-compliance by preventing a merits determination where no substantive prejudice was suffered: [15]. He also invoked the duty to do justice between the parties: [19].
The Court nevertheless treated the extension as a final indulgence, granted reluctantly. The judge considered that persistent default could justify dismissal and noted the availability of a summary result under Order 35A of the Federal Court Rules: [18]. The key difference was that, on this occasion, the Court imposed concrete milestones, including an early disclosure date and an affidavit addressing the contractual arrangements and planned steps for completion. The orders were designed to make further delay measurable and to provide a consequence for failure.
The costs decision reflected the way the application had been prepared and conducted. The motion was filed late, after it had become apparent that the deadline could not be met. Initially, the applicant sought an extension to 26 June 2009 without evidence showing that all required material could be supplied by then. Nor had the applicant initially proposed that the limited report be given to the respondents promptly: [22]-[24]. The hearing was prolonged by resistance to giving a workable timetable, and the Court had to prompt further enquiries about when Dr Taylor could complete his report: [23], [26].
The Court considered that a properly prepared application would have included a concrete timetable based on enquiries made in advance: [25]. Given the applicant's conduct and the costs incurred by the State and Mount Isa Mines, Rares J ordered the applicant to pay those costs under s 85A(1) of the Native Title Act and s 43 of the Federal Court of Australia Act: [27]. The separate direction to the Land Council to show cause left open whether it too should bear the costs, having regard to its apparent responsibility: [27].
The judgment does not purport to change the law of native title, the interpretation of s 223, or the general principles governing dismissal for procedural default. It applies existing procedural powers to the history and evidence before the Court.
Before this ruling, orders made on 7 March 2008 required the applicant to serve material by 9 March 2009, with dismissal in default unless the Court otherwise ordered: [5]. The Court had also made an order requiring an affidavit about the applicant's ability to comply and provision to relist the matter if compliance appeared unlikely: [5]-[6].
After this ruling, the earlier operative orders were vacated and replaced by staged requirements. The first tranche had to address presence in the claim area at sovereignty, identification of a relevant society, the locations, dates and circumstances of eight apical ancestors, and the genealogy of Charlie Tears' apical ancestor: order 2. Other relied-on historical and anthropological material was due by 17 August 2009: order 3. The Court clarified that the material did not have to be expert evidence, provided that all material together addressed the matters relied on to satisfy s 223: note to orders.
The judgment's cited authorities support its procedural reasoning, but the reasons do not set out a comprehensive test for extensions of time. Rares J cites R v Lawrence for the observation that justice delayed is justice denied: [15]. He cites Queensland v JL Holdings Pty Ltd for the proposition that the Court's ultimate role is to do justice between parties: [19]. On costs, he refers to his discussion of the relevant principles in Birri Gubba (Cape Upstart) People v State of Queensland and cites Knight v FP Special Assets Ltd in connection with the Land Council's apparent responsibility: [27]. The judgment does not describe any of these authorities as having been overruled or altered.
The practical significance is therefore case-specific. The orders demonstrate how a court may respond to prolonged procedural default by combining a last extension with precise deadlines, documentary accountability, a conditional dismissal consequence and costs. The decision is not a merits ruling and does not establish that the applicant had, or lacked, native title.
At [15], Rares J stated that the Court should not punish litigants by denying a merits hearing where opponents suffer no substantive prejudice. In plain English, procedural failure mattered, but it was not automatically decisive. The Court weighed the history of default against the impact of ending the case at that stage.
At [16], the judge said the claim had not appeared to progress beyond formal amendments and that he did not know whether there was a native title case to be made out. This describes the Court's lack of information, not a finding that the claim was weak or invalid. The applicant had not yet provided the material needed to assess its case.
At [17], Rares J said that the defaults were not then treated as recognition that there was no case, but warned that persistent failure could eventually support that inference. The distinction is important: the Court did not draw the inference, but identified the potential significance of continued non-compliance.
At [19], the judge explained that he had decided, reluctantly, to give the applicant “one last and final chance”. This captures the decision's conditional character. The Court did not excuse the past delay; it allowed a final opportunity while imposing stringent terms.
