Waterton on behalf of the Bidjara People v State of Queensland

1. The application for leave to appeal filed on 18 July 2016 in each matter is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 In these applications, one in each proceeding, the State of Queensland, the first respondent, has applied to dismiss the applications of Ms Waterton and Mr Wyman made on behalf of the Bidjara people for leave to appeal the judgments of Jagot J dismissing each of the proceedings (see [2016] FCA 777). For convenience, I will refer to the applicants as either the Bidjara applicants or the Bidjara applications as appropriate. 2 The State's applications are based on the Bidjara applicants' alleged failure to diligently prosecute their applications for leave to appeal, and their alleged repeated failures to comply with orders of the Court. The State has relied upon s 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) (the Act) and r 35.52 of the Federal Court Rules 2011 (Cth) (the Rules). 3 There are two preliminary matters that I should dispose of at the outset. First, s 25(2BB) of the Act requires that applications of this nature are to be dealt with by a single judge, unless one of the circumstances identified in subsection (a) or (b) applies. While the Bidjara applications have already been assigned to a Full Court, I have consulted with the other members of the Court, Barker and White JJ, and we do not consider it is appropriate under s 25(2BB)(b) for the matter to be dealt with by the assigned Full Court. On the same footing, I do not propose to direct that the applications be heard by a Full Court under s 25(2BB)(a). Secondly, the State's applications were filed within the three day limitation period set by r 17.01 of the Rules. Accordingly, it sought an abridgement of the time fixed by that rule under r 1.39. In the absence of any opposition from Mr Jongkind, the lawyer for the Bidjara applicants, I made that order. 4 As to the materials, Ms Wilson, counsel for the State, read and relied upon seven affidavits, which detailed the Bidjara applicants' failure, since late 2016, to comply with various Court orders and to diligently prosecute their applications for leave to appeal. Ms Longbottom, counsel for Queensland South Native Title Services (QSNTS), the second respondent in proceeding QUD 536 of 2016, also relied upon three affidavits which set out a similar procedural history. Mr Jongkind, the lawyer for the Bidjara applicants, did not seek to rely upon any materials to support his clients' opposition to the State's applications. 5 There is, I should note, therefore no evidence before me to explain why the acknowledged failures to comply with various Court orders have occurred, or what prospect the Bidjara applicants have of obtaining the funds necessary to prosecute their applications in the future, should they be allowed to do so. On that aspect, I should note that Mr Jongkind stated from the Bar table that a lack of funding was the cause of his clients' most recent failure to comply with the Court's orders, and he was not able to say when that state of affairs would cease. Nonetheless, he claimed that the applications for leave to appeal were of great significance to the Bidjara people and they were concerned not to see them dismissed. 6 Based on the affidavit material filed in support of their applications, counsel for the State and counsel for QSNTS separately pointed to five occasions in the past four months (approximately) where the Bidjara applicants failed to comply with orders of the Court. They are, in approximate chronological order: first, the failure to comply with Order 9 of the orders of Registrar Belcher made on 2 December 2016 for the Bidjara applicants to advise the respondents of their intentions with respect to their applications by 9 December 2016; secondly, the failure to comply with Order 1 of the same orders to file Part A of the appeal books by 19 December 2016; thirdly, the failure to comply with Order 2 of the same orders to file an outline of submissions and chronology by 19 January 2017; fourthly, the failure to comply with Order 1 of the Full Court orders made on 6 February 2017 to file an application to adjourn the hearing of the Bidjara applications by 10 February 2017; and fifthly, the failure to comply with Order 5 of the Full Court orders of 17 February 2017 to file an outline of submissions by 31 March 2017. 7 As Mr Jongkind correctly pointed out, the fourth occasion above, the failure to comply with the Full Court order on 6 February 2017, was satisfactorily explained at the hearing on 17 February 2017. Nonetheless, even with that default aside, there remain four clear and acknowledged failures by the Bidjara applicants to comply with orders of the Court. 