mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: cited
It is well-accepted that "[t]he proper identification of the native title claim group is the central or focal issue of a native title determination application": Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [35] . It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774. 35 I would add that it is unsurprising that the definition of the group itself suffers the above vices. Mr Reid's claim seeks to replace the Kokatha Native Title claim. The claim group itself reflects a house divided. The consequences of this becomes the more apparent when one turns to the authorisation requirement: cf the comments of Mansfield J in Landers at [38]. 36 I consider that the application does not comply with the requirements of s 61 of the Act. 37 The evidence on authorisation has been set out above. While the Form 1 suggests three distinct bases of authorisation (i) self-authorisation, (ii) authorisation by Elders of surrounding Western Desert Tribes and (iii) authorisation by KPC members at a meeting on 17 March 2007 the application itself does not betray whether these are intended to be alternative or cumulative. What is said in the Form 1 is not replicated precisely in the accompanying affidavit. No reference is made to self-authorisation. I note in passing that (i) there is no evidence provided by Mr Reid that the enumerated claim group acknowledge his power of self-authorisation; and (ii) Mr Reid has attempted to secure the signatures of some, but by no means all, of the listed claim group both to a copy of the list and to an attached claim map both unnecessary steps if Mr Reid could self-authorise. Equally in Attachment R, reference is made to Elders at the Spear Creek meeting and to the fact that some of those "have now authorized Mr Reid to attend to Kokatha Native Title matters". It is not at all clear whether these Elders were Western Desert Elders (as para 3 of Part A2 of Form 1 might suggest), or were Kokatha Elders (as the Attachment R comments on the KPC meeting would suggest).
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. The second is that where the class membership is described, not listed, there must be descriptive certainty of the class, i.e. the application must describe the persons who are within the class "sufficiently clearly so that it can be ascertained whether any particular person is one of those persons": cf 61(4)(b) and McKenzie at [42]-[43]. 29 I have noted above the tie between group membership and authorisation. Of the significance of authorisation I need do more than gratefully adopt what was said by Lindgren J in Harrington-Smith (No 9) at [1171]-[1172]: "'Proper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 of the new Act': Perry and Lloyd , Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240."
Case: McKenzie v State of South Australia (2005) 214 ALR 214
Outcome: cited
The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. The second is that where the class membership is described, not listed, there must be descriptive certainty of the class, i.e. the application must describe the persons who are within the class "sufficiently clearly so that it can be ascertained whether any particular person is one of those persons": cf 61(4)(b) and McKenzie at [42]-[43].
Case: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 
Outcome: cited
Finally I should note that s 84C(1) provides that, if an application does not comply with s 61, s 61A or s 62, a party to the proceedings may at any time apply to this Court to strike it out. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77. 31 It is submitted by the State that the described native title claim group is flawed in two respects: (i) it is descriptively uncertain in that, beyond the listed members, the group may be expanded to include persons of certain characteristics at the discretion of certain people: see para 4-6 of Attachment A quoted earlier; and (ii) the present group is only part of the group acknowledged by Mr Reid to be capable of being brought within it as witness the exclusion of persons previously acknowledged by him and by Kokatha lawmen to be representatives of the Kokatha people, the suggestion that Mr Reid is able to add thousands to the claim group and the assertion that members of the claim group are members of the KPC, although as such they bring a claim "for Kokatha people": see the affidavit accompanying the application quoted above. 32 It is unnecessary for me to express a concluded view on the former the descriptive uncertainty submission as I am satisfied that the claim group as described is merely part of a group. Nonetheless, I would comment that there is an arguable case of uncertainty in the description of the possible members who may be given entry to the group in the future. These are envisaged by clauses 4 to 6 of Attachment A. They may or may not be admitted to the group at the discretion of KPC elders. Leaving to one side the arresting character of the stated criteria of cl 4 (prior attendance and participation in KPC meetings etc), there is nothing to suggest that the discretions given are a product of, and are to be informed by, the traditional laws acknowledged and the traditional customs observed by the aboriginal peoples holding the native title rights and interests in question. The clauses may well be vulnerable at this point for this reason.
Case: Briggs v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 209 ALR 75
Outcome: cited
Attachment A to the application indicates that the listed members of the claim group are KPC members. The KPC constitution ties membership to acceptance by Mr Reid. The KPC, though, is not a holder of native title rights and interests. Neither can it authorise a native title claim: cf Briggs v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 209 ALR 75. A native title group whose members are the members of an incorporated association may, where there is no relevant and mandatory traditional decision making process applicable to the making and conduct of a claimant application, agree to and adopt a process for those purposes: see s 251B(b) and Bolton v State of Western Australia [2004] FCA 760 at [44] . There is no reason in principle to prevent them agreeing to, and adopting a process which utilises a meeting of their association. But, as French J indicated in Bolton at [44], the s 251B(b) requirement necessitates that the authorisation process must be able to be traced to a decision of the native title group who adopt that process.