At [25], the judgment states that a proper extension application should have included a concrete and realistic timetable based on proper enquiries. In practical terms, an application for more time should be supported by reliable information about what remains to be done and when it can be completed. The Court regarded the absence of that preparation as a reason the motion was unsatisfactory.
The note to the orders is also significant. It says the material could be sufficient without being expert evidence, so long as the combined material addressed the matters relied on to satisfy s 223. This meant the procedural requirement was directed to identifying and explaining the applicant's case, rather than mandating a particular evidentiary form at that stage.
The decision is most relevant as a procedural example where a party has repeatedly missed case-management deadlines, has not provided enough information for opponents to understand its case, and seeks an extension after the consequences of default are already specified. The features Rares J focused on included the age of the proceeding, repeated earlier attempts to obtain the material, the lateness of the motion, and the lack of an initially supported timetable: [3]-[12], [22]-[26].
It is also relevant where the Court must consider whether to dismiss a claim or permit a merits hearing despite serious delay. In this case, the opposing parties could not identify prejudice that could not be addressed by costs: [14]. That was one factor in the Court's decision, not a universal rule that absence of demonstrated prejudice requires an extension.
For applications to extend time, the judgment highlights the practical importance of evidence showing what work remains, who has been engaged to do it, and when it can realistically be delivered. The Court criticised the failure to make timely enquiries and the proposal to extend to a date that had not been properly considered: [22]-[26]. It then required an affidavit detailing contracts and proposed steps: order 5.
The decision should not be read as guaranteeing a further extension after default. Rares J described this as the applicant's last and final chance and said persistent default was a recognised basis for dismissal: [18]-[19]. Nor does the judgment decide the evidentiary requirements for proving native title in a final hearing. Its orders concerned the provision of material sufficient to articulate the case at that procedural stage.
The supplied judgment contains no information about how later courts treated this decision. It therefore does not support a claim that the ruling was followed, distinguished, approved or criticised in later cases.
The authorities discussed in the reasons are earlier authorities, not later treatment of McLennan. Rares J cited R v Lawrence in discussing the effect of delay: [15]. He cited Queensland v JL Holdings Pty Ltd for the Court's role in doing justice between the parties: [19]. He referred to Birri Gubba (Cape Upstart) People v State of Queensland as a prior discussion of costs principles and cited Knight v FP Special Assets Ltd concerning the Land Council's apparent responsibility for costs: [27].
Those citations show the sources Rares J invoked in reaching his decision; they do not establish how subsequent courts have used this judgment. Any assessment of later treatment would require later judgments or other legal materials, none of which are included in the supplied text.
The judgment left the substantive native title issues unresolved. It did not determine whether the relevant society existed at sovereignty, whether the named ancestors were connected to the claim area, whether continuity was established, or whether the applicant could satisfy s 223. Those matters were to be addressed through the ordered material and, if the litigation continued, determined later.
The Court also left open whether the Northern Queensland Land Council should pay the costs. The Council was directed to show cause by affidavit: order 7. The reasons express a provisional view that the Council appeared responsible for the costs, but the order required it to respond before any further costs determination: [27].
The order's conditional dismissal consequence also preserved the possibility of a later application to the Court. It stated that the matter would stand dismissed for non-compliance unless the Court otherwise ordered, and gave any party liberty to apply on three days' notice: orders 6 and 8. The judgment does not explain what circumstances might justify relief from that consequence.
Finally, the judgment does not supply later evidence about whether the ordered material was delivered, whether the claim proceeded, or whether the parties reached a resolution. No conclusions about those subsequent events can be drawn from these reasons.
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REASONS FOR JUDGMENT 1 This is a motion seeking an extension of the time for the Jangga People, the applicant, to provide proper particulars of how they propose to establish the matters required by s 223 of the Native Title Act 1993 (Cth). 2 I heard the motion on 5 March 2009 and made an order vacating orders 2 and 3 made on 7 March 2008. Those orders required the Jangga People to provide the particulars by 9 March 2009 and in default of compliance the proceedings would be dismissed. I also made on order extending the time for the provision of those particulars with a number of related orders and gave ex tempore reasons. However, I ordered that the parties have the opportunity to make submissions on the final form of orders which I would make. These reasons are largely a revision of the ex tempore reasons I gave on 5 March 2009, but they also take account of the parties' suggested revisions and the amendments which I have made to the final form of the orders in light of those suggestions. I have also given the reasons (which I made apparent during the course of argument) for the costs orders that I have made.
