Malone v State of Queensland (the Clermont-Belyando Area Native Title Claim) [2019] FCA 2115

Year: 
2019
Jurisdiction: 
Queensland
Forum: 
Federal Court
Legislation considered: 
Federal Court of Australia Act 1976 (Cth)
Native Title Act 1993 (Cth)
s 84 Native Title Act 1993 (Cth)
s 203BB Native Title Act 1993 (Cth)

Reeves J

This matter concerned two groups of applications that relate to a native title determination application  made by the Clermont-Belyando native title claim group (CB Applicant) over 30,200 sq km of land in Southern and Western Queensland. The claim has an exceedingly long history and is a complex piece of litigation.

Reeves J delivered joint reasons as the 2 groups of applications are closely related:

  1. 3 joinder applications to be joined as respondents in the CB proceedings;
  2. an application by the CB Applicant to prevent Mr Hardie, the lawyer for the joinder-applicants, from continuing to act for those parties.

The CB applicant opposed the three applications. The State of Queensland (State), the main respondent party, neither consented or opposed them.

Background

Originally filed in 2004 on behalf of the Wangan and Jagalingou People, the CB application has a long history of proceedings, reflecting ongoing amendments to the claim.

Most recently, the description of the composition of the claim group in the application had been changed. Six apical ancestors were removed from the group. This affected the joinder application, with the three joinder-applicants claiming to be descendants of members now removed from the claim group.

3 Joinder Applications

On 4 December 2019 Ms Delia Kemppi, Ms Lester Barnard and Ms Linda Bobongie applied under s 84(5) of the Native Title Act 1993 (Cth) (NTA) to be joined as respondent parties in this proceeding.

After considering the history of the proceedings and evidence filed in support of the joinder applications the Court determined that the 3 parties should be joined as:

  • The joinder applicants don't fall into any of the categories that would ordinarily justify refusal:
  • The joinder applicants' apical ancestors had been included in the claim group description until just 3 months prior to this proceeding and this provides each with a strong prima facie case that they may have native title rights and interests in the claim area;
  • the joinder applicants would likely suffer “real and significant prejudice” if they were unable to assert or protect their claimed rights and interests from a native title determination in this proceeding.
  • Apart from the costs and delay that would be occasioned if the trail was to be adjourned as a consequence of their late joinder, neither the applicant, nor the State had pointed to any relevant prejudice.

Application to prevent lawyer from continuing to act for joinder applicants

The CB Applicant applied to prevent Mr Hardie from acting for the three joinder-applicants due to his previous dealings with the claim group 10 years ago in his capacity as Principal Legal Officer of Queensland South Native Title Services (QSNTS).

QSNTS had acted for the Wangan and Jagalingou, and more recently the CB Applicant throughout the life of the application. During the course of the hearing it became clear that QSNTS must have acted for the claim group when it included the apical ancestors of the three joinder applicants. This raised similar concerns about QSNTS’ involvement in the proceedings.

In support of its application the CB Applicant argued:

  • there was a real and sensible possibility of misuse of confidential information; and
  • to ensure the due administration of justice to protect the integrity of the judicial process.

The Court did not consider the CB Applicant made out either of these two bases.

Firstly, the confidential information identified was not confidential or relevant to any of the issues to be decided in the proceedings.

Secondly, the Court considered steps Mr Hardie's law firm had taken to ensure that he had no further involvement in the matter and the effect of depriving the joinder applicants of their choice of lawyer.  In the Court's view, a fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice required that Mr Hardie be prevented from acting for the joinder applicants.

As QSNTS and its current Principal Legal Officer is in a similar position the Court made orders to guide the future representation of the joinder applicants and the CB Applicant.

Orders

The Court ordered that:

  1. Lester Lorraine Barnard, Delia Fay Kemppi and Linda Jane Bobongie be joined as respondents, file a native title determination application with supporting statement of claim and file a defence to the statement of claim in this proceeding.
  2. QSNTS assign a lawyer who has not previously acted for the Applicant in this proceeding to be the solicitor on the record for the Applicant.
  3. No QSNTS lawyer who has previously acted for the Applicant before 20 September 2019 will instruct Counsel in the proceeding
  4. The Principal Legal Officer, Mr Tim Wishart, and the Deputy Principal Legal Officer, Ms Andrea Olsen, of QSNTS will have no further involvement in the proceeding.
  5. Just Us Lawyers assign a lawyer who has not previously acted for the Applicant in this proceeding (as constituted from time to time) to be the solicitor on the record for the Joinder Parties.
  6. No lawyer who has previously acted for the Applicant will instruct Counsel in this proceeding.
  7. The Principal of Just Us Lawyers, Mr Colin Hardie, is to have no further involvement in this proceeding.