BETWEEN: John Dalungdalee Jones, a beneficiary,
eldest of the Dalungdalee
family representing the beneficiaries of the Estate of Elliott Bennett,
John Dalungdalee Jones being the cousin of Elliott Bennett in the
State of Queensland.
Plaintiff.
AND: The Public Trustee
First Defendant.
AND: The State of Queensland
Second Defendant.
AFFIDAVIT
OF JOHN DALUNGDALEE JONES
I, John Dalungdalee Jones, of 37 York Parade, Spring Hill, Brisbane, in the
State of
Queensland make oath and say as follows:
1.I am the Plaintiff, a beneficiary representing the
other living beneficiaries
namely Carmel Dee Burke, Sharon Lee Davidson and John Elliott Bennett of the
Estate of Elliott Bennett.
2 On the 14th May 2003 at the hearing of the Application by the First and
Second
Defendants to have the claim struck out under rule 171.The question of the
Representative capacity of the plaintiff/respondent arose.
SHEET 1.
……………………………… ………………………../
Deponent. Justice of the Peace.
Affidavit of John Dalungdalee Jones John Dalungdalee Jones
Filed on behalf of the Plaintiff 37 York Parade, Spring Hill,
Form 46 Rule 431. Brisbane Q.4000 T.33001494.
3 The respondent/plaintiff requested an adjournment so that a beneficiary
could replace
John Dalungdalee Jones being the plaintiff representing the beneficiaries
Carmel Dee
Burke, Sharon Lee Davidson and John Elliott Bennett named in the Claim as
the
Beneficiaries of the Estate of Elliott Bennett .
4 Justice Fryberg granted the adjournment with no
fixed time for the Plaintiff to make
the appropriate Application to amend the Claim and Statement of Claim with
costs
of the hearing against the respondent .
5 Mr.Burke, husband of one of the beneficiaries, Carmel
Dee Burke, together with his
son attended the hearing and afterwards conferred with the other beneficiaries
Sharon lee Davidson and John Elliott Bennett to consider the situation.
6 It was decided that it would be appropriate to make
John Dalungdalee Jones
an equal share beneficiary as he is a cousin of the late Elliott Bennett and
a cousin to
to the beneficiaries.
7 On the 16th June 2003, the Agreement by Carmel Dee Burke, Sharon Lee Davidson
and John Elliott Bennett to acknowledge John Dalungdalee Jones as being an
equal
share beneficiary was signed at the Supreme Court Registry and witnessed by
a Justice of the Peace ,an officer of the Registry.
A copy of the Agreement is exhibited marked "A"
8.On the 10th June 1992 Carmel Burke (daughter) Sharon
L .Davidson (daughter) and
J.E.Bennett (son) signed a Statement that
"you (John Dalungdalee Jones) are our cousin and elder of the Dalungdalee
Tribe of
Fraser island, we give you full authority to recover 16,000 pounds that our
father Elly
Bennett earned whilst boxing which was taken from him by the Welfare Department
SHEET 2
…………………………….. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
Deponent. Justice of the Peace.
.
When this money is recovered a percentage will be used to help set up The
Elley Bennett Sports Foundation on Fraser Island
Yours faithfully
Carmel Burke (daughter)
Sharon L. Davidson (daughter)
J.E,Bennett (son). "
A copy of the Statement is exhibited marked "B"
8 On the 14th July 1992,A Statement by the late Roger Elliott Bennett eldest
of the beneficiaries, that John Dalungdalee Jones was his cousin and that
full authority was given to act on his (Roger Elliott Bennett) behalf "to
recover all my fathers, the late (Elley Bennett) monies misplaced under the
Qld. Aboriginal Welfare Funds Act. Also out of any monies when recovered an
X amount of dollars be placed at your disposal to set up (THE ELLEY BENNETT)
Sporting Foundation where ever you wish the Foundation to be .
You , John Jones have my full support and consent to act on any matter
. re. My Father (Elley Bennett) to represent me Roger Elliott Bennett Dalungdalee
(on my Behalf)
Yours Sincerely,
R.Bennett Dalungdalee.
14/7/1992."
This Statement was sent to John Jones, Dalungdalee Elder,
From Roger Elliott Bennett Dalungdalee age 44
By facsimile message sheet from
The Despondency Resource Services, Wedge Wing,
Alice Springs Hospital, Date: 14/7/92.
A copy of the Facsimile is exhibited marked "C"
10 Both Statements were tendered as evidence in the hearing of Supreme Court
of Queensland Writ No. 916 of 1992
SHEET 3.
…………………………………….
……………………….
Deponent. Justice of the Peace.
11.Justice Fryberg directed that the Executors, if any, of the estates of
the deceased
beneficiaries, Roger Bennett and Shiela Little be contacted.
12.On the 19th May 2003, 5 days after the Court hearing
of the 14th instant, which was
adjourned to an unspecified date, I contacted Mr. Bruce Little, a nephew of
the late
Shiela Little, the wife of Elliott Bennett, to enquire as to if there were
any descendants
13. Mr.Bruce Little located a grand daughter, Samantha Millar, who obtained
a Certified
Death Certificate of the late daughter of Shiela Little.
I received the Death Certificate on the 27th June 2003.
Exhibited is a copy of the Death Certificate marked "D".
14.However Mr Bruce Little, discovered that Shiela
Little did have a Will administered
by the Queensland Public Trustee, Rockhampton Office.
15.On the 4th September 2003 Mr. Little traveled from
Bundaberg to meet with me at
Brisbane .I telephoned the Rockhampton Public Trustee Office and spoke with
Joanne Ellis who verified that the Computer File did have a record of Shiela
Little
and that the Queensland Public Trustee was the Executor.
16.I was told that the reference number was 20156741
RKN Det.107 and that Bernadette
was familiar with the case.
17.I enquired as to who the beneficiaries were
18.I was told that that information could only be obtained by a Court Order
19.On the 8th September I wrote a letter to the Office
of the Rockhampton Public
Trustee explaining the situation.
Exhibited is a copy of the letter marked "E".
SHEET 4
.
……………………………….
……………………. Deponent. Justice of the
Peace.
20.Several days later, I received a telephone call
from Deborah Wilson of the Brisbane
Office of the Queensland Public Trustee informing me that they would have
to ask
The beneficiaries of the Estate of Sheila Little to ascertain if they wished
to be
Informed of my request.
21.On the 13th October 2003,I received a CFM2, intervention notice from Deputy
Registrar Mr.Ian Mitchell drawing attention to Practice Direction 4 of 2002
and that
A Request for Trial Date was not filed within the 180 days required.
"Pursuant to paragraph 4 of the direction you must within 21 days of
the date of this
notice show cause pursuant to paragraph 5 why the proceeding should not be
deemed resolved"
Exhibited is a copy of the notice marked "F".
22.On the 31st October 2003 I delivered a letter in
reply to the letter by Deputy Registrar
Ian Mitchell explaining the delay as it had taken a considerable amount of
time to
Discover that in fact the Queensland Public Trustee was the Executor of the
Estate of
Shiela Little.
We, the beneficiaries, do not wish to delay proceedings.
I expect to file our application early November.
Exhibited is a copy of the letter marked "G".
23.I received a letter dated 12th November 2003 from
Ian Mitchell, Deputy Registrar
granting an extension of time until 12/12/03 in which to file a request for
a trial date.
Exhibited is a copy of the letter marked "H".
24.After enquiries made by Carmel Dee Burke, Sharon
Lee Davidson and John Elliott
Bennett, the sisters and brother of Roger Elliott Bennett as to if there existed
a Will
made by Roger Elliott Bennett were unsuccessful I contacted the Office of
.Public
Trustee Alice Springs where Roger Elliott Bennett died March 1997.
I was informed that any records were held at the main Office at Darwin.
On 17th November 2003, I sent a letter to the Public Trustee, Darwin for information.
Exhibited is a copy of the letter marked "I".
SHEET 5.
……………………….
Deponent. Justice of the Peace.
25.As the enquiries are ongoing as to if Roger Elliott Bennett died intestate
or not,
the Plaintiff still acts in a representative capacity pursuant to the express
wishes of the
Statement of Roger Elliott Bennett made on the 14th July 1992, his last recorded
wish.
26.At the hearing of the 14th May 2003, the Plaintiff
stated that as the Notice of Intention
to defend filed by the First Defendant which denies the "allegations"
of the Claim and
the amended Statement of Claim, which includes a denial of "allegations"
of the First
Defendant's own legal documents and the numerous Statutes under which the
Public
Trustee is empowered is not a Defence.
27.The Second Defendant did not file a Notice of Intention to defend .
28.Because of the absence of any Defence, the Plaintiff
was in the process of preparing
an application for a Summary Judgment.
29.As this lengthy Affidavit and the 171 Exhibits
were only completed the day before
the hearing of the 14th May 2003, the Plaintiff tendered the documents as
evidence
which was sworn in .
30.As the Plaintiff is now designated as an equal
share beneficiary, the Claim,
the amended Statement of Claim and the Affidavit filed in Court at the 14th
May
2003 hearing is amended to show that the Plaintiff ,a beneficiary, represents
the other living beneficiaries, pursuant to Orders by Justice Fryberg made
on
the 14th May 2003.
Sworn by John Dalungdalee Jones on day of November
2003, at Brisbane
In the presence of:
……………………………..
…………………………..
Deponent. Justice of the Peace
SUPREME COURT OF QUEENSLAND
REGISTRY:BRISBANE
NUMBER: 2209 OF 2003.
BETWEEN: John Dalungdalee Jones, a beneficiary, eldest
of the Dalungdalee family
Representing the beneficiaries of the Estate of Elliott Bennett,
John Dalungdalee Jones being the cousin of Elliott Bennett in the
State of Queensland.
Plaintiff.
AND: The Public Trustee
First Defendant.
AND: The State of Queensland
Second Defendant.
APPLICATION
TAKE NOTICE that the Plaintiff is applying to the Court for the following
Orders:-
1.That a Summary Judgment for the Plaintiff against the First and Second Defendants
in this proceedings pursuant to Rule 292 of the Uniform Civil Procedure Rules.
2.An Order that the First and Second Defendants pay the Plaintiff's Costs
incidental to
to this proceeding,to be assessed.
This application will be heard by the Court at Brisbane
on at
Filed in the Brisbane Registry on 2003.
Registrar.
If you wish to oppose this application or to argue that any different order
should be
Made, you must appear before the Court in person or by your lawyer and you
shall be
heard. If you do not appear at the hearing, the orders sought may be made
without
further notice to you.
On the hearing of the application, the Plaintiff intends to rely on the following
affidavit:
APPLICATION The Plaintiff, John Dalungdalee Jones
Filed by the Plaintiff. 37 York Parade, Spring Hill Brisbane
John Dalungdalee Jones Telephone: 0733001494
Form 9- R. 32
1.The Affidavit of John Dalungdalee Jones sworn on November 2003.
The Plaintiff estimates that the hearing should be allocated 1 hour.
Signed:
Description: John Dalungdalee Jones, Plaintiff.
Dated:
This Application is to be served on:
The Public Trustee of Queensland
Official Solicitor,
444 Queen Street,
Brisbane Q,4000.
AND:
State of Queensland,
Care of CROWN SOLICITOR,
C.W.Lohe,
11th Floor, State Law Building.
50 Ann Street,
Brisbane Q.4000.
SUPREME COURT OF QUEENSLAND
REGISTRY:Brisbane.
No. 2209 of 2003.