Background 3 The Jangga People have been persistently in default of providing anthropological or other connection material in these proceedings over many years. The proceedings were commenced in 1998 but, to date, no proper particulars, anthropological evidence or connection material has been served on any of the respondents or filed in court. Since the matter came before me for the first time as the docket judge, on 26 September 2006, I have made directions on a number of occasions with a view to providing a timetable for the eliciting of that material. 4 Finally, on 7 March 2008, the State of Queensland sought an order bringing this lamentable state of affairs to a head. During the course of that hearing, the Jangga People were represented by the principal solicitor of the Central Queensland Land Council. But because the Commonwealth Government had proposed the merger of that land council's responsibilities with the Northern Queensland Land Council's responsibilities, the principal solicitor of the Northern Queensland Land Council was present as an amicus curiae by telephone. During the course of that hearing, the State applied for an order that relevant connection material be served within one year. The State had sought that period of 12 months as a reasonable period in which to obtain, essentially, detailed particulars of the way in which the Jangga People put their case for the purposes of establishing their claim to native title having regard to s 223 of the Act. There was then discussion about the transition between the land councils that was proposed to take place on 1 July 2008. Because it was anticipated that the Northern Queensland Land Council might experience unexpected difficulties, when it had a chance to assess the nature of the claim and the efforts which were then underway to meet the orders proposed, the principal solicitor for that land council asked that the orders make provision for the matter to be reported on if need be towards late August or early September 2008. This had regard to the fact that that land council was taking over about 19 active claims and that each of them would require individual assessment. 5 Ultimately, I made orders that the Jangga People prepare and provide to the State, and any respondent who so requested, historical and anthropological material on which they sought to rely in support of their claim for a determination of native title by 9 March 2009 (order 2) and that if they did not comply with that order the matter would stand dismissed unless the Court otherwise ordered (order 3). Order 4 made on 7 March 2008 provided that the Jangga People file and serve an affidavit on or before 30 September 2008 as to their ability to comply with order 2 and, if they considered that they were likely not to comply, to cause the matter to be relisted. The orders made clear that the material to be provided by 9 March 2009 need not be in the form of expert evidence but, nonetheless, had to articulate the essence of the Jangga People's claim to establish native title. 6 On 29 September 2008, Mr van der Eyk, a solicitor for the Northern Queensland Land Council, swore an affidavit in which he expressed the view that, based on advice by a consultant anthropologist, it was not likely that the Jangga People would be able to comply with order 2 made on 7 March 2008. When the matter came before me on 17 October 2008 I made an order that if the Jangga People wished to vary orders 2 and 3 made on 7 March they should file and serve a notice of motion and any affidavits in support. 7 On 17 February 2009 the Jangga People filed a motion seeking a variation of orders 2 and 3 made on 7 March 2008 to have the time for compliance extended to 26 June 2009. Mr van der Eyk swore affidavits on that day, and 4 March 2009, identifying difficulties that had occurred in the transition period before the North Queensland Land Council assumed responsibility for the matter. Those problems included that the solicitors with carriage of the matter in the Central Queensland Land Council and its anthropologist all ceased their employment there in about April 2008 and that the relevant files were not received by Mr van der Eyk or the Northern Queensland Land Council until about 21 July 2008. He noted that, having reviewed the anthropological materials collected by the Central Queensland Land Council, all of those materials were properly characterised as internal working reports and that they had not been drafted for submission to other parties in the contested litigation. He also pointed to difficulties in, first, engaging anthropologists who were available to undertake work in native title claims and, secondly, in having them comply with timeframes set by court orders. 