Case: Dudzinski v Centrelink [2003] FCA 308
Outcome: referred to
Assuming that there is power to set aside the judgment in the present case I would not exercise the broad discretion conferred in favour of the applicant on the motion. It is well settled that, although broad, the discretion conferred by O 35 r 7(2)(c) should be exercised in a judicial manner and only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11] . This guideline is based on the principle of finality of litigation which counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be reopened for consideration and set aside. 18 One of factors to take into account is whether there has been any satisfactory explanation or realistic attempt to comply with the orders which were made more than 6 months ago. I am not satisfied in the circumstances of this case that any satisfactory attempt was made to comply with the orders and file a new application or to have the orders vacated with the consequence that the dismissal orders have come into effect. 19 It is imperative in this case that the overlap issue be resolved as soon as possible in order to enable resolution of not only these claims but also other claims in the area. At the Western Land Summit held on 26 March 2006 the applicant had executed agreements with the Budjiti, Boonthamurra and Wangkumarra applicant, with the consequence that, on their face, these agreements resolved the overlaps between the applications. These agreements had been filed in Court in support of the orders sought by the applicant in each matter and made on 26 April 2006. 20 Because the directions to the applicant to file a new application were part of a cluster-wide strategy that required the resolution of overlaps, it is important to ensure their efficacy. It was made perfectly clear on 26 April 2006 that the claims would be dismissed and that a new application had to be made. There was no application to prevent the dismissal made prior to 2 November 2006 despite an inconclusive meeting of the claim group on 5 August 2006. That meeting could not proceed as an authorisation meeting because of the inability of those present to agree who were the relevant Kullilli People. 21 If the present applications were to be reinstated it would create an overlap with a new application filed by the Boonthamurra People in response to orders made in their application and it would slow the progress of the application and result in overlapping applications being programmed for hearing, which is a consequence to be avoided. 22 On the other hand, if the application for reinstatement is dismissed the Kullilli People can bring fresh proceedings, which are properly authorised under the Native Title Act 1993 (Cth), for the recognition of native title which reflect the agreements identified above and which will remove the doubts inherent in the present circumstances. 23 There is real doubt surrounding the question whether there has been proper authorisation in relation to a number of matters, including the appointment Messrs Drakopoulos Black and the revocation of the instructions to QSNTS. It is therefore desirable in the interests of certainty and resolution of the claims in the cluster that there be a new and clear authorisation to the future progress of these matters. 24 Accordingly, in these circumstances and for the above reasons, I dismiss the application for reinstatement and refuse the application to set aside the order which came into effect on 1 November 2006. I make no order as to costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 13 April 2007 Counsel for the Applicant: Mr P.B. Ryan Solicitor for the Applicant: Drakopoulos Black Solicitor for the Respondents: Crown Solicitor Date of Hearing: 30 January 2007 Date of Judgment: 13 April 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/512.html