BETWEEN: John Dalungdalee Jones a beneficiary, eldest of the Dalungdalee
Family representing the beneficiaries of the Estate of Elliott Bennett,
John Dalungdalee Jones being the cousin of Elliott Bennett in the
State of Queensland.
Plaintiff.
AND: The Public Trustee
First defendant.
AND: The State of Queensland
Second Defendant.
INDEX OF EXHIBITS
Affidavit of John Dalungdalee Jones sworn on November 2003.
_____________________________________________________________________
EXHIBIT DOCUMENT_________________________________DATE___PAGE
"J52" FILE1 8E/161 Ref.Par.64 amended Statement Claim 7/11/49 1
A number of exhibits have not been shown so as to reduce the size of this web page
"J171" Ref.Par.198 to206 Affidavit,______________________________________8/12/1995_
2
INDEX OF EXHIBITS John Dalungdalee Jones
Filed by Plaintiff Plaintiff
Form 1 R435 37 York Parade, Spring Hill
Brisbane Q 4000 T33001494
Simone Moore,
Senior Trust Officer,
Public Trustee,
For the Northern Territory,
Corner Cavenah and Bennett Streets,
Darwin N.T. 0800.
Dear Ms. Moore,
Your reference 200996,s6x,Estate of Roger Elliot Bennett,
Thank you for your prompt answer.
For your information, the living sisters are
(1) Carmel Dee Burke of 33 Skyline Drive Norman Park,Brisbane Q. 4970 Tel
0738432086,
(2) Sharon Lee Davidson of Flat 5/31 Broadway Street, Woolloongabba,
Brisbane Q.4102, Tel 07 33913201.
(3) John Elliott Bennett who resides with his sister,Sharon Lee Davidson at
her address.
Please find enclosed newspaper articles of 1991 and
1992 pertaining to the Estate of Elliott Bennett, who was one of the main
contributors to the "Welfare Fund"
As can be seen , I am the eldest of the Dalungdalee family and it my duty
by Customary Law
To represent the issue of my cousin Elliott Bennett..
The Queensland Public Trustee did not include the monies
held in Fixed Deposits of the Trust
Account administered by the Director of Native Affairs during the 9 years
when Elliot Bennett
Was a professional pugilist..
-2-
After 12 months of unsuccessful negotiations we were compelled to take legal
action with
Writ No.916 of 1992.Roger Bennett made a Statement that I was authorized to
act for him
In this matter as I was a cousin to his father as did his sisters and brother
gave me authority
To act for them in this matter.
Justice de Jersey found that the Public Trustee was the Administrator and as such, the Plaintiff did not have the legal standing to bring the action.
However Justice de Jersey did make Orders that we were
to obtain copies of the Files held by
Family Services. Both myself and John Bennett did obtain a copy, in all 1,050
documents which
Clearly show that Elliott Bennett was "under " the Protection Acts,
a Ward of the State and that the Director of Native Affairs and other Agents
were Trustees empowered by the Statutes to control his Estate.
Since the year 2000, after discovering that there were
vital Bank Statements not included in the
Files, I unsuccessfully tried to have the Public Trustee account for these.
Consequently I was again compelled to take legal action
with Claim 2209 of 2003 in the Supreme Court of Queensland, naming the Public
Trustee as the First defendant and the State
Of Queensland as the Second Defendant..
The action is for the specific amount of monies for
which the State of Queensland and the Public
Trustee can not account plus interest over 50 years still owing to the Estate
of Elliott Bennett.
However as you are the Administrator for the Estate
for Roger Elliot Bennett, there is no reason
For you not to include a request to the State of Queensland to identify the
vacant Crown Lands,
That are the property of the Dalungdalee family at present held in Trust by
the Government. This
Constructive Trust is clearly outlined by the High Court of Australia in the
Murray Island Case
Decision of 1992 which was determined under International Common Law Principles.
Yours faithfully,
……………………
John Dalungdalee Jones. Eldest of the Dalungbara Land Council and representing
the
Ngulungbara and the Batchala people of Fraser Island, pursuant to Orders by
Justice Shepherdson, 21 July 1997 Supreme Court of Queensland
SUPREME COURT OF QUEENSLAND
REGISTRY: Brisbane.
No. 2209 of 2003.
Plaintiff: John Dalungdalee Jones, a beneficiary, eldest of the Dalungdalee
family
Representing the beneficiaries of the Estate of Elliott Bennett,
John Dalungdalee Jones being the cousin of Elliott Bennett in the
State of Queensland.
First Defendant: The Public Trustee.
Second Defendant. The State of Queensland.
THE PLAINTIFF'S OUTLINE OF ARGUMENT.
Introduction:
(1) After many years of Public concern and complaints about the administration
of the
Aboriginal Welfare Funds and Aboriginal Accounts set up pursuant to numerous
Aboriginal Protection Acts, the Government of the day had pledged that an
Inquiry
would be made.
As a result of an inquiry by the Consultancy Bureau commissioned by the Queensland
Government in 1990, the
FINAL REPORT
Investigation of the Aboriginal Welfare Fund and the Aboriginal Accounts was
completed March 1991 Ref. Exhibit "J130" pages 1-74.
(2) 3rd August 1991 the Courier Mail article highlighted the story of Elley
Bennett
"The mystery of champ Elley's missing money" and stated "Smiling
Elley Bennett earned
16,000 pounds (a fortune in today's money) as a boxer but he died a pauper
and a drunk.
The money apparently disappeared into the Aborigines Welfare Fund which has
been
The subject of a year- long State Government inquiry.
The Report is due to go to Cabinet this month." Ref..Exhibit "J126"
(3) 23rd June 1992 the Courier Mail reported "Dead
boxer's tribe sues Govt for missing
$32,000"
The article further stated that "The State Aboriginal and Islander Affairs
Department
-2-
Completed a review of the fund 12 months ago but recommendations have not
been put to Parliament"
REPORT NOT TABLED IN PARLIAMENT.
(4) A serious breach of the requirements of the COMMUNITY SERVICES (ABORIGINES)
ACT 1984 Reprinted as in force on May 1994
Annual report on administration
S.13.(1) As soon as is practicable after 30 June in each year the chief executive
shall
Furnish to the Minister a report on the administration of this Act during
the
Preceding 12 months.
(2)The Minister shall table each such report received by the Minister in the
Legislative Assembly within 14 days after the Minister has received it.
Exhibited is Community Services (Aborigines) Act 1994 marked "Acts 5",
not included
In Exhibits of amended Affidavit of John Dalungdalee Jones dated 28th May
2003.
(5) All previous Aboriginal Protection Acts include this requirement.
(6) The Courier Mail article June 23 1992 also quoted
" The Aboriginal and Islander Affairs
Minister, Ms. Warner said the fund was "an evil of the past that will
be incredibly
Difficult to rectify" because of lack of documentation." Ref to
Exhibit "J132"
(7) It was only after Justice Paul de Jersey in the hearing of Writ 916 of
1992 that he Ordered that the Plaintiff receive a copy of the
3 Files from 1944 until after the death of Elley Bennett in 1982, a total
of 1,050 documents were the beneficiaries able to scrutinize this history
of the financial control
by the Director of Native Affairs of money earned by Elliott Bennett during
his lifetime.
(8) The 1,050 pages certainly are evidence of the facts claimed by the Plaintiff.
(9) After close scrutiny it was also disclosed that
there were no Commonwealth Saving Bank
Statements of monies deposited in both the Personal and Trust Accounts from
26th April 1945 where it is recorded by the Superintendent of Cherbourg that
"Elliot
Bennett has a healthy credit of 90 pounds 10shillings and 6 pence. On which
he might be
Permitted to operate at the discretion of the Protector of Aboriginals Ayr."ReExhibit"J5"
Until 24th March 1953. Ref. Bank Statements beginning 24th March 1953,Exhibits"J153"
(10) A typographical error for date of the first entry
in the Bank Statement of 24th March 1953
Showed the date as being 24th March 1954.This error appears in the Amended
Statement of Claim Par.(218),(220) and (221) and the amended Affidavit of
John Dalungdalee Jones
-3-
Dated 28 May 2003, Pars.141,150 and 151.The Plaintiff makes the amendments
accordingly
(11) As quoted by Minister Warner this certainly is
"incredibly difficult to rectify because of
Lack of documentation."
(12) In fact as can be seen by the 1,050 documents
in the 3 Files, there is no lack of
Documentation BUT what is apparent there are glaring omissions of accountability
on
The part of the Directors, Clerks other Protectors regarding the management
of the
Finances of Elliott Bennett.
(13) The Plaintiff spoke with Courier Mail reporter
Ed. Southorn after the publication of the
3rd August 1991,article, Exhibit "J126", who verified the statement
in that article-
" There are no records to show if Bennett received any of his fight money
after he retired"
(14) The above Public statement is verified after the Plaintiff and beneficiaries
scrutinized
the 3 Files.
(15) The only Bank Statements to verify deposits and
expenditure are only in evidence
from 24th March 1953.
. (16) There are no Bank Statements for both the Personal
and Trust Accounts prior to
24th March 1953, the time period of the major earnings of the pugilistic career
of
Elliott Bennett
(17) The conclusion reached by the beneficiaries after
careful study of the Files is that
the Director of Native Affairs, the Deputy Director, the clerks and other
protectors
of the finances of Elliott Bennett by not keeping proper records as required
by Statutes
were incompetent or there was collusion on the part of the designated Trustees
to
deliberately defraud Elliott Bennett of the entrusted funds.
(18) As stated in Pars.155 and 246 of the amended Statement of Claim, the
beneficiaries do
not wish to pursue any criminal charges identified in the Inquiry into Aboriginal
Welfare
-4-
Fund Exhibit "J130" and "J131" as it is the duty of the
Government of the day to do so
as Trustees for us the beneficiaries of this Trust.
(19) The Plaintiff and other beneficiaries have not
the resources at their disposal to
pursue and instigate investigations into the apparent fraudulent activities
of the protectors
of the property of Elliott Bennett during his lifetime and as some of these
protectors are
now deceased, nevertheless as indicated in the argument tendered as Court
Costs,
Exhibit "J139" in the Supreme Court hearing of Writ No,916 of 1992,
when the Plaintiff
Drew attention to "The Report which indicate a massive misappropriation
of the of the
Funds ,On record are many who have misappropriated trust funds and have been
found
Guilty of this criminal offence.
The misuse of the Welfare Funds warrant action by the Criminal Justice
Commission.
Not only has the Plaintiff taken action on behalf of the Decendants of the
late
Elly Bennett, but also as a concerned citizen and as it is apparent that no
action will be
Taken by the Government the legal costs of the Plaintiff should be born by
the State as it
Has failed to execute its duty as Trustees of the Welfare Fund."
(20) It is significant that the Defendants did not seek Costs.
(21) The Plaintiff did try to obtain copies of Attachment
1.1 "CONFIDENTIAL CABINET
DOCUMENTS' and Attachment 1.4 "WITHELD ON CROWN LAW ADVICE", as
There may have been information on the Elliott Bennett Accounts but was unsuccessful.
(22) The Plaintiff realizes that without being able
to scrutinize Attachments 1.1 and 1.4 of the
Final Report into the Welfare Fund, it would be impossible to make criminal
charges.