8 To provide some context to these defaults, it is appropriate, at this point, to outline some of the procedural history to these applications. In final form, the two applications for leave to appeal were filed with the Court on 18 July 2016. At a directions hearing held on 18 August 2016, the applications were set down to be heard at a date to be fixed in the February sitting period of the Full Court and programming orders were made to achieve that hearing date. 9 As a result of the Bidjara applicants' failure to respond to correspondence from Registrar Belcher, on 22 November 2016, the State requested a directions hearing for the purposes of ensuring the orderly progression of the applications towards the Full Court hearing, by then fixed for 17 February 2017. That directions hearing was set for 2 December 2016. The Bidjara applicants failed to attend it. In their absence, orders were made directing the Bidjara applicants: to file Part A of the appeal book; to file an outline of submissions and chronology; and to notify the respondent parties in writing by the close of business on 9 December 2016 whether they intended to proceed with their applications. 10 As has already been mentioned, the Bidjara applicants failed to comply with all of these orders. Accordingly, on 20 January 2017, the State filed interlocutory applications seeking to dismiss the Bidjara applications pursuant to r 35.32 of the Rules. Those applications were founded on: the Bidjara applicants' failures to comply with orders of the Court; their failures to attend a hearing related to the applications, namely on 2 December 2016; and their failures to prosecute their applications diligently. The applications were heard by the Full Court on 6 February 2017 (Reeves, Barker and White JJ). 11 On that date, Mr Robinson appeared in person on behalf of the Bidjara applicants and made an oral application to adjourn the Full Court hearing fixed for 17 February 2017. After hearing submissions from all the parties, the Court decided to adjourn the State's applications to dismiss the Bidjara applications and Mr Robinson's oral application to adjourn the hearing to the hearing date fixed for 17 February 2017. It also made other orders, one of which has already been mentioned. 12 At the hearing on 17 February 2017, after hearing further submissions, the Bidjara applications were adjourned to 16 and 17 May 2017 and orders were made directed to ensuring that hearing proceeded. 13 The State's present applications were filed on 11 April 2017. They followed the Bidjara applicants' failure on 31 March 2017, mentioned above at [6], to comply with Order 5 of the orders made by the Full Court on 17 February 2017. At the commencement of the hearing of the State's applications, Mr Jongkind, the lawyer for the Bidjara applicants, applied orally for orders vacating the hearing dates on 16 and 17 May 2017 and suspending the balance of the Full Court orders made on 17 February 2017. 14 Hence, this procedural history and the five specific incidents outlined at [8] above, even allowing for the explanation relating to the orders of 6 February 2017 (see at [7] above), demonstrates the following salient features: (a) First, there have been repeated failures by the Bidjara applicants to comply with orders of the Court over a period of approximately four months. (b) Secondly, despite the allowances made to the Bidjara applicants by the Full Court in the orders made on 17 February 2017, barely six weeks later, those failures recommenced. (c) Thirdly, as a result of those failures, the likelihood is that the two Full Court hearings will be vacated. The first has already occurred, namely the vacating of the 17 February 2017 hearing. Given the application made on behalf of the Bidjara applicants this morning, if the present applications by the State are not dismissed, there is a strong likelihood that the hearing fixed for 16 and 17 May 2017 will also be vacated. If that occurs, there will be a significant loss of public resources, not to mention the time and resources of the parties to these proceedings. (d) Fourthly, the Bidjara applicants have not provided any affidavit material to explain why these failures have occurred. (e) Fifthly and finally, as to the future, there is a complete absence of any material that gives any confidence that these two applications will be prosecuted diligently. 15 In Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 at [63], in the context of an application to dismiss an appeal for failure to comply with the Rules of the Court, the Full Court (Logan and Flick JJ) said: [A] failure to comply with the provisions which ensure that an appeal can proceed may constitute a failure to prosecute an appeal justifying an order that the appeal be dismissed … Whether an order is made that an appeal should be struck out for any such non-compliance with the Rules must necessarily depend upon the facts and circumstances of each individual case, and upon a consideration of those interests relevant to proper administration of justice. (Citation omitted) 16 Bearing in mind those observations and applying them to this case where the non-compliance relates to specific orders of the Court, not merely the Rules of Court, in all the circumstances I have outlined above, I consider it is in the interests of the proper administration of justice that the orders sought by the State be made and that these two Bidjara applications be dismissed. I will make orders accordingly. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.