mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Grofam Pty Ltd v Macauley (1993) 43 FCR 404 
Outcome: cited
Similarly, grounds of review that involve allegations of fraud or dishonesty, or even seriously improper behaviour, may justify the making of such orders. For a time, there developed a body of case law in this country involving challenges to the validity of search warrants, essentially on the basis that they had been improperly obtained. The principle seems to have been that a warrant obtained by a half-truth should be set aside. See generally the authorities collected and discussed by Aronson, Dyer and Groves " Judicial Review of Administrative Action " (3rd ed, 2004, at 302, fn 339). In some of these cases, far-ranging discovery was ordered and informative documents obtained. Interestingly, however, attempts to deliver interrogatories were generally unsuccessful: see, for example, Grofam Pty Ltd v Macauley (1993) 43 FCR 404 , where leave to serve interrogatories on a magistrate who had issued a search warrant was refused. 50 The only grounds of review that could even conceivably support the grant of leave to deliver interrogatories in this case are those alleging discrimination on the part of this Minister when he decided to have the applicant's weapons detained, based upon his later treatment of its competitors. These are ground 7(d) in support of the ADJR Act application and ground 8(e) in support of the s 39B(1A)(c) application. However, as discussed above, those grounds are largely speculative. They do not warrant the grant of leave to interrogate. 51 It follows that I need not determine whether, as the respondents contend, it would be unduly burdensome for them to be required to answer the proposed interrogatories. The applicant has failed to establish any adequate basis for their delivery. The grounds of review to which they are directed are untenable. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 6 June 2008 Counsel for the Applicant: Mr T. Hurley Solicitors for the Applicant: Balmer &amp; Associates Counsel for the Respondents: Mr P.R.D. Gray with Ms Z.E. Maud Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 28 April 2008 Date of Judgment: 6 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/849.html
Case: SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420
Outcome: cited
That expression of principle is entirely consistent with the views expressed by his Honour, Besanko J at paragraph 34 in the reasons in SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420 ; SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 , per Bennett J, [25] and [26]; SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477 per Cowdroy J, at [26] and [27]; and NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] per Tamberlin, Sackville and Hely JJ.
Case: SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779
Outcome: cited
That expression of principle is entirely consistent with the views expressed by his Honour, Besanko J at paragraph 34 in the reasons in SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420 ; SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 , per Bennett J, [25] and [26]; SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477 per Cowdroy J, at [26] and [27]; and NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] per Tamberlin, Sackville and Hely JJ.
Case: SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477
Outcome: cited
That expression of principle is entirely consistent with the views expressed by his Honour, Besanko J at paragraph 34 in the reasons in SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420 ; SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 , per Bennett J, [25] and [26]; SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477 per Cowdroy J, at [26] and [27]; and NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] per Tamberlin, Sackville and Hely JJ.
Case: NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184
Outcome: cited
That expression of principle is entirely consistent with the views expressed by his Honour, Besanko J at paragraph 34 in the reasons in SZGQL v Minister for Immigration and Multicultural Affairs [2006] FCA 1420 ; SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 , per Bennett J, [25] and [26]; SZBII and Another v Minister for Immigration and Multicultural Affairs and Another [2006] FCA 1477 per Cowdroy J, at [26] and [27]; and NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] per Tamberlin, Sackville and Hely JJ.
Case: McKenzie v South Australia (2005) 214 ALR 214
Outcome: considered
On 27 January 2005 I ordered that this claim be struck out. There was, in my view, no arguable basis upon which Mr McKenzie could be said to have satisfied the requirements of s 61(4) and s 62(1), (iv) and (v) relating to his authorisation to bring the claim: McKenzie v South Australia (2005) 214 ALR 214. Prior to this Mr McKenzie had, by virtue of s 84(3) of the NT Act become a respondent party to the Kokatha Native Title Claim. 18 It is difficult to overstate the centrality of the requirement of "authorisation" in the scheme laid down by the Act for the making of a native title application. Section 251B prescribes how all the persons in a native title claim group can authorise a person or persons to make such an application. Both s 61 and s 62 prescribe mandatory requirements in the application itself relating the fact of, and the basis of, the authorisation of the person or persons making the claimant application. Section 84C in turn permits any party to a (inter alia) determination application to apply at any time to this Court to strike out an application which does not comply with the requirements of s 61, s 61A (to which I earlier referred) or s 62. There is extensive case law on s 84C. For present purposes I need only refer to McKenzie v South Australia , at [25]-[26].