(23) The perpetrators are Agents of the Government and the misuse of the Welfare
Funds is the
Government itself over many years as attested by Dr. Ros Kidd in her paper
"Aboriginal
Wages and trust funds in Queensland" an overview of her 721 pages REGULATING
BODIES: administrations and Aborigines in Queensland 1840-1988 Exhibit "J131"
(24) A more serious aspect of this action is that
the legal representatives of the
Queensland Public Trustee, now, can not claim that they are not aware of the
-5-
3 Files held by Family Services Department of the Queensland Government.
when in fact it is inconceivable that since the several years of correspondence
by
the Plaintiff when a request was made to investigate these Files so that it
would be
apparent that the Director of Native Affairs did not provide all the necessary
documentation in the Files to adequately account for all of the property,
including
the monies, held in Fixed Deposits etc.
(25) The Plaintiff can only draw conclusions that
there is complicity, a "partnership in
an evil action" ( Oxford Dictionary)
. RESPONSE TO THE DEFENDANTS' ARGUMENTS.
The Defence claims prolixity and unnecessary statements of facts
(26) The Plaintiff could have cited all of the 1,050 documents on the 3 Files,
all of which
indicate the complete control of management of the affairs of Elliott Bennett
by the
Department of Native Affairs.
(27) The reason for the Plaintiff for finding it necessary
to include verbatim the documents
held on File as documentary evidence of the facts claimed was to save time
for
unnecessary requests for further and better particulars as it is obvious that
these filed
documents were in possession of the Queensland Government and should have
been
made known to the Public Trustee.
(28) Again the Plaintiff can only conclude complicity between the 2 Defendants.
(29) Most of the Second Defendant's Outline of Submissions
attack the Plaintiff,s
Standing, his reliance on Customary Law and the necessity to provide evidence
of this
Customary Law as required by the citations in the Mason V Tritton (1994) 34
NSWLR 572
At 584 (citing Mabo V State of Queensland (No.2) and Western Australia V Ward
(2002)
76 ALJR 1098 at (17).
(30) Now in conformity with Orders by Justice Fryberg
14th May 2003, a beneficiary is now the
Plaintiff, that being John Dalungdalee Jones representing the other beneficiaries.
and
Therefore does not rely on Customary Law but on Common Law principles.
-6-
(31) This action is a simple Common Law claim against the Public Trustee and
the State of
Queensland pursuant to Uniform Civil Procedure Rules 1999
Relief against neglect or refusal by executor, administrator or trustee
Rule 643 .(1) This rule applies if an executor, administrator or trustee neglects
or refuses
To comply with a beneficiary's written request-
(32) The Succession Act 1981
The duties of personal representatives
Section 52 (1) (1A)
(1A) (2) If the personal representative neglects to perform his or her duties
as aforesaid
the court may, upon application of any aggrieved by such neglect, make such
order as it thinks fit including an order for damages and an order requiring
the
representative to pay interest on such sums of money as have been in the personal
representative's hands and the cost of the application.
(33) The final submission of the second defendant
in par32 claims the Plaintiff has not fully
complied with Rule 155 (2) (c)
(c) the basis on which the amount claimed has been worked out or estimated.
(34) As can be seen in the Succession Act 1981
(1A) (2) "………..an order for damages and an order requiring
the representative to pay
interest on such sums of money as have been in the personal representative's
hands and the costs of the application"
(35) The Plaintiff pursuant to Uniform Civil Procedure
Rules -
Interest
Rule 159.(1) This rule applies if a party intends to apply to the court for
an award of
Interest, whether under the Supreme Court Act 1995, section 47 or otherwise.
Rule 159.(3) The party must allege in the party's pleading particulars of-
(a) the amount or amounts on which the interest is claimed; and
(b) the interest rate or rates claimed; and
(c) the day or days from which interest is claimed; and
(d) the method of calculation.
-7-
(36) The Plaintiff meticulously complied with all requirements of Rule 159.
(3) (a), (b), (c)
And (d). Refer to Pars. (250) (1), (2), (3),(4), (5), (6), (7), (8), (9) and
Pars.(255) and
(256) of the amended Statement of Claim.
(37) This Rule also is in conformity with the Succession
Act 1981
Section 51. (1A) -
(2) If the personal representative neglects to perform his or her duties as
aforesaid the
court may, upon the application of any person aggrieved by such neglect, make
such
order as it thinks fit including an order for damages and an order requiring
the personal
representative to pay interest on such sums of money as have been in the personal
representative's hands and the costs of the application.
(38) The Plaintiff claimed the above amounts that
have been in the hands of the Government
From 4th January 1944 Par. (250) (1) to 14th October 1954 Par.(255) of the
Amended
Statement of Claim.
(39) The Plaintiff refutes the submission by the Second
Defendant in Par. 32 that claimed
Interest should only be from 1981, from the time of the Death of Elliott Bennett.
(40) The Plaintiff claims that most of the money for
which there is no account has been
In the hands of the Government over the past 50 years and as it was found
that in the
Inquiry into the Welfare Fund a considerable amount was used for capital works
and
Never returned to the Welfare Fund which was a dereliction of duty by the
Government
Who is the constructive Trustee created by the numerous Aboriginal Protection
Statutes
As declared by Justice Toohey in the High Court of Australia in the Murray
island case.
Ref. To Exhibit "J169" Amended Affidavit of John Dalungdalee Jones
28th May 2003.
(41) It is because of this Constructive Trusteeship
by the Government towards the aboriginal
Beneficiaries of that Trust that the Plaintiff claims that the Queensland
Limitations of
Actions Act of 1974 can not be imposed. Refer to Pars.(240), (241), and (242)
of the
Amended Statement of Claim.
-8-
(42)The Plaintiff refutes the submission by the Second Defendant in Par.32
that it is "not
Proper to impose both an amount for appreciated value and interest -to do
so is
Double -dipping"
(43) The Plaintiff relies upon the expert advise of
Dr. Whennan, Assistant Director,
Prices Branch, AUSTRALIAN BUREAU OF STATISTICS when after a long
Telephone conversation of 5th February 2003 and verified by letter of the
same date,
the appreciated value of the pound through the years is independent of any
interest that may be accrued at a particular year as interest varies and is
relevant to the investment such as the interest on Fixed Deposits are more
than a casual rate.
The Plaintiff was informed that if each amount claimed from Jan.1944 ,the
appreciated value rate would be more from year to year until 1953 irrespective
of any bank interest
That may be accrued.
However the Plaintiff, after conference with the beneficiaries claimed the
appreciated
Values from 1953.
It must be noted that the pound appreciated irrespective of any investment
interest.
This is why that after the interest claimed from the designated dates from
when it was
Identified that that amount was in the hands of the personal representative,
then the
Amount ascertained today is subject to the multiplication of the Factor of
12.0
This amount is less than the appreciated value of a the property of houses
that could
have been investments by the money earned by Elliott Bennett.
(44) On 14th May 2003 Justice Fryberg ordered that
the Executors of the estates of the
Deceased beneficiaries, Roger Elliot Bennett and Shiela Little should be notified.
(45) As stated in the Affidavit of the Plaintiff in
the Application the Plaintiff spent a
Considerable time searching for the existence of the executor of the Estate
of Shiela
Little, to find that the Queensland Public Trustee, Rockhampton handled her
affairs.
(46) Also exhibited Marked "I" is a copy
of the letter sent to the Public Trustee for the
Northern Territory.
(47) The Plaintiff received a letter dated 24th November
2003 from the Darwin Office of the
Public Trustee for the Northern Territory confirming that the Public Trustee
did
-9-
administer the Estate of Roger Elliot Bennett.
Exhibited is a copy of the letter marked "J NT1"
(48) On the 5th December 2003, the Plaintiff sent
a letter to the Public Trustee for the
Northern Territory confirming that Carmel Dee Burke, Sharon Lee Davidson and
John Elliott Bennett are the sisters and brother of Roger Elliot Bennett,
marked " JNT2"
(49) The Public Trustee for the Northern Territory
did inquire -
"Please advise whether the are any funds due to the estate of Roger Elliot
Bennett from
the estate of his late father Elliott Bennett
(50) In the letter from the Plaintiff to the Public
Trustee for the Northern Territory, of the
5th December 2003, the Plaintiff did state that as you are the Administrator
for the Estate
for Roger Elliot Bennett, there is no reason for you not to include a request
to the State of Queensland to identify the vacant Crown Lands, that is the
property of the Dalungdalee family at present held in Trust by the Government.
(51) In the Second Defendant's submissions, Pars. 28,
and 29, it is claimed that the Plaintiff
did not meet the requirements of Rule 149(1) (b). As stated above par. 25,
the Plaintiff
included the evidence supporting the facts to save time as the ploy of Crown
Law , in
the past was to request a number of unnecessary further and better particulars
as in the
case of the Writ No 183 of 1994 in the Supreme Court of Queensland, the endorsed
Writ
included the outline of facts whereupon Crown Law requested over 300 further
and better
particulars, over 200 were rejected, one being the Plaintiff was required
to describe the
entity "The State of Queensland", whereupon the Plaintiff stated
that if Crown law did
not know the Plaintiff did not have the temerity to explain.
(52) The Second Defendant also submits that the Plaintiff
has not met the requirements of
Rule 149(2). And refers to Pars.50, 51, and 52 of the amended Statement of
Claim.
The Plaintiff found it necessary to cite the pertinent Sections of the Aboriginal
Preservation and Protection Act 1939 to 1946 which empowered the Director
and
Deputy Director and Clerks of the Native Affairs,Ref Par.48 amended Statement
of
Claim and the Regulations to the above Act gazetted 23 April 2945 controlling
the
Actions of the Agents of the Department of Native Affairs.
-10-
These Sections and Regulations are explicit .
Rule 149(2) does allow the Plaintiff to plead a conclusion of Law, and although
both
Defendants deny these Statutes as "allegations" and the Second Defendant
to claim
Prolixity is not a defence at all.
(53) The other claim by the Second Defendant in Par.30
of the Submissions is that the Plaintiff
Included irrelevant material such as newspaper reports, reference to a Masters
Thesis,
Lengthy letters, legislation , comments and observations by the Plaintiff.
(a) It was the newspaper reports following the Investigation into the Welfare
Funds that
Prompted action by the plaintiff.
(b) It was necessary to include the lengthy letters to the Public Trustee
which clearly
demonstrated that there would be resistance to any investigation by the beneficiaries.
(c) It is necessary to demonstrate that John Dalungdalee Jones is a cousin
of the late
Elliott Bennett, his long association with him and the concern that only months
after
His retirement he was destitute.
(54) Par 31 of the Second Defendant,s Submissions is
that" it is not possible to draw from the
Pleadings any comprehensible method by which the sum allegedly owing to Mr.
Bennett, his estate or beneficiaries can be independently arrived at or verified."
(55) At the risk of being prolix the Plaintiff cites
the independent investigation by the
Courier Mail reporter, Mr. Ed. Southorn who stated, August 3 1991, "There
are no
Records to show if Bennett received any of his fight money after he retired"
Ref to the above Par.11.
The Courier Mail investigation was certainly an independent public inquiry..
(56) The Plaintiff found that it was impossible to
audit the administration of the accounts
As the vital Bank Statements of the Commonwealth Bank of Australia are missing,
As would any independent auditor would find.
(57) The Final Report :Investigation of the Aborigines
Welfare Fund and the Aboriginal
Accounts was an independent inquiry by The Consultancy Bureau March 1991,
Instigated by the Government itself.which included the ATTACHMENT1.1
CONFIDENTIAL CABINET DOCUMENTS and ATTACHMENT 1.4
-11-
WITHELD ON CROWN LAW ADVICE.
(58) The Plaintiff finds it absurd that Crown Law is
not fully cognizant of all the documents
Held on the 3 Files pertaining to the administration of the affairs of Elliott
Bennett during
His lifetime.
