Dowsett J
In this matter, the Court heard an application for joinder as a respondent by Anthony Mark Henry to the Barada Barna Proceeding. The parties to the Barada Barna Proceeding are Les Budby and Cecil Brown Jnr on behalf of behalf of the Barada Barna People (Applicant) and the State of Queensland (Respondent).
This decision relates to the case of Budby on behalf of the Barada Barna People v State of Queensland (No 3) [2014] FCA 607. The Barada Barna People lodged an application for the recognition of native title rights and interests in 2008 over 16, 440 square kilometres west of Rockhampton.
Dowsett J ordered that Mr Henry be joined as a respondent, on the condition that he not pursue any cross-claim, and file an undertaking to be bound by any agreement between the parties regarding the extinguishing effect of native title rights
Dowsett J acknowledged at [2] that Mr Henry’s significant delay in applying to join the proceedings at so late a stage would normally be disqualifying. His Honour considered the Applicant’s submission that they would be prejudiced by the joinder as it would make negotiations more difficult. His Honour however concluded that this was a result not of late joinder but of joinder itself.
Dowsett J considered the proposition that if Mr Henry were joined and successful in the proceedings, there would be no native title determination. His Honour was of the view that if this were the case, it would be due to his having a valid ground for opposing the determination and not from any prejudice flowing from seeking a late joinder.
His Honour determined that allowing Mr Henry’s claims to be ventilated was the best way for resolving difficult questions within the litigation. However this was on condition that he does not file a cross-claim and that he files a defence immediately to address the Wide People’s overlapping claim.