Case: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513
Outcome: considered
On 16 February 2006 Mr McKenzie and others lodged the second Kuyani claim (the Kuyani-Wilyaru People Native Title claim). It again overlapped in part the area of the overlap proceedings. Orders were made in these proceedings that the new claim be dealt with to the extent of the overlap. The new claim suffered from the same vices that affected the first Kuyani claim a matter raised by the ALRM. A notice of discontinuance was filed by the Kuyani-Wilyaru applicants on 31 May 2006 and an order was made in the overlap proceedings that orders made in it regarding the Kuyani-Wilyaru application cease to be operative. Mr McKenzie nonetheless remains a respondent in the overlap proceedings apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings: s 84(3)(a)(ii); or else his interests might be affected by a determination in it: see s 84(3)(a)(iii). I would note in passing that it is well settled that a native title interest suffices as "an interest" for the purposes of becoming a party to a proceedings under s 84(3)(a)(iii) and (5) of the NT Act: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [34] ; Munn v State of Queensland [2002] FCA 486 at [8] ; Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512; Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at [27].
Case: Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512
Outcome: considered
On 16 February 2006 Mr McKenzie and others lodged the second Kuyani claim (the Kuyani-Wilyaru People Native Title claim). It again overlapped in part the area of the overlap proceedings. Orders were made in these proceedings that the new claim be dealt with to the extent of the overlap. The new claim suffered from the same vices that affected the first Kuyani claim a matter raised by the ALRM. A notice of discontinuance was filed by the Kuyani-Wilyaru applicants on 31 May 2006 and an order was made in the overlap proceedings that orders made in it regarding the Kuyani-Wilyaru application cease to be operative. Mr McKenzie nonetheless remains a respondent in the overlap proceedings apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings: s 84(3)(a)(ii); or else his interests might be affected by a determination in it: see s 84(3)(a)(iii). I would note in passing that it is well settled that a native title interest suffices as "an interest" for the purposes of becoming a party to a proceedings under s 84(3)(a)(iii) and (5) of the NT Act: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [34] ; Munn v State of Queensland [2002] FCA 486 at [8] ; Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512; Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at [27].
Case: Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1
Outcome: considered
As I have indicated in relation to s 13(1), s 61A(1) and s 68 of the NT Act, an "approved native title determination" has a primary role in the scheme of the Act a native title determination application cannot be made, and this Court cannot make such a determination, in relation to an area for which an approved determination has been made. Though declaratory of rights and in that sense absolute, an approved determination has an "indefinite character": Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at [32] ; in that it can be varied or revoked on the application of the registered native title body corporate, the Commonwealth Minister, the relevant State or Territory Minister if the area in question is within the State or Territory, or the Native Title Registrar: NT Act, s 61(1) and s 13(1)(b). Importantly such an application cannot be made by a person claiming a native title right or interest in the area. The grounds prescribed in s 13(5) for varying an approved determination are: "(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or (b) that the interests of justice require the variation or revocation of the determination." 30 There are two presently relevant matters to which it is appropriate to make reference. These are (i) in deciding a native title determination application must a court make a "determination of native title" as defined in s 225 of the NT Act? and (ii) the "in rem" character of a determination of native title.
Case: Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150
Outcome: cited
This question arises because, for s 225 purposes, a determination of native title is a "determination whether or not native title exists in relation to a particular area". An order, for example, dismissing an application for a native title determination on the grounds of failure of proof is not a determination of native title. It is not a determination that native title does not exist: Harrington-Smith v State of Western Australia (No 9), at [4005]. In Western Australia v Ward (FC) at [219] Beaumont and von Doussa JJ indicated that, notwithstanding the "either or" character of the s 225 definition, it was open to a trial judge as a matter of discretion to decide that the Court should decline the jurisdiction to make a negative determination if the interests of justice so required. Their Honours instanced a situation where the evidence failed satisfactorily to disclose one way or the other whether or not native title existed. I would add that it is by no means uncommon for a trial judge to be in a position of finding that, though a claim group has failed to establish native title rights and interests in a particular area on the basis it chose to advance its case, the evidence nonetheless has suggested the possibility that, if the case had been conducted differently, at least some members of that group may have been able to establish native title rights and interests: cf Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150 at [791] ; and see Jango v Northern Territory [2007] FCAFC 101 at [75] ff; see also Quall v Northern Territory [2007] FCAFC 46.