(59) If there is documentation for which all of the earnings of Elliott Bennett
is accounted, then
There is no doubt that the Queensland Public Trustee and the State of Queensland
would have filed a comprehensive Defence and the plaintiff would not have
instigated this Action.
This outline of argument was prepared by the Plaintiff
……………………………….
John Dalungdalee Jones
Representing the beneficiaries
14th December 2003.
FURTHER PLAINTIFF'S OUTLINE OF ARGUMENT
FROM 16th DECEMBER 2003.
(60) On the 15th December 2003, the Plaintiff received a hand delivered letter
at his residence,
37 York Parade, Spring Hill, Brisbane Q. 4000. from Crown Law, Exhibited "CL15/12/03"
(61) Crown Law asserts that pursuant to Rule 292 U.C.P.R
1999, the Plaintiff can not make
Application for summary judgment until the Second Defendant had filed a notice
of
Intention to defend.
(62) The Second Defendant was unable to file a notice
of intention to defend within the 28 days
After the day the claim was served, pursuant to Rule 137 U.C.P.R.1999.
Service on Crown Law was effected 14th March 2003 at 10.30 A.M., by Peter
Kuhnemann
(63)The Second Defendant has had 9 months to study
the Claim, the Statement of Claim and
the amended Statement of Claim and can not claim surprise at its content.
-12-
(64)The Second Defendant is well aware that the reason for the adjournment
of the hearing of
the 14th May 2003, was that the Plaintiff was to amend the Claim and the Statement
of
Claim to have a beneficiary become the Plaintiff.
(65)The appropriate amendments were made, the Plaintiff
John Dalungdalee Jones now has the
legal standing as being a beneficiary, representing the other beneficiaries,
Carmel Dee Burke, Sharon Lee Davidson and John Elliott Bennett as attested
by the
AGREEMENT BY THE LIVING BENEFICIARIES OF THE ESTATE OF ELLIOTT
BENNETT TO ACKNOWLEDGE JOHN DALUNGDALEE JONES AS BEING AN
EQUAL SHARE BENEFICIARY, Signed, Sealed and Delivered before a Justice of
the
Peace at the Brisbane Registry of the Supreme Court of Queensland on 16th
June 2003.
(66)The Second Defendant claims that the beneficiaries
would need to make amendment to the
statement of claim to reflect the change in plaintiffs and the beneficiaries
should look at the
the State's submissions and see if they agree with the State's concern about
pleadings and,
if they did, should amend the statement of claim to respond to these concerns.
(67)As can be seen by the Agreement making the Plaintiff
an equal share beneficiary, the other
beneficiaries again reiterate that the Plaintiff represents them as they have
done since 1991,
and therefore there is no need for each to make individual affidavits and
for each to make
the amendments as suggested by Crown Law.
(68)All beneficiaries agree that the Second Defendant
is unable to defend the action as the facts
and evidence of the facts contained in all 3 Files have always been in the
possession of the
State of Queensland
(69)Late filing of notice of intention to defend
Rule 138.(1) A defendant may file and serve a notice of intention to defend
at any time
Before judgement, even if the defendant is in default of Rule 137.
(2) If a defendant files a notice of intention to defend after the time limited
for
doing so, the defendant is not, unless the court otherwise orders, entitled
to further time for doing anything else.
-13-
(70)The Plaintiff draws attention to the delay in searching for the identity
of the Administrators
of the deceased beneficiaries as explained above.
(71)As it transpires, the Queensland Trustee, Rockhampton
Branch is the Administrator for
Shiela Little and at this point of time, the Plaintiff was informed by the
Public Trustee,
That they were in the process of informing the beneficiaries of the Estate
of Shiela Little.
(72)The Administrator of the Estate of Roger Elliot
Bennett is the Public Trustee for the
Northern Territory and as indicated by their prompt reply to the letter by
the Plaintiff,
The beneficiaries of the Estate of Roger Elliott Bennett are his sisters and
brothers, the
same beneficiaries of the Estate of Elliott Bennett.
(73)The delay prompted the Deputy Registrar, Mr.Ian
Mitchell to inform the Plaintiff that
a Notice of Intention to Defend was filed by PUBLIC TRUSTEE ON 11/04/03 and
a
Request for Trial Date was not filed within 180 days thereafter and you must
within 21
Days of this notice show cause …why the proceeding should not be deemed
resolved.
(74)The Plaintiff explained the circumstances whereupon,
the Deputy Registrar-
"In light of the current status of the action I have extended time to
file a request for
trial date until 12/12/03"
(75)In compliance with the Deputy Registrar's directions
and as the First Defendant has
filed a Notice of Intention to Defend and Defence, The Plaintiff filed an
Application
for Summary Judgment on the 28th November 2003, within the timeframe of the
directions of the Deputy Registrar.
(76)The Second Defendant still has not filed a Notice
of Intention to Defend or Defence
since the expiry date of 28 days after the Service of Claim and Statement
of Claim on
14th March 2003.
(77) However the Second Defendant is not precluded
from filing a Notice of Intention to
Defend and Defence at any time before Judgment pursunt
Late filing of notice of intention to defend Rule 138 U.C.P.R.1999
-14-
(78)On the 17th December 2003, the First Defendant delivered a letter by hand
at 2.43 P.M.
by Mr. Brett Chapple to the Plaintiff at his address of 37 York Parade, Spring
Hill,
Brisbane.
The letter included -
1. Amended Defence of the First Defendant filed 17th December 2003 and
2. Affidavit of Graham John Irvine filed 17th December 2003.
Exhibited marked ":J Pub.Trust."
(79)Most of the Amendments of the First Defendant have been addressed in the
Amended
Affidavit of John Dalungdalee Jones of the 28th May 2003 with the 171 Exhibits.
(80)It is important to note that the Exhibit "B" of the Affidavit
of Graham John Irvine is a
copy of the Public Trustee's General Report pursuant to the Public Trustee
Act 1978
which shows that the Director for Native Affairs did not complete the Report
faithfully.
The Plaintiff points to ASSETS
(when more than one item appears in the one line , underline item concerned.
In any case
where no asset exists corresponding to the heading hereunder writ NIL)
26. Moneys on Fixed Deposits…………………Branch
Due
Note: There is not entry and no NIL indication
(81)The Plaintiff has already drawn attention to the
fact that the Commonwealth Saving
Bank of Australia Trust Account No.658545 in the name of the Director for
Native Affairs,
Trustee for Elliott Bennett which was opened on the 7th May 1948.
Refer to Par.(43) of the Amended Statement of Claim which shows a copy of
a letter to
Manager Commonwealth Saving Bank, Brisbane from the Acting Director of native
Affairs.
(82)On the 6/5/48 Elliott Bennett, professional Pugilist
of Doggett Street, Fortitude Valley
Brisbane, in the presence of the Director of native Affairs and William John
Hill, Boxing
Manager, hereby express my desire and agree that certain monies earned by
me shall be
Protected in the following manner the 4 paragraphs indicate "placed with
the
Commonwealth Bank in Fixed Deposit"states "No withdrawals against
Fixed Deposit …by
Elliott Bennett …without approval of Director Native Affairs" Ref.
Par. (38) Amended
Statement of claim.
(83)The only money divulged on the General Report is
under ASSETS
24 Moneys on current account at Bank of Commonwealth Branch Mineral House.
A/c No. 1628 $2869.16
(84)The Amended Defence of the First Defendant relies
on facts and evidence of facts supplied
by the Director of Native Affairs contained in the GENERAL REPORT2nd February
1982
(85) The Public Trustee ,now after being aware of
the 171 exhibited evidence of facts of the
Affidavit of the Plaintiff can not rely on the previous statement that he
has made reasonable
Enquiries and remain uncertain of the truth or otherwise of the allegations.
(86) The First Defendant must admit from the evidence
that there were more Banking Accounts
of Elliott Bennett other than the one designated by the Director of Native
Affairs.
-15-
(87) After the Final Report of Investigations into the Welfare Fund and the
Aboriginal
Accounts were made Public, the Public Trustee is aware of fraudulent management
Perpetrated by Directors and Protectors of Native Affairs.
(88)The First Defendant can not rely on sections 27
and 28 of the Limitations of Actions Act
1974.
(89)Section 27(1) A period of limitation prescribed by this Act shall not
apply to an action by a
beneficiary under a trust, being an action-
(a) in respect of a fraud or fraudulent breach of trust to which the trustee
was a party or
privy; or
(b) to recover from the trustee trust property or the proceeds thereof in
the possession of the trustee, or previously received by the trustee and converted
to the trustee's use.
(90)The Plaintiff as previously claimed relied on
section (1) (b) and not (1) (a) that Limitations
could not be imposed as it is the duty of the Government of the day to pursue
fraudulent
charges against agents of the Government as Trustee on behalf of the beneficiaries.
(91)But as fraudulent charges are pending against
the agents of the Government as established
in the Final Report on the Welfare Fund, and as it is evident from the 3 Files
of
Elliott Bennett there is misappropriation of moneys by the trustees then the
Plaintiff does
Rely on section 27(1) (a) as well as 27(1)(b) of the Limitations of Actions
Act 1974
(92)Now, the Queensland Public Trustee, is privy to
the Files of Elliott Bennett it must bear
its responsibility to rectify the situation.
(93)The Plaintiff also relies on Sections 32(1) and 38(1) Limitations of Actions Act 1974
(94)Amendment of originating process
Rule 377 (1)(b) with leave of the court.
Pursuant to Orders by Justice Fryberg for leave to amend,
As there are no Bank Statements referring to the accountability of the amount
of 90 pounds ,
10 shillings and 6 pence held in trust for Elliott Bennett by the Superintendent
of Cherbourg
Refer to Par.(14) Amended Statement of Claim, the Plaintiff amends
Par.(250) of the Amended Statement of Claim to show-
(1) $ 180.00 from 4th January 1944 Ref. Par.(6)
$ 597,891.00 for interest and appreciated value today.
(256) The amount claimed:-
$13,376.00 being the amount of monies for which the Department of Native Affairs
and the Queensland Public Trustee can not account, together with
interest and appreciated value today.
TOTAL AMOUNT $19,271,736.00
CLAIM
Trust Accounts $ 13,262.00
Together with interest and appreciated value today
TOTAL AM0UNT $19,271,736.00 Amended 17th December 2003. .
-16-
ABORIGINALITY OF THE PLAINTIFF AND BENEFICIARIES
THE DALUNGBARA
(95)The Plaintiff tenders the following articles-
(1)The Family Tree as prepared by the Queensland Government. Exhibited "JDJ1"
(2)Aboriginal University of Australia Dalungdalee Trust Exhibited "JDJ2"
(3)In The Tracks Of The Rainbow by Robin Wells
Illustrated by David Jones Exhibited "JDJ3"
Introduction by John Dalungdalee Jones
Page xv Bullock Team
Page xvi Roger Bennett and Jack Noble, tracker of Kelly Gang.
Page xxiv Elley Bennett
Page xxvii Trackers Fraser Island
Page 1 John Dalungdalee Jones
Page 51 Include Brian Little nephew of Shiela Little and tracker of dingoes
That killed Clinton Gage on Fraser Island.
Page 52 John Elliott Bennett.
This outline of argument was prepared by the plaintiff
…………………………………………
John Dalungdalee Jones
Dated 18th December 2003.
Plaintiff/ Appellant: John Dalungdalee Jones
First Defendant/ Respondent The Public Trustee of Queensland.
First Respondent
Second Defendant/ Respondent The State of Queensland
Second Respondent.
NOTICE OF APPEAL
To the respondents
And to the Registrar Supreme Court of Queensland.
