Carpentaria Land Council Aboriginal Corp & Ors v Queensland [1998] FCA 919 (22 June 1998)

Last Updated: 7 August 1998

FEDERAL COURT OF AUSTRALIA

Practice and Procedure - final judgment enjoining Shire Council and mining company from proceeding with resumption of native title for road and bridge construction unless Council undertakes to negotiate in good faith - Council's response contingent upon State government funding - inconclusive State election meant Council unable to obtain instructions - whether time for filing and serving undertaking or notice of appeal should be extended.

CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION, VICTOR JACOB, HENRY APLIN AND EDWIN JACOB V STATE OF QUEENSLAND, COUNCIL OF THE SHIRE OF BURKE AND PASMINCO CENTURY MINE LTD

NG 6002 of 1998

JUDGE: BEAUMONT J.

PLACE: SYDNEY

DATE: 22 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6002 of 1998

BETWEEN:	CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION First Applicant VICTOR JACOB Second Applicant HENRY APLIN Third Applicant EDWIN JACOB Fourth Applicant
AND:	STATE OF QUEENSLAND First Respondent COUNCIL OF THE SHIRE OF BURKE Second Respondent PASMINCO CENTURY MINE LTD Third Respondent
JUDGE:	BEAUMONT J.
DATE OF ORDER:	22 JUNE 1998
WHERE MADE:	SYDNEY

ORDERS:

1. The time for the filing and serving of a notice of appeal by any party in respect of the orders made on 3 June be extended up to and including 8 July 1998.

2. The time by which the second respondent may file and serve a written undertaking to the Court in the terms contemplated in the order made on 3 June be extended up to and including 8 July 1998.

3. The costs of the present application should be costs in any appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6002 of 1998

BETWEEN:	CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION First Applicant VICTOR JACOB Second Applicant HENRY APLIN Third Applicant EDWIN JACOB Fourth Applicant
AND:	STATE OF QUEENSLAND First Respondent COUNCIL OF THE SHIRE OF BURKE Second Respondent PASMINCO CENTURY MINE LTD Third Respondent

JUDGE:	BEAUMONT J.
DATE:	22 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

On 3 June 1998, I ordered that, unless the Council of the Shire of Burke ("the Council"), on or before 24 June 1998, filed and served a written undertaking to the Court that it would negotiate in good faith with the Carpentaria Land Council Aboriginal Corporation ("CLCAC") with respect to the taking of native title rights and interests and all consequential matters as there described, and any request for non-monetary compensation, the Council and Pasminco Century Mine Limited ("Pasminco") be restrained from giving effect to the purposes of the taking of those interests and, in particular, from carrying out the road and bridge works described in the notice of intended resumption. Otherwise I dismissed the proceedings.

The matter has subsequently been complicated, in a way that perhaps could not have been foreseen, by the Queensland election on 13 June 1998. I have before me evidence that it is not possible to obtain instructions from the State Government in relation to material aspects of the present matter. I think that it will be fair to describe this as a supervening event in the nature of force majeure and that in those necessatur circumstances, and in the exercise of the appellate jurisdiction of the Court exercised in this instance by a single judge, I should make appropriate modifications to my orders, in effect by way, first of extending the time for the filing of any notice of appeal and, secondly by, in substance, staying my orders for a short period.

In form, that stay should, I think, take the effect of an extension of the time in which the Council may elect to file and serve its written undertaking. The real issue at this point is, in my view, reduced to the question of what is an appropriate time to be allowed by way of extension. If no extension were to be granted, my orders by way of injunction would become effective in two days time on 24 June. It is to be expected that it should be known this week who will be commissioned to form a Government in the State of Queensland and, in those circumstances, an extension of time for a period of seven days would not, I think, be fair to those concerned to advise the State in this particular matter.

In all the circumstances, I have formed the view that it is appropriate to grant an extension of 14 days so that the period from which any injunction would become operative would commence to run on 8 July rather than 24 June. Concurrently with this extension of time, I propose also to extend the time in which any appeal may be brought. I understand, of course, that no such decision has yet been made but an extension up to 8 July is I think reasonable.

ORDERS

In those circumstances, the orders I make are as follows:

1. The time for the filing and serving of a notice of appeal by any party in respect of the orders made on 3 June be extended up to and including 8 July 1998.

2. The time by which the second respondent may file and serve a written undertaking to the Court in the terms contemplated in the order made on 3 June be extended up to and including 8 July 1998.

3. The costs of the present application should be costs in any appeal.

I should indicate that if there is to be an appeal, I would order expedition of that appeal and it should be anticipated that that appeal would be dealt with in the month of July. It would be heard in Brisbane at that time.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated: 22 June 1998

Counsel for the Applicants:	J Griffith
Solicitor for the Applicants:	Andrew Chalk Associates
Counsel for the First Respondent:	D Mullins
Solicitor for the First Respondent:	Crown Law
Counsel for the Second Respondent:	B O'Donnell QC
Solicitor for the Second Respondent:	Allen Allen & Hemsley
Counsel for the Third Respondent:	P McMurdo QC
Solicitor for the Third Respondent:	Blake Dawson Waldron
Date of Hearing:	22 June 1998
Date of Judgment:	22 June 1998