8 Mr van der Eyk deposed that from October 2008 the North Queensland Land Council expedited its search for a consultant anthropologist who was prepared to agree to review and co-ordinate the existing evidence and to conduct the necessary additional research to be in a position to report within a deadline of February 2009. He said that, ultimately, Dr John Taylor was identified as a senior experienced anthropologist consultant who would be available in early January 2009. In November 2008 Mr van der Eyk met with Dr Taylor who, finally, signed a contract to provide a report by 28 February 2009. 9 As revealed in Mr van der Eyk's affidavits the land council, however, did not require the report to be made in respect of all of the matters necessary to comply with order 2 made on 7 March 2008. Rather, the report was required, first, to focus on whether there was evidence of a pre-sovereignty normative society which could be identified, secondly, to examine the situation of named apical ancestors in the claim at the time of the assertion of sovereignty and, thirdly, to detail specific genealogies. Significantly, Dr Taylor had not been required by his contract at that time or, as I understand the position, to date to report in detail as to the continuity of connection. But he has indicated that he is available to undertake that task. 10 The application for an extension of time was listed on 5 March 2009. Mr van der Eyk gave oral evidence that during an adjournment of that hearing he contacted Dr Taylor to ask him when he would be in a position to deliver the report the subject of his current contract. Dr Taylor told Mr van der Eyk that that will be done by 23 March 2009. Mr van der Eyk said that the Jangga People propose that the contents of that report be considered and discussed internally by the Jangga People and the land council so that it can be submitted to the State by 27 March 2009. Mr van der Eyk also said that Dr Taylor had committed himself to Mr van der Eyk that morning, to report by 31 July 2009 on the balance of the material required to satisfy the orders I made on 7 March 2008. Thereafter, Mr van der Eyk proposed, on behalf of the Jangga People, that they meet and approve that further material, together with any other material necessary to satisfy the order, so that it all be filed by no later than 17 August 2009. 11 The position is that the Jangga People are seeking a further indulgence, extending the time in which to put on anthropological material. When the matter was before me on 17 October 2008 the parties who have been described as the AgForce pastoral respondents, filed a written submission detailing the history from December 2002 of the attempts by the Jangga People to put on anthropological material and evidence. On 3 December 2002 the Court was advised that an anthropologist had been engaged, but would take about three years for the research to be completed. In February 2004 at a case management conference before a Deputy District Registrar, the Jangga People then suggested that a full connection report and anthropological material was at least 12 to 18 months away, but thereafter, a summary of a report was provided in June 2004. Later, a number of directions hearings occurred before Dowsett J, in which his Honour was advised that an anthropologist had been commissioned, but his report had not been completed. On 12 March 2007 I was informed by the solicitor for the Jangga People that Dr Paul Gorecki had been engaged to prepare a report and would be undertaking fieldwork. Subsequently, in August 2007, Dr Gorecki advised the Central Queensland Land Council that he was no longer available. In November 2007 other anthropologists were engaged. They were no longer available by early 2008. 12 It was in that context last March that the State applied to have made, in effect, a guillotine-type order to bring the proceedings to some form of finality. And, after discussion with the parties, with a view to setting a timetable that could be met and was fair, I made the orders I have described on 7 March 2008.