TAKE NOTICE that the appellant appeals to the Court of Appeal against the
whole of the Order
Of the Supreme Court of Queensland.
1. THE DETAILS OF THE JUDGMENT APPEALED AGAINST ARE-
Date of Judgment: 9th February 2004.
Description of Proceedings No. 2209 of 2003.
Description of Parties-
Plaintiff: John Dalungdalee Jones, Eldest of the Dalungdalee family representing
the
The beneficiaries of the Estate of Elliott Bennett, John Dalungdalee Jones
Being the cousin of Elliott Bennett,
And
First Defendant: The Public Trustee of Queensland
And
Second Defendant :The State of Queensland.
Name of Primary Court Judge: Justice White J.
Supreme Court of Queensland: Brisbane.
2. GROUNDS-
The Appellant appeals from the whole of the Orders made by Justice White J.
made in
The Supreme Court of Queensland, Brisbane on the 9th February 2004. in that
(a) In the opening paragraph of her Judgment, her Honour found that the First and Second Defendants were careful not to mention the name of the deceased aborigine according to Customary Law of Aborigines, thereby recognizing Customary Law of Aborigines. Her Honour erred in Law by not upholding the Right of the Plaintiff John Dalungdalee Jones by Customary Law as Eldest of the Dalungdalee family who has a duty to represent the beneficiaries of the Estate of Elliott Bennett.
(b) An error in Law occurred when her Honour ought to have found that the
Plaintiff did not
require leave, permission or licence under the Rules of the Court to represent
the
beneficiaries of the Estate of Elliott Bennett, all members of the tribe of
the Plaintiff .
-2-
(c)The Native Title Act of the Commonwealth 1993 Sections 211 and 223 over
rides any
State Statutes that prohibits the enjoyment of Customary Law which is now
enshrined in
The Common Law of Australia.
(d) The Australian Constitution Section 109, "When a law of a State
is inconsistent with a
a law of the Commonwealth, the latter shall prevail"
3. ORDERS SOUGHT-
1. The Appeal allowed and
2. Costs be awarded to the Appellant
4. RECORD PREPEARATION-
I undertake to cause a record to be prepared and lodged, and to include all
material
Required to be included in the record under the rules and practice directions
and any
Order or directions in the proceedings.
PATICULARS OF THE APPELLANT:
Name: John Dalungdalee Jones
Address: 37 York Parade Spring Hill,
Brisbane Q 4000.
Address for Service: as above.
Telephone 0733001494.
PARTICULARS OF THE RESPONDENTS:
First Respondent: The Public Trustee of Queensland
Address: 444 Queen Street,
Brisbane Q 4000.
Telephone: 32139229
Facsimile: 32139486
Second Respondent: The State of Queensland
Address: State Law Building,
50 Ann Street,
Brisbane, Q4000.
Telephone:32396507
Facsimile: 32396272.
Signed:…………………………..
John Dalungdalee Jones
Description: Appellant.
Dated: ………./………./…………..
This Notice of Appeal is to be Served on : The Public Trustee of Queensland
and
The State of Queensland.
APPEAL COURT
SUPREME COURT OF QUEENSLAND
U.C.P.R r 971 C A
NUMBER……..,,of…….
NUMBER 2209 OF 2003.
EXEMPTION ORDER -PAYMENT OF COURT FILING FEES
AFFIDAVIT OF JOHN DALUNGDALEE JONES
PLAINTIFF/APPELLANT.
I, john Dalungdalee Jones,71 years of age, of 37 York Parade, Spring Hill,
Brisbane
Queensland, Plaintiff/Appellant, make oath and say as follows;
(1) In support of my application for an Exemption Order for payment of Court
filing fees,
I have sought and have been granted an Exemption of Court filing fees in proceedings
In the Supreme Court of Queensland, the Federal and High Court of Australia.
(2) My affidavit to waive filing fees for the action 2209 of 2003 included
the pertinent
Information exhibited Marked Exhibit "A".
Sworn by John Dalungdalee Jones on March 2004. in the presence of-
……………………………………….
……………………………
Deponent. Justice of the Peace.
Affidavit of John Dalungdalee Jones John Dalungdalee Jones
Filed by John Dalungdalee Jones Plaintiff/Appellant
Appellant 37 York Parade, Spring Hill,
Form 46 r 431 Brisbane, Queensland Q.4000
Tel. 33001494.
Form 64 Rule 747 (1)
NOTICE OF APPEAL
COURT OF APPEAL
SUPREME COUTY OF QUEENSLAND
C.A. NUMBER 2018 of 2004.
OUTLINE BY THE PLAINTIFF/ APPELLANT
1. The Appellant/Plaintiff appeals from Orders made by Justice White J. made
in the
Supreme Court of Queensland, Brisbane, on the 9th February 2004 in that
2. Her Honour erred in law by not recognizing the Aboriginal Customary Law
which
Allows the right , by Aboriginal Customary Law, of the Plaintiff John Dalungdalee
Jones
as an Elder of the Dalungbara Tribe to represent any and all of the tribal
members.
3. Her Honour acknowledges Aboriginal Customary Law which is evident in the
opening
Paragraph of her judgment.
4. Her Honour also acknowledges that John Dalungdalee Jones is an aboriginal
Elder
supported by evidence as stated in the opening paragraph.
5. An error in law occurred when her Honour ought to have found that the
locus standi of
the Plaintiff was not dependent on the Uniform Civil Procedure Rules of the
Supreme
Court of Queensland but on the Aboriginal Customary Law as recognized by the
Native Title Act 1993 (Commonwealth).and therefore the Plaintiff did not require
Leave , permission, or licence under the rules of the Court, particularly
rules 75 and 76
Where a person with the same interest can be a party representing a number
with the
Same interest.
6. However rule 62 allows necessary parties "to enable the court to
Adjudicate effectually", which was overlooked by her Honour.
7., The Native Title Act 1993 Section 7 Racial Discrimination Act
(1) This Act is intended to be read and construed subject to the provisions
of the
Racial Discrimination Act 1975
8. The Appellant/Plaintiff , as Plaintiff in the Supreme Court of Queensland
Writ No.916 of
1992, claimed representative standing pursuant to Native Customary Law , being
the eldest of the aboriginal Dalungdalee family, and required by Customary
law to represent
the interests of the beneficiaries of the Estate of the deceased Elliott Bennett,
a bloodline
cousin of the Plaintiff. Ref. Amended Statement of Claim, Affidavit Exhibit
"J133 a&b"
RECOGNITION OF CUSTOMARY LAW
9. The Appellant/Plaintiff claimed at the hearing of Writ No. 916 of 1992
that his standing
was reliant upon the Racial Discrimination Act 1975 (Cmwlth.) which acknowledges
Article 5 "economic, social and Cultural rights" of the INTERNATIONAL
CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, Australia
being a signatory to the Convention.
-2-
10.The Appellant/Plaintiff also drew attention to the recognition of Aboriginal
Customs
In the hearing before Justice Paul de Jersey in Writ 916 of 1992, referring
to-
(a)Preservation and Protection Acts 1939 to 1946
Section 19 (2) Rights of children of tribal marriages
"Where an aboriginal man and woman have lived together as man and wife
in
accordance with recognised tribal practice the children of such union shall
be regarded as legitimate…"
(b)Aborigines' and Torres Strait Islanders' Affairs Act of 1965 No. 27.
Section 43 Consequences of tribal union-'accordance with recognised tribal
practice
(c)Aboriginal protection Act No. 59 of 1971, Section 49 relating to
"Recognised traditional racial practice"
(d)Aboriginal Land Act 1991- acknowledging Traditions and Customs
(e)High Court of Australia in the Murray island declaration acknowledging
Customs
and traditions.
Justices Deane and Gaudron declaration
3."….. be determined by reference to traditional law or custom"
Justice Toohey referred to the Racial Discrimination Act, Section 9
(1) & (2) "…. Fundamental freedom in political, economic, social,
cultural
right of a kind referred to in Article 5 of the Convention.
(f)Community Services (Aborigines) Act No.15 of 1994
Section 43 Jurisdiction of Aboriginal Courts
(3)disputes concerning any matter that-
(i) "….usage and customs"
Ref. Amended Statement of Claim, Affidavit Exhibit "J138"
INTERNATIONAL CONVENTION
ELIMINATION OF ALL FORMS RACIAL DISCRIMINATION.
11.The Preamble of the Native Title Act 1993 recognises international standards
for the
Protection of universal human rights and fundamental freedoms through;
(a)the ratification of the International Convention on the Elimination of
All Forms of Racial Discrimination and other standing-setting instruments
such as the International Covenants on Economic, Social and Cultural Rights
and on Civil and Political Rights; and
(b)the acceptance of the Universal Declaration of Human Rights; and
(c) the enactment of legislation such as the Racial Discrimination Act 1975
and the
Human Rights and Equal Opportunity Commission Act 1986
The High Court has;
(b)held that the common law of Australia recognises a form of native title
that
reflects the entitlement of the indigenous inhabitants of Australia, in accordance
with their laws and customs
-3-
The Parliament of Australia acknowledges and accepts , as a Signatory, Paragraph
4 of
Article 1 of the International Covenant on the Elimination of All Forms of
Racial
Discrimination and the Racial Discrimination Act 1975, to be a special measure
for . the advancement and protection of the Aboriginal peoples and Torres
Strait Islanders,
And is intended to further advance the process of reconciliation among all
Australians.
Ref. To Amended Statement Claim, Affidavit Exhibit "J138"
12. The Laws and Customs of the Dalungbara People acknowledge that the Eldest
of
the Dalungbara has a Duty , as a trustee of these Laws and Customs, to represent
any and all of his people .
13. The Racial Discrimination Act 1975 and the Native Title Act 1993, acknowledge
This Dalungbara Native Customary Law provided the Customary law is not contrary
to-
(a)"the law of God", as Justices Brennan, Mason, and McHugh found
in the High Court
Murray Island decision,
(b)"provided those laws and customs are not so repugnant to natural justice,
equity, and
good conscience that judicial sanctions under the new regime must be withheld"
as
Justices Brennan, Mason, and McHugh found in the High Court Murray Island
Decision.
14. The Native Customary Law, as stated above, is not contrary to natural
justice and in
Fact is acknowledged by the Common Law of Australia and International Common
Law.
15. This basic Law and Custom is also recognised by associated tribal groups
namely-
The Ngulungbara, the Batchala, the Undambi, the Jinibara, the Kabbi Kabbi
(Gubbi Gubbi), the Tribalandbunda, and the Wakka Wakka Peoples.
Exhibited are letters of Affirmation as to this Customasy Law of the above
Peoples
Marked "JDJ3"
16. The Native Title Act accepts that one or a number of aborigines can
apply to the Courts
For a Determination on Native Title Matters. Section 61 Native Title Act.
17. Section 211 Preservation of certain native title rights and interests
Requirements for removal of prohibition etc. on native title holders
This Section removes any prohibitions under Commonwealth, State , or Territory
law
that requires a licence, permit or other instrument granted or issued.
(3)Definition of class of activity
a. A cultural or spiritual activity;
b. Any other kind of activity prescribed for the purpose of this paragraph.