Case: Jango v Northern Territory [2007] FCAFC 101
Outcome: cited
This question arises because, for s 225 purposes, a determination of native title is a "determination whether or not native title exists in relation to a particular area". An order, for example, dismissing an application for a native title determination on the grounds of failure of proof is not a determination of native title. It is not a determination that native title does not exist: Harrington-Smith v State of Western Australia (No 9), at [4005]. In Western Australia v Ward (FC) at [219] Beaumont and von Doussa JJ indicated that, notwithstanding the "either or" character of the s 225 definition, it was open to a trial judge as a matter of discretion to decide that the Court should decline the jurisdiction to make a negative determination if the interests of justice so required. Their Honours instanced a situation where the evidence failed satisfactorily to disclose one way or the other whether or not native title existed. I would add that it is by no means uncommon for a trial judge to be in a position of finding that, though a claim group has failed to establish native title rights and interests in a particular area on the basis it chose to advance its case, the evidence nonetheless has suggested the possibility that, if the case had been conducted differently, at least some members of that group may have been able to establish native title rights and interests: cf Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150 at [791] ; and see Jango v Northern Territory [2007] FCAFC 101 at [75] ff; see also Quall v Northern Territory [2007] FCAFC 46.
Case: Quall v Northern Territory [2007] FCAFC 46 
Outcome: cited
This question arises because, for s 225 purposes, a determination of native title is a "determination whether or not native title exists in relation to a particular area". An order, for example, dismissing an application for a native title determination on the grounds of failure of proof is not a determination of native title. It is not a determination that native title does not exist: Harrington-Smith v State of Western Australia (No 9), at [4005]. In Western Australia v Ward (FC) at [219] Beaumont and von Doussa JJ indicated that, notwithstanding the "either or" character of the s 225 definition, it was open to a trial judge as a matter of discretion to decide that the Court should decline the jurisdiction to make a negative determination if the interests of justice so required. Their Honours instanced a situation where the evidence failed satisfactorily to disclose one way or the other whether or not native title existed. I would add that it is by no means uncommon for a trial judge to be in a position of finding that, though a claim group has failed to establish native title rights and interests in a particular area on the basis it chose to advance its case, the evidence nonetheless has suggested the possibility that, if the case had been conducted differently, at least some members of that group may have been able to establish native title rights and interests: cf Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150 at [791] ; and see Jango v Northern Territory [2007] FCAFC 101 at [75] ff; see also Quall v Northern Territory [2007] FCAFC 46.
Case: The Wik Peoples v The State of Queensland (1994) 49 FCR 1
Outcome: cited
It is clear from the text and structure of the Act that a s 225 determination, once made, should be a final resolution, "once and for all", of the extent of native title in relation to a particular piece of land: see Munn v State of Queensland , at [8]; subject only to the possibility of it being varied or revoked on the limited grounds specified in s 13(5). Because such a determination is declaratory of the rights and interests of all parties holding rights or interests in the area, it is commonly and properly described as a judgment in rem binding the whole world: The Wik Peoples v The State of Queensland (1994) 49 FCR 1; Western Australia v Ward (FC), at 368-369; Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457 at [127] ; on judgments in rem see also 2 Smith's Leading Cases 776 (12 th ed, 1915). Nonetheless, it should in my view be remembered that it is the terms of the Act itself (i) which now emphatically give the s 225 determination its finalising effect; see in particular ss 13(1) and (3), 61A(1) and 68; and (ii) which give persons likely to be affected by such a determination (including native title claimants) the opportunity to protect their interests by becoming a party to the proceedings: see s 84(3) and see also s 66; cf The Wik Peoples at 5-6. My reasons for emphasising this will become apparent below.
