Dowsett J
In this matter Dowsett J addressed the resolution of problems arising out of overlaps between 3 claims: the Barada Barna claim, which has been on foot since 2008, and two subsequent and partially overlapping claims – one by the Widi People and one by the Barada Kabalbara Yetimarala People (the “BKY People”) – both commenced in 2013.
The Barada Barna applicant proposed that the overlapping areas be excised from the other claims with separate applications to be heard with the Barada Barna claim. The other applicants suggest the reverse - the overlap areas be excised from the Barada Barna claim, and the overlap problems resolved as part of the Widi People and BKY People claims.
Dowsett J concluded that if all 3 claims had been roughly contemporaneous and only recently commenced he would be inclined to adopt the proposal of the Widi and BKY Peoples. However, the Barada Barna People's claim had been on foot since 2008 and the other claim groups must have been aware of it and therefore should have advanced their own claims more quickly.
The Court noted that the Widi People had been joined as respondents to the Barada Barna application, which "effectively encouraged everybody to believe that they were happy to have the overlap problems resolved in the Barada Barna proceedings" [at 4]. Dowsett J further said that the Widi People and the BKY People stood by and allowed the matter to proceed for a very long way without taking any steps to make it clear that they intended to prosecute their own claims over the overlap areas and it would therefore be very unfair to the Barada Barna people to now delay their claim, simply to accommodate claims which ought to have been advanced at a much earlier stage.
Due to the delay that had occurred as a result of the strike out proceedings and appeal, Dowsett J was willing to defer the trial for some months to allow the BKY People and the Widi People to do 'whatever has to be done in order to be ready for trial'. The Court also noted that this would assist the Land Councils in securing any necessary funding in the new financial year and could allow the State to separate out the issue of extinguishment from connection.
The Court adjourned all of the applications and ordered that each Applicant and the State of Queensland attend a case management conference to consider the terms of the proposed draft order on the basis that the matter is to be listed for trail in the second half of 2015.