18.. Section 223 Native Title Common law rights and interests
i. The expression native title or native title rights and interests means
the communal, group or individual rights and interests of Aboriginal peoples
or Torres Strait Islanders in relation to land or waters where;
1.the rights and interests are possessed under the traditional laws
acknowledged, and traditional customs observed, by the Aboriginal
or Torres Strait peoples
2.the Aboriginal peoples or Torres Strait Islanders, by those laws
and customs, have a connection with the land and waters; and
3.the rights and interests are recognised by the common law of Australia
-4-
19. Section 224 Native Title Holder
(b)the person or persons who hold native
20. Her Honour relied on the submissions by the Second Respondent/Defendant
pointing
to the decision by Justice Kirby in Mason V Tritton , 1994, New South Wales
Law
Reports 572 at 584 regarding Customary Law, a hearing in a lower court other
than
The High Court of Australia. Ref. Judgment Page 8 Par 40-60 & Page 9 Par
1- 10.
21. However Justice Kirby stipulated "evidence in cases brought on
the basis of customary
rights must establish traditional laws and customs establishing the relevant
rights; that
the claimant is an indigenous person and is a biological descendant of the
original
Aboriginal community and that the traditional laws and customs and rights
referred to
Continued to be observed by the claimant and the immediate descendants ; and,
finally
That the rights sought to be exercised were an exercise of those traditional
laws and
Customs,"
22. The Applicant /Plaintiff has tendered as evidence that the Applicant/Plaintiff
is a
Person of Aboriginal descent.
Refer to Exhibits tendered with outline of argument at hearings before
Justice Moynahan, 19th December 2003 and Justice White 5th February 2004
(1) The Family Tree prepared by the Queensland Government Exhibited "JDJ1"
(2) Aboriginal University of Australia Dalungdalee Trust Exhibited "JDJ2"
(3) "In The Tracks Of The Rainbow"
by Robin Wells and illustrated by David Jones Exhibited "JDJ3"
23. The evidence of the aboriginality of the Appellant/Plaintiff and that
the ancient
Native Customary Law acknowledging the right and duty of John Dalungdalee
Jones to
Represent any and all of his tribal group is affirmed by the elders of the
named tribal
Groups in Paragraph 15.
24. This Native Customary Law establishing the right of John Dalungdalee
Jones to legally
represent his tribal kinsman and women, the beneficiaries of the Estate of
Elliott Bennett
is upheld by
1.The Racial Discrimination Act 1975 (Commonwealth), acknowledging the right
to
practise cultural activities , the cultural right is enshrined in Article
5 of the
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS
OF RACIAL DISCRININATION.
2,The numerous Sections of past and present Aboriginal Protection Acts of
Queensland.
Some of which is listed in paragraph 10 (a), (b), (c). (d). and (f) recognising
customs
(e) being the acknowledgment by Justices Deane, Gaudron and Toohey in their
High Court of Australia Declaration in the Murray island decision that Native
Traditions and Customs are recognised by Australian Common law. Ref. Par.
10.
3.The Native Title Act 1993 (Commonwealth), Section 211 which removes
Prohibitions etc.on native title holders (1) (b) and Definitions of class
of activity
(d) and (e).
The Native Title Act clearly removes prohibitions on Native Title holders
such as
Rules of the Supreme Court requiring the Plaintiff John Dalungdalee Jones
to be able
To represent his tribal kin pursuant to U.C.P.R. 75.
-5-
25. Section 109 of the Constitution of Australia supports this legal fact.
26. The Appellant/Plaintiff has tendered evidence supporting his right to
represent the
beneficiaries of the Estate of Elliott Bennett, pursuant to Native Customary
Law.
27. As the Orders and Transcripts are not available from the hearing before
Justice Fryberg
on the 14th May 2003 and the hearing before Justice Moynahan on the 19th December
2003, the arguments put forward by the Applicant/ Plaintiff will not be available
for the
Record Book.
the Defence of the First and Second Defendants that the Applicant/Plaintiff
did not have
the representative capacity as a beneficiary.
28.On 13th October 2003, Mr. Ian Mitchell , Deputy Registrar notified the
Applellant/Plaintiff that as the Public Trustee had filed a Notice of Intention
to Defend on
The 11/04/2003,that 180 day had lapsed that unless a request for a trial date
be made the
Proceedings would be deemed to be resolved.
29. The Applicant/Plaintiff explained that the long delay in locating the
Administrators of the
Estates of the 2 deceased beneficiaries, Roger Bennett who died intestate
at Alice Springs
And Shiela Little the third de facto wife of Elliott Bennett to whom no children
were born,
And who died at Rockhampton, was that it was discovered that the Administrator
of the
Estate of Shiela Little was in fact the Queensland Public Trustee, Rockhampton
Office
Although letters were sent to both the Rockhampton and Brisbane Offices, no
information
Has been forwarded to the Applicant/Plaintiff to date.
The Public Trustee for the Northern Territory promptly answered notifying
the Applicant
That the Northern territory Trustee was indeed the Administrator for the Estate
of
Roger Bennett, the eldest child of Elliott Bennett.
30.. On the 12 November 2003, Mr. Ian Mitchell, Deputy Registrar, extended
the time to file
a request for trial date to 12/12/2003.Ref. Affidavit Application Summary
Judgment
Exhibits "F" & "H"
31..As the Defence for the First Defendant is simply a denial of the "allegations"
of the
Claim and Statement of Claim, which is not a defence and the Second Defendant
,
State of Queensland is unable to file a Notice of Intention to Defend and
the Defence
The Applicant/ plaintiff Made Application for a Summary Judgment on the 28/11/
2003.
To be heard on the 19th December 2003.
32, On the 18th December 2003, the Public Trustee amended their Defence
to include
Limitations.
33. On the 19th December 2003, Justice Moynahan struck out the Application
for a
Summary Judgment by the Applicant/Plaintiff but directed that the Second defendant
Had until the 17th February 2004 to file a Notice of Intention to Defend.
34. As there are no recordings of the Orders and Transcripts of the hearing
of the 19/12/2003
the evidence of that hearing can not be included in the Record Book.
35. On the 5th February 2004 at the hearing before Justice White drew attention
to the
oversight of the staff of the registry that the hearing was neglected to be
taken in the
Way. Ref. Page 13 Par 50 Transcript 5/02/2004.
-6-
36. On the 5th February 2004, the Public Trustee asserted Limitations, Justice
White
drew attention that "there's plenty of authority to suggest you shouldn't
decide
limitation points in a summary way" Ref. Page 20 Par.30-40 Transcript
5/02/2004.
37. On the 14th May 2003 Justice Fryberg adjourned the hearing so that the
Plaintiff
could consider the proposition that a beneficiary replace John Dalungdalee
Jones
as the Plaintiff in the matter and that the Administrators of the Estates
of the deceased
beneficiaries Roger Bennett and Shiela Little be notified,
38. As the Transcripts are not available of that hearing of the 14th May
2003 before
Justice Fryberg, the evidence of the hearing can not be available for the
Record Book,
39, On the 16th June 2003, an Agreement By The Living Beneficiaries Of The
Estate Of
Elliott Bennett To Acknowledge John Dalungdalee Jones As Being An Equal
Share Beneficiary was signed , sealed and delivered at the Registry of the
Supreme
Court by the living issue of Elliott Bennett being Carmel Dee Burke, Sharon
Lee
Davidson and John Elliott Bennett This Agreement acknowledged that
John Dalungdalee Jones is a cousin of the late Elliott Bennett and that the
late Roger
Bennett on the 14th July 1992 signed a Statement that John Dalungdalee Jones
had full
Authority to act on his (Roger Bennett) behalf as did Carmel Dee Burke, Sharon
lee
Davidson and John Elliott Bennet did on 10/06/92 for the purpose in taking
the original
action with Writ 919 of 1992 in the Supreme Court of Queensland was to recover
the
earnings of Elliott Bennett held in the Welfare Fund. And to use a percentage
of that
money to establish the ELLEY BENNETT SPORTS FOUNDATION
Ref. To Affidavit to Application of 28 Nov 2003 Exhibit "A" , "B",
and "C",
40. As the Agreement making John Dalungdalee Jones an equal share beneficiary
pursuant
to the Authority given him by Roger Bennett, the deceased eldest of Elliott
Bennett, to
use a percentage of the money held in Trust by the Welfare Fund for the ELLEY
BENNETT SPORTS FOUNDATION, the Appellant/Plaintiff amended the Claim and
Statement of Claim to show that John Dalungdalee Jones , a beneficiary, eldest
of the
Dalungdalee family is now the Plaintiff representing the other beneficiaries.
41. The First and Second Defendants/Respondents objected to the legality
of the Agreement
making John Dalungdalee Jones an equal share beneficiary.
43. Her Honour upheld the objections by the First and Second /Respondents
that the
Agreement did not meet the legal requirements of Section 52 of the Succession
Act Qld.
As he the Plaintiff John Dalungdalee Jones did not qualify as a person aggrieved
arising
Out of the administration of the Public Trustee of the Estate of Elliott Bennett,
relying on
U.C.P.Rule 643 relating to neglect or refusal by executor, administrator or
trustee.
Rule 642(1) This rule applies if an executor, administrator or trustee neglects
or refuses
To comply with a beneficiary's written request-
Ref. Judgment Page 7 Par 30-40--/
44. Her Honour also ruled that Mr. Jones cannot bring himself within rule
75 of the
U.C.P.Rule 75 as a representative party as he does not have the same interest
as those
Persons who could have been parties. Ref. Judgment Page 7 Par 40-50.
-7-
45. The Second Defendant argued that the Plaintiff could not take the persona
of an
an aggrieved person relying on precedents that discount mere busy bodies and
be
more than a mere intellectual or emotional concern.
46. Her Honour upheld this argument .Ref. Judgment Page 8 Par.1-40.
47. Her Honour went on to say this claim is unlikely to have any basis in
custom deriving
as is acknowledged from the provisions of the Succession Act 1981
Ref. Judgment Page 8 Pars. 40-60 & Page 9 Par 1-20.& Page 10 Par 1-30.
48. The Appellant/Plaintiff asserts that acknowledgment that John Dalungdalee
Jones is
of Aboriginal descent, is a distant cousin to the Late Elliott Bennett as
attested by the
evidence of the Family Tree prepared by the State of Queensland and that Native
Customary Law is recognised in Australian Common Law, that the contentious
issue
That the Agreement by the beneficiaries making John Dalungdalee Jones an equal
share
Beneficiary is not legally sustained by the Succession Act Qld. 1981 is irrelevant
to the
Overriding qualification that John Dalungdalee Jones can represent the beneficiaries
Of the Estate of Elliott Bennett pursuant to Native Customary law as Elliott
Bennett and
His kin are of the Aboriginal Dalungdalee Family of which John Dalungdalee
Jones is
The eldest of the Dalungbara Aboriginal Tribe and has a Duty as Trustee by
Customary
Law to represent any and all of the tribal members.
49. The Appellant/Plaintiff does not accept that the Public Trustee properly
made a full
accounting for the Estate of Elliott Bennett as is attested by the several
letters delivered to
the Public Trustee by John Dalungdalee Jones on behalf of the beneficiaries
from
24/7/2000 until 25th October 2000 to make a full accounting.
The Replies from the Public Trustee asserted in his letter of 15th November
2000 that
"Because that information is confidential, I am unable to disclose to
you the nature
and extent of Mr. Bennett's assets at the time of his death"
Ref, Amended Statement of Claim Exhibits "K", "L", "M"
and "N".
50. Her Honour acknowledged that "it seems unlikely that that file had
indeed been
consulted but that is a possible delict by the State of Queensland.
Ref Judgment Page 11 par 50.
51. At the hearing on the 19th December 2003 before justice Moynahan,
Appellant/ Plaintiff argued that the outline of argument for the defence of
the Public
Trustee, delivered to the Appellant/Plaintiff on the 18th December 2003, the
day before
The hearing on the 19th December 2003 included an argument to impose limitations.