Case: Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457
Outcome: cited
It is clear from the text and structure of the Act that a s 225 determination, once made, should be a final resolution, "once and for all", of the extent of native title in relation to a particular piece of land: see Munn v State of Queensland , at [8]; subject only to the possibility of it being varied or revoked on the limited grounds specified in s 13(5). Because such a determination is declaratory of the rights and interests of all parties holding rights or interests in the area, it is commonly and properly described as a judgment in rem binding the whole world: The Wik Peoples v The State of Queensland (1994) 49 FCR 1; Western Australia v Ward (FC), at 368-369; Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457 at [127] ; on judgments in rem see also 2 Smith's Leading Cases 776 (12 th ed, 1915). Nonetheless, it should in my view be remembered that it is the terms of the Act itself (i) which now emphatically give the s 225 determination its finalising effect; see in particular ss 13(1) and (3), 61A(1) and 68; and (ii) which give persons likely to be affected by such a determination (including native title claimants) the opportunity to protect their interests by becoming a party to the proceedings: see s 84(3) and see also s 66; cf The Wik Peoples at 5-6. My reasons for emphasising this will become apparent below. 34 Given what I have already said, I will refer to these relatively briefly. The Commonwealth's contentions focus upon the finality a s 225 determination is designed to procure and on the consequential need for the Court to determine all claims of native title rights and interests raised before it irrespective of whether all of the claimants are parties to a s 61 application. It is suggested that undesirable and inconvenient consequences would result if non-applicants (such as Mr McKenzie) cannot have the benefit of a determination of native title. And it is claimed that there is authority consistent with the interpretation they seek to place on the Act, notably Western Australia v Ward (FC) and Selway J's decision in Gumana v Northern Territory.
Case: Thasos Shipping Agency Co Ltd v Owners of the Ship 'Balakleya' [1998] FCA 520
Outcome: referred to
The ordinary rules as to the security for costs apply in this action: see D Cremean, Admiralty Jurisdiction: Law and Practice in Australia and New Zealand (2 nd ed, 2003) at page 177-178; and see Thasos Shipping Agency Co Ltd v Owners of the Ship 'Balakleya' [1998] FCA 520 and Tisand Pty Ltd v Owners of the Ship MV 'Cape Morton' (Ex 'Freya') [2004] FCA 1191 ; (2004) 141 FCR 29, cases which considered the question at an earlier stage when the jurisdiction of the court was challenged.
Case: Tisand Pty Ltd v Owners of the Ship MV 'Cape Morton' (Ex 'Freya') [2004] FCA 1191 ; (2004) 141 FCR 29
Outcome: referred to
The ordinary rules as to the security for costs apply in this action: see D Cremean, Admiralty Jurisdiction: Law and Practice in Australia and New Zealand (2 nd ed, 2003) at page 177-178; and see Thasos Shipping Agency Co Ltd v Owners of the Ship 'Balakleya' [1998] FCA 520 and Tisand Pty Ltd v Owners of the Ship MV 'Cape Morton' (Ex 'Freya') [2004] FCA 1191 ; (2004) 141 FCR 29, cases which considered the question at an earlier stage when the jurisdiction of the court was challenged.
Case: PS Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321
Outcome: referred to
The plaintiff is ordinarily resident outside Australia within the provisions of O 28 r 3(1)(a) of the Federal Court Rules and, on the evidence, I am satisfied that it has no assets in Australia. The plaintiff did not contend to the contrary; nor did it argue that there has been delay in the bringing of the application, or that an order for security for costs will in any way stifle the proceedings. Furthermore, the plaintiff accepts that, in these circumstances, there must be weighty reasons why an order for security for costs should not be made. In PS Chellaram &amp; Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321, McHugh J said (at 323): 'However, for over two hundred years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction.'
Case: Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590
Outcome: referred to
This principle is well-established and has been applied on a number of occasions: see, eg, Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 at 600-601 [38] - [41] per Weinberg J; Silveira v Australian Institute of Management [2001] FCA 1358 at [6] per Stone J; Balderrama v Commissioner for Australian Federal Police [2001] FCA 577 at [5] per Emmett J.
Case: Silveira v Australian Institute of Management [2001] FCA 1358
Outcome: referred to
This principle is well-established and has been applied on a number of occasions: see, eg, Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 at 600-601 [38] - [41] per Weinberg J; Silveira v Australian Institute of Management [2001] FCA 1358 at [6] per Stone J; Balderrama v Commissioner for Australian Federal Police [2001] FCA 577 at [5] per Emmett J.
Case: Balderrama v Commissioner for Australian Federal Police [2001] FCA 577
Outcome: referred to
This principle is well-established and has been applied on a number of occasions: see, eg, Logue v Hansen Technologies Ltd [2003] FCA 81 ; (2003) 125 FCR 590 at 600-601 [38] - [41] per Weinberg J; Silveira v Australian Institute of Management [2001] FCA 1358 at [6] per Stone J; Balderrama v Commissioner for Australian Federal Police [2001] FCA 577 at [5] per Emmett J.