Consideration 13 The Jangga People's application for the extension of time is supported by the Isaac Regional Council, the Charters Towers Regional Council, and the Whitsunday Regional Council. Those councils have been working with the Jangga People and the North Queensland Land Council to arrive at indigenous land use agreements. The solicitor acting for the regional councils has deposed that the Jangga People and their land council have been negotiating in good faith, with appropriate professionalism and expedition throughout the mediation process before the National Native Title Tribunal. 14 The State and the AgForce pastoralists do not support the extension. However, they are unable to identify any prejudice that could not be cured by an order for costs in their favour, although the AgForce pastoralists do not seek costs because they are funded by the Commonwealth. 15 It is a truism that justice delayed is justice denied: R v Lawrence [1982] AC 510 at 517B per Lord Hailsham of St Marylebone LC. In these and other proceedings I have been managing together with them, a number of persons with knowledge of the facts have passed away. That is not surprising given that it is over 10 years since they were instituted. But it is a sad thing that people who may have been able to give real evidence about connection, or lack of it, will not be able to do so because there has been no proper attention given to getting these proceedings onto a realistic footing of contested litigation by compliance with timetables. The role of the Court is not to punish litigants for failing to comply with orders by denying them the right to have their case heard and determined on the merits in situations where no substantive prejudice is suffered by their opponents. 16 It is a tragedy that, from all that appears on the record of the Court, a claim first made in 1998 has not appeared to progress at all since it was first filed apart from some simple, but formal, amendments of the claim form. This native title litigation is being conducted in a manner that does not regard compliance with court orders, or the advancement of the claim in a coherent and articulated way, as being the normal course of litigation. At the moment, I have no idea whether the Jangga People have a claim or not, although since September 2006, I have been seeking to manage the proceedings to a position where they can be heard and determined, or at least all the parties can be seized of sufficient information to be able to find a means of resolving the matter for themselves. Regrettably, I have failed in that objective because, at every stage, the Jangga People have defaulted. 17 Nonetheless, at the moment, I do not attribute these defaults to being a form of recognition that there really is no case to be brought. But the position is rapidly approaching where such an inference could be drawn because of the Jangga People's persistent failure to bring forward some form of coherent and satisfactory articulation of how they propose to make out their claim for native title in a way that complies with s 223 of the Act. 18 Persistent default in compliance with directions, however, is a well recognised basis on which the Court may dismiss a claim. Then, the person in default will be seen to have failed to comply with the Court's orders to enable the matter to be brought to hearing and determination. Order 35A of the Federal Court Rules provides a framework under the rules where the court can bring about a summary result. 19 Ultimately, the role of the Court is to do justice between the parties: Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154-155 per Dawson, Gaudron and McHugh JJ. I gave anxious consideration during the hearing as to whether I should have maintained the then current order which would have resulted in the proceedings being brought to an end on the following Monday, 9 March 2009. At the end of the day, I concluded that in the interests of justice the Jangga People should have one last and final chance to get their litigious house in order. I did that with considerable reluctance, because one year before I had set a time in which a realistic attempt could have, and should have, been made to obtain the material necessary to provide the other parties to the litigation with sufficient detail to enable them to know what the case being made was. 20 Even at the hearing on 5 March 2009, despite the Jangga People's admission that they would not be able to comply with order 2 made on 7 March 2008, their representatives presented an entirely unsatisfactory state of affairs for the future conduct of the litigation. No person had been then contracted by the Northern Queensland Land Council to produce the balance of the material required to comply with the existing orders after the limited contract with Dr Taylor had been completed. The order I will make will require the Jangga People to file Dr Taylor's limited material or similar material by 27 March 2009. The Jangga People at that time will have to identify definite bases on which the matter will be progressed, failing which, the matter will be dismissed.
Costs 21 On 5 March 2009, I made orders for the Jangga People to pay the costs of the State and Mount Isa Mines Limited and for the Northern Queensland Land Council to show cause why it should not be ordered to meet those costs on an indemnity or some other basis. Subsequently, the Jangga People submitted that by reason of s 85A of the Act there should be no order as to costs. The State did not seek indemnity costs. Mount Isa Mines has not made any submission. 22 Prior to the commencement of the hearing on 5 March 2009, the Jangga People had not put forward any evidence or timetable that would result in the provision of the particulars they were supposed to supply by 9 March 2009. Initially, the motion sought that the orders for those particulars and the dismissal of the proceedings in default be varied to take effect from 26 June 2009. That was in the context of the evidence that Dr Taylor had only been required to produce a report as to the position up to white sovereignty. The Jangga People and their representative body, the Northern Queensland Land Council, did not suggest that this limited material would be provided to the State and other respondents before 26 June 2009 nor did they provide any evidence that the balance of the material due on 9 March 2009 would be provided by 26 June 2009. This was unsatisfactory for a party in default of the order made one year before. 