52, The Plaintiff argued that now that the Public Trustee had in its possession
the
171 Exhibits to the Amended Statement of Claim which included the pertinent
copies of the 3 Files on Elliott Bennett, pertaining to the Trust Accounts
set up and
controlled by the Director of Native Affairs held by the Queensland Government,
and that the monies were held in Fixed Deposits and a personal account only
to be
operated by the Director, Deputy Director or Clerk of the Department of Native
Affairs and that there were no Bank Statements accounting for the use of those
monies
The argument that the Report Sheet contained all of the information as to
what
-8-
happened to the monies as supplied by the Director of Native Affairs was
to say
the least inadequate.
The Appellant/Plaintiff asserts that now the Public Trustee can not claim
Limitations
As it is very apparent that the Officers of the Department of Native Affairs
did not
Fulfil their Duty as Trustee to make the appropriate accounting according
to the
Aboriginal Protection Acts.
Justice White did note that there were no reference to proceeds of his boxing
prize
Money and that account or indeed , any moneys which he had received as a worker
On the bullock team or as a farm labourer, if any remained.
Ref Judgment Page 11 Par 20-40.
53. The Appellant/Plaintiff made a written request to the State of Queensland
to disclose
Attachments 1.1 and 1,4 of the Final Report Investigation of the Aborigines
Welfare Fund and Aboriginal Accounts
This was refused by the State of Queensland.
54. The Appellant/Plaintiff sought an Order for Disclosure from Justice
White at the
Hearing of the 5th February 2004.
55. Justice White refused the Disclosure Order
Ref. Judgment Page 6 Par. 20-30.
56. The Appellant/plaintiff drew attention to the information of the Inquiry
into the
Welfare Fund that was reported by the Courier Mail that it was discovered
that
wide spread fraud was perpetrated by Protectors of Native Affairs across the
State.
And that that information was contained in the Attachments 1.1 and 1.4 which
is
"WITHHELD BY CROWN LAW ADVICE
57. As it was the story by the Courier Mail that Elley Bennett was a main
contributor
To the Welfare Fund the Appellant/Plaintiff sought disclosure of the above
Attachments
As there could quite well be information regarding the use of the monies earned
by
Elliott Bennett..
58. The Appellant/Plaintiff has desisted claiming fraud perpetrated by the
Directors of
Native Affairs as it is thought that this is the duty of the State, the Trustee
for the
Aborigines to do so.
59. Her Honour found that the pleadings were long and discursive and nigh
impossible to
Plead to Ref Judgment Page 12 Par 40-50.
60. The Appellant/Plaintiff referred to only a small portion of the 1,050
documents held
In the 3 Files held by the Department of Family Services but found it necessary
to
Include the Sections and Regulations of the Aboriginal Protection Acts which
empowered the Director of Native Affairs to control the property of Elliott
Bennett.
61. The Public Trustee made an overall denial of the "allegations"
of the Claim which in
Fact included their own legal documents.
-9-
62. The Appellant/Plaintiff found it necessary to include the pertinent documents
and the
considerable Aboriginal Protection Acts which empowered the Directors of Native
Affairs to control the property of Elliott Bennett, all included in the 84
pages of the
Amended Statement of Claim and can understand that the State of Queensland
find it difficult to file a Defence as in fact their own documents and Statutes
are indefensible.
63. The main point of contention is that the Applicant/Plaintiff has not
the locus standi
pursuant to State Statute and the Rules of the Supreme Court and that the
Agreement
making John Dalungdalee Jones a beneficiary is not in accordance with the
Succession
Act Qld.1981.
64 This is answered by the recognition that Native Customary Law allows the
Representative standing of the Appellant/Plaintiff which overrides State Laws
and
Upheld by the Section 109 of the Constitution of Australia
65. Her Honour erred in not allowing the Application for a Trial Date as
directed by
Deputy Registrar Mr. Ian Mitchell as all these contentious issues will be
rightfully
Argued at Trial before a Jury.
66. The Appellant/Plaintiff has submitted that rule 138 allows the Second
Defendant for
Late filing of Notice of Intention to Defend
67. Her Honour erred by ordering costs against the Appellant/Plaintiff.
68. Her Honour did not consider the evidence tendered regarding costs when
an Aborigine
seeks redress against the State of Queensland who is the constructive trustee
of the
Aborigine as established by the Aboriginal Protection Statutes as found by
JusticeToohey in the High Court decision in the Murray Island case.
Regarding the question of costs
(a)At the hearing before Justice de Jersey in Writ 916 of 1992 the Appellant/Plaintiff
submitted that as well as representing the descendants of Elliott Bennett
and that the
Minister for Aboriginal Affairs failed to table the Welfare Report in Parliament
12 months ago (as required by Statute), the Plaintiff has taken action as
a concerned
citizen as it is apparent that no action will be taken by the Government (now12
years
later, the Government still has not tabled the Welfare Fund Report as required
by
Statute) and that the legal costs of the Plaintiff should be born by the State
as it
Failed to execute its duty as Trustee for the Welfare Fund.
Ref to Affidavit of the Amended Statement of Claim Exhibit "J139"
(b)The recognition that the constructive Trusteeship established by Statutes
creating
the State of Queensland the Trustee and the Aborigines the Beneficiaries of
that
Trust, supported by numerous declarations that Elliott Bennett is a Ward and
that
The Director , The Deputy Director and Clerks are the Trustees, is declared
by
Justice Toohey in the High Court of Australia.
Ref. To Affidavit of the Amended Statement of Claim Exhibit "J169 P1,2,3
&4"
69. This is in line with the final pleading of the Appellant/Plaintiff relying
on
Section 249 of the Supreme Court Act 1995
" Generally in all matters not hereinbefore particularly mentioned in
which there is
any conflict or variance between the rules of equity and the rules of the
common
law with reference to the same matter the rules of equity shall prevail"
-10-
ORDERS SOUGHT
70. The Appellant/Plaintif seeks Orders that
1.That John Dalungdalee Jones remains as the Plaintiff, a beneficiary representing
the other beneficiaries by Native Customary Law and
2.That the State of Queensland has a case to answer as the Second Defendant
is the
Trustee for the Plaintiff Beneficiaries pursuant to Statutes and has the overriding
Responsibility for the Department of Native Affairs and the Queensland Public
Trustee and
3.That Attachments 1.1 and 1.4 of the Final Report
Investigation of the Aborigines Welfare Fund and the Aboriginal Accounts
Be made available from the State of Queensland as these documents are necessary
Evidence at Trial.
4 That a Trial by Jury Date be fixed and
5.That costs be awarded to the Plaintiff.
All References to Outline to be Indexed and All available Transcripts as
well as
Arguments by the plaintiff and the First and Second Defendants to be included
in
The Record Books.
This Outline was prepared by the Appellant/Plaintiff and filed with the
Court of Appeal
Registry, Brisbane.
On the 23rd March 2004 at Brisbane.
Signed……………………………….
John Dalungdalee Jones
Description: Appellant/ Plaintiff
Particulars of the Appellant
Name: John Dalungdalee Jones
Address: 37 York Parade , Spring Hill,
Brisbane Q. 4000.
Address for Service: As above
Telephone: 0733001494 Mobile 0419025396
Particulars of the Respondents
First Respondent :The Public Trustee of Queensland.
Address: 444 Queen Street, Brisbane Q 4000.
Telephone:32139229 Facsimile: 32139486.
Second Respondent: The State of Queensland.
Address: State Law Building,
50 Ann Street, Brisbane Q.4000.
Telephone: 32396507. Facsimile: 32396272.
This Outline of the Appellant is to be served on: The Public Trustee of Queensland.
The State of Queensland.
The Honourable Mr. Philip Ruddock.
The Attorney -General,
Commonwealth,
Parliament House,
Canberra A.T.C. 2060.
Dear Sir,
Regarding Court of Appeal No. 2018 of 2004,
John Dalungdalee Jones Appellant/Plaintiff and
First Defendant/Respondent The Public Trustee of Queensland and
Second Defendant/Respondent The State of Queensland.
I include by way of service of the Notice of the Cause pursuant to -
Judiciary Act 1903
Notice to Attorneys-General
Section 78B
Please find enclosed a copy of the NOTICE OF APPEAL
Which includes the grounds for Appeal.
To assist you in understanding the background of this Action which began
with the
Supreme Court Writ No. 916 of 1992 when the Plaintiff John Lee Jones, Elder
of the
Dalungdalee People of Thoorvour (Fraser Island) as Trustee by Native Customary
Law
claiming monies held in Trust by the Director for Native Affairs for which
there is no
accounting and subsequently for which the Public Trustee did not include in
the finalising of
the Estate of Elliott Bennett, culminating in the Claim No. 2209 of 2003 in
the Supreme
Court of Queensland, all included in the OUTLINE BY THE APPELLANT/PLAINTIFF.
The Second Defendant/Respondent referred me, the Appellant/Plaintiff to
The Judiciary Act 1903 Section 78B
The Second Defendant/Respondent infers that Section 78B applies.
Section (1) requires Notice be given to the Attorney -General as the matter
involves an
Interpretation of 109 of the Constitution.
However as can be seen The State of Queensland is a Party and therefore
the
Attorney-General for the State is informed.
-2-
As can be seen from the Outline of Argument by the Appellant/Plaintiff,
the
Issue is that the Native Title Holder , John Dalungdalee Jones does not require
leave,
Permission or licence under the Rules of the Court to represent other members
of his Tribe.
This is supported by Section 109 of the Constitution.
The Appellant/Plaintiff noted that 78B Section (2) (c)"may continue
to hear evidence and
Argument concerning matters severable from any matter arising under the Constitution
or
Involving its interpretation." And
78B (5) "Nothing in subsection (1) prevents a court from proceeding
without delay to hear
and determine proceedings, so far as they relate to the grant of urgent relief
of an
interlocutory nature, where the court thinks it necessary in the interests
of justice to do so."
In light of the preceding sub sections you may find it unnecessary by way
of intervention to
Remove the cause to the High Court as the contentious issues can be resolved
by the Appeal
Court of Queensland pursuant to the above subsections.
The Outline of Argument of the Appellant/Plaintiff clearly shows that the
Commonwealth
Statutes establishes the Native Title Rights of John Dalungdalee Jones by
Native Customary
Law to be able to represent any and all of his Tribe, these Commonwealth Statutes
override
The State Statutes and only points to Section 109 of the Constitution that
upholds this
Legality.
There is no question as to interpretation of Section 109 of the Constitution
although the
State of Queensland intimates that an interpretation is needed.
I draw attention to the failure of the State of Queensland to address the
long outstanding
Problem dealing with the "Stolen Wages" issue which was subject
to the
Final Report Investigation of the Aborigines Welfare Fund and the Aboriginal
Accounts
This Inquiry should have been tabled in Parliament in 1991, pursuant to the
Aboriginal
Protection Acts The Final Report has never been tabled in Parliament to date.
Since 1992 when the Appellant/Plaintiff first began litigation there was
Australian wide
Interest.
Now at the last 2 Court hearings a number of Representatives of the United
Nations were
Present, so it is now attracting International interest.
The Appellant/Plaintiff claims that although this present State Government
did not actually
Commit this "evil of the past" as the Minister for Aboriginal Affairs
Ann Warner stated in
1991, nevertheless there is no doubt that the present State Government has
a responsibility
to rectify this "evil of the Past' but it is apparent by the vigorous
defence to our Claim that
the State of Queensland is prevaricating in addressing the issue.
