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Federal Court of Australia |
Last Updated: 25 May 2004
FEDERAL COURT OF AUSTRALIA
Charlie v Cape York Land Council Aboriginal Corporation [2004] FCA 649
GORDON
CHARLIE v CAPE YORK LAND COUNCIL ABORIGINAL CORPORATION, THE STATE OF QUEENSLAND
AND THARPUNTOO LEGAL SERVICE ABORIGINAL CORPORATION
Q 177 OF
2003
DOWSETT J
7 APRIL
2004
CAIRNS
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GORDON CHARLIE
APPLICANT |
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AND:
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CAPE YORK LAND COUNCIL ABORIGINAL CORPORATION
FIRST RESPONDENT THE STATE OF QUEENSLAND SECOND RESPONDENT THARPUNTOO LEGAL SERVICE ABORIGINAL CORPORATION THIRD RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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CAIRNS
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THE COURT ORDERS THAT:
1. The notice of motion filed on 4 March 2004 be dismissed.
2. The applicant pay the costs of the first respondent of and incidental to the application and of the motion.
3. The applicant pay the costs of the third respondent to the motion.
4. The second respondent’s costs of the application and the motion be reserved.
5. Any application by the second respondent for such costs be made within 14 days.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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JUDGE:
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DATE:
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PLACE:
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CAIRNS
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REASONS FOR JUDGMENT
1 This application was filed on 17 November 2003 and came on for directions on 2 December in that year. On that occasion, the applicant was directed to deliver a statement of claim, which he did. A second directions hearing was held on 6 February 2004. The applicant did not appear. Even the most cursory perusal of the statement of claim demonstrated that it was argumentative and did not disclose a viable cause of action. In those circumstances, and given the applicant’s non-appearance, the application was dismissed. Thereafter, there was some indication that his non-appearance had been, if not inadvertent, then at least excusable, although the circumstances were not entirely clear.
2 When I dismissed the application, I indicated that Mr Charlie could apply within 14 days to vacate that order. He did not do so, but on 4 March 2004, I gave him leave to file such an application. On that day, he was represented by Mr Wrenn of counsel who conceded that the existing statement of claim was defective and sought leave to deliver a further statement of claim on or before 1 April. I acceded to that request, and the matter was listed for further directions on 8 April, it being anticipated that submissions would then be heard as to the adequacy of the new statement of claim. The hearing was subsequently advanced to 7 April because I was to be in Cairns on another matter at that time.
3 Yesterday, I was informed that Mr Wrenn was to withdraw and that Mr Knaggs, a Sydney solicitor, had been instructed to act. Both Mr Wrenn and Mr Knaggs have appeared today, Mr Wrenn to withdraw, and Mr Knaggs thereafter. I am grateful to both gentlemen. Mr Knaggs has sought a further extension because he is not presently in a position to file a statement of claim in accordance with the order made on 4 March, nor is there any material before me which indicates the nature of any cause of action. I understand that some application has been made for legal aid. If that is so, then it was made far too late.
4 It is suggested that if the original application is not reinstated, there may be adverse consequences as a result of the operation of limitations legislation. However there is no evidence before me which demonstrates that risk. It is, in my view, not reasonably practicable to identify from the material presently before the Court any cause of action which might successfully be prosecuted, let alone to determine the operation of any limitation provision. I do not mean to say that Mr Charlie may not have a cause of action. I do not know enough about the case to determine whether that is so or not.
5 The matter has been listed for directions on four different occasions, and we are, as far as I can see, no nearer to obtaining a satisfactory statement of claim. Such material as has been provided suggests that the claims are confused and, indeed, difficult to identify as being valid, according to any well-known principle of law. In those circumstances, I have no option but to dismiss the motion filed by leave on 4 March. I so order.
6 As to the question of costs, I order that the applicant pay the costs of the first respondent of and incidental to the original application, which costs were reserved on 6 February this year. I also order that the applicant pay the first respondent’s costs of the proceedings today. I decline to order that the costs be paid on an indemnity basis for two reasons: firstly, at this stage in proceedings, the difference between indemnity costs and party and party costs ought not be great; and, secondly, I prefer to keep the remedy of indemnity costs for far less deserving cases than the present one.
7 I order the applicant to pay the costs of the third respondent of and incidental to the proceedings today. Again, the costs will be on a party and party basis. I reserve the question of the costs incurred by the second respondent of and incidental to the original application and of and incidental to the proceedings today. However, if an application is to be made for those costs, it must be made within 14 days, on notice to the applicant.
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I certify that the preceding seven (7) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justice
Dowsett.
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Associate:
Dated: 24 May 2004
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Counsel for the Applicant:
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Mr A Wrenn
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Solicitor for the Applicant:
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Douglas Knaggs
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Counsel for the First Respondent:
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Mr D Brooks
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Solicitor for the First Respondent:
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Morrow Petersen
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Solicitor for the Second Respondent:
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Crown Solicitor
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Solicitor for the Third Respondent:
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Tharpuntoo Legal Service Aboriginal Corporation
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Date of Hearing:
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7 April 2004
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Date of Judgment:
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7 April 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/649.html