Bates v Attorney General of New South Wales [2024] FCA 1439

Bates v Attorney General of New South Wales [2024] FCA 1439

Mr McKellar and Mr Hodge did not establish a direct personal interest as required to remain as respondents; their interests as asserted were representative of the Wongkumara People, not personal, and their original interest (as members of an overlapping claim group) no longer exists; accordingly, they should be removed as respondents and have no basis to require provision of the connection material.

Parties
First Applicant: Jennifer Bates; Second Applicant: Graham Clarke; Third Applicant: Jacqueline Dutton; Fourth Applicant: Ronald Dutton Wilson; Fifth Applicant: Michael Gilby; Sixth Applicant: Shannon Gossner; Seventh Applicant: Elizabeth Hunter; Eighth Applicant: Lorna Mitchell; Ninth Applicant: Kim O'Donnell; Tenth Applicant: Maureen O'Donnell; Eleventh Applicant: Mark Sutton; Twelfth Applicant: Warlpa Thompson; First Respondent: Attorney General of New South Wales; Second Respondent: State of South Australia; Third Respondent: Commonwealth of Australia; Fourth Respondent: New South Wales Aboriginal Land Council; Fifth Respondent: Tibooburra Local Aboriginal Land Council; Sixth Respondent: Broken Hill Local Aboriginal Land Council; Tenth Respondent: Annmarie O'Connor; Eleventh Respondent: Telstra Corporation Limited; Twelfth Respondent: Anita O'Connor; Thirteenth Respondent: Amplitel Pty Ltd; Fourteenth Respondent: Norman John Hodge; Fifteenth Respondent: Clancy John McKellar; Sixteenth Respondent: Mt Poole Pastoral Co Pty Ltd
Jurisdiction
Australia
Judgment Date
13 December 2024
Procedural Posture
Interlocutory Application in Native Title Proceedings / Disjoinder (removal of Respondent Parties)
Outcome
Application for removal of respondents allowed; McKellar and Hodge removed as respondents; no order as to costs.
Legal Topics
Disjoinder of Parties, Joinder of Parties, Native Title Act 1993 (cth) Section 84, Overlapping Claims, Representative Vs Personal Interest
Native Title Disjoinder of Parties Joinder of Parties Native Title Act 1993 (cth) Section 84 Overlapping Claims Representative Vs Personal Interest

Case Brief

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Parties

Jennifer Bates

First Applicant

Graham Clarke

Second Applicant

Jacqueline Dutton

Third Applicant

Ronald Dutton Wilson

Fourth Applicant

Michael Gilby

Fifth Applicant

Shannon Gossner

Sixth Applicant

Elizabeth Hunter

Seventh Applicant

Lorna Mitchell

Eighth Applicant

Kim O'Donnell

Ninth Applicant

Maureen O'Donnell

Tenth Applicant

Mark Sutton

Eleventh Applicant

Warlpa Thompson

Twelfth Applicant

Attorney General of New South Wales

First Respondent

State of South Australia

Second Respondent

Commonwealth of Australia

Third Respondent

New South Wales Aboriginal Land Council

Fourth Respondent

Tibooburra Local Aboriginal Land Council

Fifth Respondent

Broken Hill Local Aboriginal Land Council

Sixth Respondent

Annmarie O'Connor

Tenth Respondent

Telstra Corporation Limited

Eleventh Respondent

Anita O'Connor

Twelfth Respondent

Amplitel Pty Ltd

Thirteenth Respondent

Norman John Hodge

Fourteenth Respondent

Clancy John McKellar

Fifteenth Respondent

Mt Poole Pastoral Co Pty Ltd

Sixteenth Respondent

Procedural Posture

Interlocutory Application in Native Title Proceedings / Disjoinder (removal of Respondent Parties)

Legal Issues

  1. 1 Whether the fourteenth and fifteenth respondents (McKellar and Hodge) should be removed as parties pursuant to s 84(8) or s 84(9) of the Native Title Act 1993 (Cth)
  2. 2 Whether their interest is personal or representative
  3. 3 Whether evidential onus of ongoing joinder is satisfied

Ratio Decidendi

Mr McKellar and Mr Hodge did not establish a direct personal interest as required to remain as respondents; their interests as asserted were representative of the Wongkumara People, not personal, and their original interest (as members of an overlapping claim group) no longer exists; accordingly, they should be removed as respondents and have no basis to require provision of the connection material.

Court Disposition

Application for removal of respondents allowed; McKellar and Hodge removed as respondents; no order as to costs.

Orders

  • Mr Clancy John McKellar and Mr Norman John Hodge are removed as the fourteenth and fifteenth respondents to the proceeding.
  • There be no order as to costs.