Yours faithfully,
………………………………….
John Dalungdalee Jones Appellant/Plaintiff.
Deputy Registrar,
Court of Appeal,
Brisbane.
APPEAL COURT
SUPREME COURT OF QUEENSLAND
Court of Appeal No. 2018 of 2004.
Number 2209 of 2003
Dear Sir,
Regarding my letters to the Attorneys-General of the Commonwealth and the
States pursuant to
Section 78 B of the Judiciary Act 1903.
Please find enclosed my letter of the 18th March 2004 to the Commonwealth Attorney General
I also sent letters to the Attorneys-General of the States and Territories.
The following do not intend to intervene, but if the matter proceeds to the
High Court they wish
To be notified.
Letter dated 13th April 2004 from the Victorian Government Solicitor,
Letter dated 13th April 2004 from the South Australian Crown Solicitor,
Letter dated 15th April 2004 from the Tasmanian Solicitor- General,
Letter dated 20th April 2004 from the Northern Territory Solicitor General
Letter dated 15th April 2004 The Director General for the Office of the Attorney General of New South Wales has referred the matter to the Crown Solicitor and not indication to date.
There has been no response from the Attorney General of Western Australia to date.
Letter dated 31st March 2004 from the Australian Government Solicitor informs
met that the
Matter is still under consideration by the Commonwealth Attorney General and
I have had no response to date.
Yours faithfully,
……………………….
John Dalungdalee Jones Appellant/Plaintiff.
5th May 2004.
The Hon/ Bob Debus,
Attorney General
Parliament
Sydney, N.S.W. 2001.
Dear Sir ,
Regarding the Supreme Court of Queensland Court of Appeal N0. 2018 of 2004,
John Dalungdalee Jones Appellan6/ plaintiff and
First Respondent/ Defendant The Public Trustee of Queensland and
Second Respondent/ The State of Queensland,
I include by way of Servise of the Notice of the cause pursuanr to
Judiciary Act 1903,
Notice to Attorneys-General
Section 78B
Please Find copy of the NOTICE OF APPEAL.
Which include the grounds for Appeal.
The Appellant/ plaintiff contends that the Statutes of the Commonwealth overrides
The Statutes of the States pursuant to Section 109 of the Australian Constitution,
The Action is one by an aborigine against the State regarding monies, "Stolen
Wages"
Held in Trust but for which there is no accounting and never paid to the beneficiaries
of the Estate of Elliot Bennett, a cousin of the Appellant/Plaintiff.
The Action began in 1992 with Writ 916 of 1992 in the Supreme Court.
It attracted Australian wide attention and NOW international attention.
It appears each State is subject to a "Stolen Wages" claim by its Aboriginal People.
Yours faithfully,
…………………………..
John Dalungdalee Jones Appellant/ Plaintiff
5/4/2004.
The Hon. Mr. Rob Hulls,
Attorney General
Level 1 55 St. Andrews Place,
Melbourne, Vic 3002.
Dear Sir,
Regarding the Supreme Court of Queensland Court of Appeal No. 2018 of 2004-04-05
John Dalungdalee Jones Appellanr/ Plaintiff and
The First Respondent' Defendant The Public Trustee of Queensland and
The Second Respondent? Defendant The State of Queensland.
I include by way of Service, of the Notice of the cause pursuant to
Judiciary Act 1903
Notice to Attorneys-General
Section 78B.
Please find copy of NOTICE OF APPEAL
Which include grounds of Appeal.
The Statutes of the Commonwealth overrides the Statutes of the States pursuant
to the
Section 109 of the Australian Constitution.
The action is one by an Aborigine against the State which controlled the
wages of Elliott Bennett
A professional boxer over 50 years ago, for which there is no accounting and
never paid to the
Beneficiaries of the Estate of Elliott Bennett.
The Appellant/ Plaintiff a cousin of Elliott Bennett and the Eldest of the Dalungdalee Aboriginal tribe began the Action with Writ No 916 of 1992 which attracted Australia wide attention and now with United Nations Observers attending recent hearings , International interest.
It appears each State is confronted with the "Stolen Wages " problem.
Yours faithfully,
………………………..
John Dalungdalee Jones Appellant/Plaintiff
5/4/2004.
The Hon. Judy Jackson,
Attorney General,
Parliament House,
Hobart, Tasmania, 7000.
Dear Madam,
Regarding the Supreme Court of Queensland Court of Appeal No 2018 of 2004,
John Dalungdalee Jones Appellant /Plaintiff and
The First Respondent/ Defendant The Public Trustee of Queensland and
The Second Respondent/Defendant The state of Queensland
I include by way of Service of the Notice of the Cause pursuant to-
The Judiciary Act 1903,
Notice to Attorneys -General
Section 78B
Please find enclosed a copy of the NOTICE OF APPEAL
Which include the grounds of Appeal.
The Statutes of the Commonwealth overrides the Statutes of the States pursuant
to
Section 109 of the Australian Constitution.
The Action began with Writ 916 of 1992 in the Supreme Court of Queensland
when
The Appellant/Plaintiff a cousin of the aboriginal boxer Elley Bennett found
that the
Prize monies earned for which there were no accounting and never paid to the
Estate of Elley Bennett .The Action is against the State of Queensland and
the Public Trustee who failed in their Duty to account for these monies..
In 1992, the action attracted Nation wide attention and now with Observers
of the United Nations
Attending the recent Court hearings there is International interest.
Each State has a problem with the "Stolen Wages" of Aborigines.
Each State and the Commonwealth has a Duty of Trust to address this problem.
The Nations of the World is interested,
Yours faithfully,
………………………….
John Dalungdalee Jones Appellant/Plaintiff
5/4/2004
The Hon. Michael Atkinson,
Attorney General,
G.P.O.464.
Adelaide, South Australia 5001.
Dear Sir,
Regarding the Supreme Court of Queensland Court of Appeal No 2018 of 2004,
John Dalungdalee Jones Appellant/ plaintiff and
The First Respondent/Defendant The Public Trustee and
The Second Respondent/Defendant The State of Queensland
I include by way of Service of the Notice of the Cause pursuanr to-
Judiciary Act 1903
Notice to Attorneys-General
Section 78B
Please enclosed a copy of NOTICE OF APPEAL
Which include grounds for Appeal.
The Statutes of the Commonwealth overrides the Statutes of the States pursuant
to
Section 109 of the Australian Constitution
This action began with Writ 916 of 1992 in the Supreme Court by John Dalungdalee
Jones,
A cousin of the aboriginal boxer Elley Bennett against the State of Queensland
and the Public
Trustee .The Plaintiff found that the prize monies earned by Elley Bennett
over 50 years ago
For which there is no accounting and never paid to the Estate of Elliott Bennett.
The Plaintiff claims a breach of Fiduciary Duty on the part of the State.
In 1992 the action attracted nation Wide attention and now with Observers
of the United Nations
Attending the recent Court hearings there is International interest.
All States have the problem of "Stolen Wages" of Aborigines and all States and the Commonwealth must address this long outstanding priblem.
Yours faithfully,
……………………….
John Dalungdalee Jones Appellant/Plaintiff
5/4/2004.
The Hon. Dr. Peter Toyne,
Attorney General,
For the Northern Territory,
Parliament House,
Darwin, N.T. 0800
Dear Doctor,
Regarding the Supreme Court of Queensland Court of Appeal No.2018 of 2004,
John Dalungdalee Jones Appellant/Plaintiff and
The First Respondent/Defendant The Public Trustee and
The Second Respondent/Defendant The State of Queensland.
I include by way od Service of the Notice of the cause pursuant to-
Judiciary Act 1903
Notice to Attorneys -General
Section 78B.
Please find enclosed a copy of NOTICE OF APPEAL
Which include grounds for Appeal
The Statutes of the Commonwealth overrides the Statutes of the States pursuant
to
Section 109 of the Australian Constitution.
The action began with Writ No916of 1992 in the Supreme Court when The Appellant/Plaintiff
Took action against the State of Queensland for the Monies earned by boxer
Elley Bennett 50
Years ago that there were no accounting and never paid to the Estate of Elliott
Bennett.
The Plaintiff claims that the State of Queensland is in breach of its Trust
against the beneficiaries
Of that Trust the aborigines concerned.
Then the action attracted Australian wide attention, now with Observers from
the United Nations
Attending the recent Court hearings there id International interest.
Al States have the problem of the "Stolen Wages" of Aborigines and all States and the Commonwealth must address this long outstanding problem.
Yours faithfully,
…………………………
John Dalungdalee Jones Appellant/Plaintiff
5/4/2004.
The Hon. Mr.Jim McGinty,
Attorney General.
Western Australia Government,
30th Floor Allendale Building,
St. George Terrace, Perth
Western Australia 6000.
Dear Sir,
Regarding the Supreme Court of Queensland Court of Appeal No 2018 of 2004,
John Dalungdalee Jones Appellant/Plaintiff and
The First Respondent/ Defendant The Public Trustee of Queensland and
The Second respondent/ Defendant The State of Queensland.
I include by way of Service of the Notice of the cause pursuant to-
The Judiciary Act 1903
Notice to Attorneys-General
Section 87B
Please find enclosed a copy of the NOTICE OF APPEAL
Which include the grounds of Appeal.
Statutes of the Commonwealth overrides the Statutes of the States pursuant
to
Section 109 of the Australian Constitution.
The Action began with Writ No. 916 of 1992 in the Supreme Court when the
Plaintiff, a cousin
Of boxer Elley Bennett, an aborigine, found that the prize monies earned by
Elley Bennett over
50 years ago for which there was not an accounting and were never included
in the Estate of Elliott Bennett. The Plaintiff claims a breach of Fiduciary
Duty pursuant to Statutes by the State
of Queensland.
At the time it attracted Nation wide attention now with Observers of the United Nations attending recent hearings there is International attention.
All States have this problem with the "Stolen Wages" of Aborigines
and all States and the
Commonwealth must address this long outstanding problem.
Yours faithfully,
………………………..
John Dalungdalee Jones Appellant/Plaintiff
5/4/2004.
The Hon. Mr. John Stanhope,
Attorney General,
P.O.Box 1020 Canberra, Canberra, A.C.T.2601.
Dear Sir,
Regarding The Supreme Court of Queensland Court of Appeal No 2018 of 2004,
John Dalungdalee ones Appellant/Plaintiff and
The First Respondent/Defendant The Public Trustee of Queensland and
The Second Respondent/ Defendant The tate of Queensland,
In include by way of Service of the Notice of the cause pursuant to-
Judiciary Act 1903
Notice to Attorneys-General
Section 87B.
Please find enclosed a copy of the NOTICE OF APPEAL
Which include grounds for Appeal.
The Statutes of the Commonwealth overrides the Statutes of the States pursuant
to
Section 109 of the Australian Constitution.
The Action began with Writ No 916 of 1992 in the Supreme Court when the Plaintiff
a
Cousin of Elliott Bennett, an aborigine, claimed by Native Customary Law to
represent
The beneficiaries of the Estate of Elliott and claimed that the prize monies
earned by
Elliott Bennett for which there is no accounting and never paid to the Estate
of Elliott Bennett
The Plaintiff also claimed a breach of Fiduciary Duty by the State of Queensland.
At the time it attracted Nation wide attention and now with Observers from the United Nations attending recent hearings it has attracted International interest.
All States have a problem with "Stolen Wages" of Aborigines and
All States and the
Commonwealth have a responsibility to address this long outstanding problem.
Yours faithfully.
…………………………..
John Dalungdalee Jones Appellant/Plaintiff
5/4/2004.