23 The hearing on 5 March 2009 was protracted because, first, the Jangga People initially resisted providing any time frames in which, ultimately, compliance with the earlier order would occur. Next, they sought an extension of time from 26 June to 17 August 2009. However, had Dr Taylor's report, when received, revealed that they had no claim based on the position at white sovereignty the proceedings would require immediate attention. The Jangga People would then either have to seek a further extension of time (since a timetable set on the presumption that Dr Taylor's initial report were supportive of the existence of the first stage of proof in establishing their claim would no longer be apposite to enabling full particulars to be given by 17 August 2009) or to bring the proceedings to an end (if the Jangga People accepted the report's findings or the respondents decided to oppose further delay and the Court accepted that contention). 24 Again, given that, on the oral evidence before me, Dr Taylor's report will now be able to be finalised by 23 March 2009, this proposal was inappropriate. The Jangga People had chosen to seek a limited report from him knowing that, had it been provided in final form before 9 March 2009, they still would not have complied with the earlier orders. In that context, if they considered having a limited report useful they advanced no reason why, given its subject matter and the circumstances, it should not be provided to the State and other respondents without delay. However, during the hearing they resisted, for a time, even that, until they eventually proposed orders of the nature made today for the provision of the outstanding particulars. 25 A properly prepared and presented application for an extension of time would have addressed a concrete and realistic proposed timetable made after proper enquiries of Dr Taylor to cure the default, particularly having regard to the consequence of the application failing. The respondents would then have been able to assess whether the Jangga People and the Northern Queensland Land Council had taken appropriate steps to ensure compliance, albeit late, with their obligation to identify the basis for the claim. The State and Mount Isa Mines, who resisted the application, were entitled to do so because the relief sought in the motion and the evidence in its support served on them before 5 March 2009 did not disclose a proper basis to vacate the orders which would have resulted in the proceedings being dismissed on 9 March 2009. And the hearing was protracted by the Jangga People's unreasonable failure for a considerable period to propose an appropriate timetable. 26 I am of opinion that the notice of motion was filed far later than it should have been. It was obvious to those representing the Jangga People by, at least, late September 2008 that not only, would they not comply with the order to file material by 9 March 2009, but they had not even engaged an anthropologist to begin work. And, in late November and early December 2008, the scope of work discussed with Dr Taylor and given to him when he was engaged was clearly inadequate for the Jangga People to comply with the order. There was then no prospect that the Jangga People would file the requisite material in time. The motion itself sought an extension to 26 June 2009. But, even that date had been given no proper consideration. Only after I suggested to Mr van der Eyk that he seek instructions as to when Dr Taylor could prepare a final report did he do so. That led to him seeking the longer timetable that I propose to order. 27 This was not a satisfactory way to conduct this litigation, particularly given the nature of the orders made on 7 March 2008. Having regard to the circumstances above, I am of opinion that in the exercise of my discretion under s 85A(1) of the Act and s 43 of the Federal Court of Australia Act 1976 (Cth) I should order the Jangga People to pay the costs of the State and Mount Isa Mines in respect of the notice of motion. I discussed the principles applicable to the exercise of the discretion to order costs in Birri Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659 at [20]-[25]. And, I consider that it is appropriate to require the Northern Queensland Land Council to show cause why it should not be ordered to pay those costs on party/party basis having regard to its apparent (on the material before me) responsibility for the costs I have ordered the Jangga People to pay: Knight v FP Special Assets Ltd (1992) 174 CLR 178. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate: Dated: 18 March 2009 Solicitor appearing for the Jangga People: Mr P van der Eyk
Solicitor appearing for the State of Queensland: Ms K Snape
Solicitor appearing for Whitsunday Regional Council, Issac Regional Council, Charters Towers Regional Council, Ergon Energy Corporation Limited and QLACCA: Mr S Sivarajah
Solicitor appearing for Mt Isa Mines Limited and Colinta Holdings Pty Ltd: Mr S Cobb
Solicitor appearing for AgForce Pastoralists Mr M Boge
McLennan on behalf of the Jangga People
State of Queensland
Orders 2 to 9 made on 5 March 2009 were vacated. The applicant was directed to provide specified historical and anthropological material by 27 March 2009 and 17 August 2009, file an affidavit concerning contracts and compliance steps, and pay the State’s and Mount Isa Mines Limited’s costs of 5 March 2009 and the notice of motion. The Northern Queensland Land Council was ordered to show cause concerning those costs. Non-compliance with orders 2, 3 or 5 would result in dismissal on the next day, unless the Court otherwise ordered.