McKellar on behalf of the Wongkumara People v State of Queensland

• Jurisdiction: Australia Federal only
• Judgment Date: 28 September 2020
• Neutral Citation: [2020] FCA 1394
• Court: Federal Court
• Date: 28 September 2020

FEDERAL COURT OF AUSTRALIA

McKellar on behalf of the Wongkumara People v State of Queensland [2020] FCA 1394

File number:	QUD 851 of 2018
Judgment of:	MURPHY J
Date of judgment:	28 September 2020
Catchwords:	NATIVE TITLE – application for joinder as respondent to a native title determination application – applicable principles in relation to joinder – where applicant was represented in the earlier proceedings in relation to the same claim area – where applicant was a party in an earlier proceeding in relation to the same claim area based on the same apical ancestor – whether application constitutes an abuse of process – applicable principles in relation to abuse of process – whether otherwise in interest of justice to allow joinder – application for joinder refused
Legislation:	Federal Court of Australia Act 1976 (Cth) (the FCA) ss 31A, 37M Native Title Act 1993 (Cth) ss 84(5), 86
Cases cited:	Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 Bienstein v Bienstein (2003) 195 ALR 225 Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 Booth v State of Queensland (2003) FCA 418 Brooks on behalf of the Mamu People v State of Queensland (No 2) [2013] FCA 557 Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310 Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 Fulton v Northern Territory of Australia [2016] FCA 1236 Gamogab v Akiba (2007) FCAFC 74; (2007) 159 FCR 578 Hall v Nominal Defendant (1966) 117 CLR 423 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 Johnson v Gore Wood & Co [2002] 2 AC 1 Kokatha People v State of South Australia [2005] FCA 836 Kokatha People v State of South Australia [2007] FCA 1057 Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 Nicholls v State of South Australia [2015] FCA 1407 O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198 Rogers v The Queen [1994] HCA 42; 181 CLR 251 Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 (64,077) State Rail Authority of New South Wales v Codelfa Constructions [1982] HCA 51; (1982) 150 CLR 29 Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370 Timbercorp Finance Pty Ltd v Collins and Tomes [2016] HCA 44; (2016) 259 CLR 212 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901; (2014) 313 ALR 138 Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600 Walton v Gardiner (1993) 177 CLR 378 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Western Australia v Brown (2014) 253 CLR 507 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Wyles on behalf of the Gurambilbarra Wulgurukaba People v State of Queensland [2019] FCA 1502
Division:	General Division
Registry:	Queensland
National Practice Area:	Native Title
Number of paragraphs:	180
Date of hearing:	10 December 2019
Counsel for the Applicants:	Mr A Tokley SC and Ms L Goodchild
Solicitor for the Applicants:	Eddy Neumann Lawyers
Solicitor for Coral King, Prospective Respondent:	Mr T Campbell of Campbell Law
Solicitor for the Eighth Respondent:	Mr T J Wishart of Queensland South Native Title Services
Counsel for the First to Seventh, Ninth to Forty-Second Respondents:	The Respondents did not appear

ORDERS

		QUD 851 of 2018
BETWEEN:	CLANCY JOHN MCKELLAR AND OTHERS LISTED IN THE SCHEDULE ON BEHALF OF THE WONGKUMARA PEOPLE First Applicant ; WONGKUMARA PEOPLE Second Applicant ; MARGARET ANNE COLLINS (and others named in the Schedule) Third Applicant
AND:	STATE OF QUEENSLAND First Respondent ; AIRSERVICES AUSTRALIA Second Respondent ; BARCOO SHIRE COUNCIL (and others named in the Schedule) Third Respondent

order made by:	MURPHY J
DATE OF ORDER:	28 September 2020

THE COURT ORDERS THAT:

1. The interlocutory application dated 15 November 2018 be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1 Before the Court is an interlocutory application by Coral Ann King in which she seeks an order to be joined as a respondent to this proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA). The substantive proceeding is an application for a native title determination brought by Clancy John McKellar and others on behalf of a native title claim group described as the Wongkumara People, comprising the descendants of one or more of 15 apical ancestors named in the second amended application (the Wongkumara application). On behalf of the claim group the Wongkumara applicants claim to have native title rights and interests in relation to a large area in the south-west corner of Queensland and the north-west corner of New South Wales, as shown in the map which is Schedule “A” to these reasons (the Wongkumara...