Case: Bolton v State of Western Australia [2004] FCA 760
Outcome: cited
Attachment A to the application indicates that the listed members of the claim group are KPC members. The KPC constitution ties membership to acceptance by Mr Reid. The KPC, though, is not a holder of native title rights and interests. Neither can it authorise a native title claim: cf Briggs v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 209 ALR 75. A native title group whose members are the members of an incorporated association may, where there is no relevant and mandatory traditional decision making process applicable to the making and conduct of a claimant application, agree to and adopt a process for those purposes: see s 251B(b) and Bolton v State of Western Australia [2004] FCA 760 at [44] . There is no reason in principle to prevent them agreeing to, and adopting a process which utilises a meeting of their association. But, as French J indicated in Bolton at [44], the s 251B(b) requirement necessitates that the authorisation process must be able to be traced to a decision of the native title group who adopt that process. 47 It is at this point of tracing back that the alleged authorisation's ineffectiveness becomes apparent. While there is evidence that the less than 20 of the 103 members of the claim group who were present at the meeting voted unanimously for the application to be made, there is no evidence at all that such notice of the meeting as was given, advertised other than that an AGM was to be held. There is nothing to suggest that the group members were being asked to agree to and adopt a non-traditional process for authorising a claimant application. This would, of itself, be enough to reject the legitimacy of the claimed authorisation process. Further, and in light both of the evidence on notice and of the limited attendance, there is no reasonably arguable basis on which one could infer that the meeting was fairly representative of the claim group: see Bolton at [46]. There is not, in my view, any arguable basis for contending that the meeting was in the circumstances adequate to satisfy the requirements of s 251B(b). 48 For the above reasons I have ordered that the application be struck out under s 84C of the Native Title Act . 49 I will order that my order suspending the above order be vacated.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: cited
The Court's general discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. In the exercise of that discretion the usual principle applied is that ordinarily costs follow the event so that a successful litigant receives costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 188 ALR 143 at [11] .
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Outcome: cited
The Court's general discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. In the exercise of that discretion the usual principle applied is that ordinarily costs follow the event so that a successful litigant receives costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 188 ALR 143 at [11] .
Case: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 188 ALR 143
Outcome: cited
The Court's general discretion to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). It is well accepted that the general discretion conferred by s 43 is absolute and unfettered but that it must be exercised judicially and not on grounds unconnected with the litigation: see Cretazzo v Lombardi (1975) 13 SASR 4 at 11; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 732. In the exercise of that discretion the usual principle applied is that ordinarily costs follow the event so that a successful litigant receives costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis [2001] FCA 1865 ; (2001) 188 ALR 143 at [11] .
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534
Outcome: cited
The one additional comment I should make is that it is not proper to use the power to award costs to punish either a successful or an unsuccessful party: cf Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 566-567; or as a deterrent to other would-be applicants. I refer to these matters as Mr Reid clearly has been an irritant to others involved in the Kokatha Overlap Proceedings (SAD 6013 of 1998) and his stances and actions have, probably, in some degree impacted adversely upon their expectations in the conduct of those proceedings. 55 The parties have filed written submissions on this matter. I do not intend to outline them in any detail. I have had regard to them. There are, though, two matters arising out of the submissions made by Mr Reid's counsel to which I should refer lest he continue to labour under several obvious illusions. First, I did not strike out Mr Reid's claim because of an alleged misunderstanding arising out of responses he made to questions I asked him and to which I referred above at [11] to [13]. Secondly, I did not strike out the application for the reason that I did not want it to get in the way of a scheduled case management conference. 56 It is clear that the application itself was a product of Mr Reid's increasing dissatisfaction both with the conduct of the Kokatha Native Title claim and with the overlap proceedings (SAD 6013 of 1998) in relation to the Barngala applicants. Even though he had other avenues open to him to express his point of view after his unsuccessful attempt to strike out the Kokatha Native Title Claim, I am satisfied that his own application was brought in good faith and I am satisfied that as a litigant in person for all practical purposes, he acted reasonably in instituting the proceedings even though the application itself was misconceived when considered in light of the distinctive requirements of the Native Title Act . I am not prepared to assume in light of his previous involvements in proceedings relating to the Kokatha Native Title claim that he should be regarded as adequately versed in the mysteries of the Native Title Act and hence as bearing the risk of his misconceptions. Further, I am not satisfied that the timing of his application was informed by some improper motive and in particular that of disrupting the conduct of other proceedings to the extent of any overlap: see s 67 of the Act. I accept that health considerations and the paucity of advice and assistance go far to explain the timing of the application.
Case: MZXPH v Minister for Immigration and Citizenship (2007) FMCA 1620
Outcome: affirmed
This is an application for an extension to time to file and serve a notice of appeal from the judgment of a Federal Magistrate: MZXPH v Minister for Immigration and Citizenship [2007] FMCA 1620 , delivered on 12 October 2007. The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal dated 22 January 2007. The Tribunal had affirmed a decision of the delegate of the Minister to refuse to grant the applicant a protection visa. 2 The applicant claimed to have a well-founded fear of persecution on the basis of membership of a particular social group and actual or imputed political opinion. He claimed to fear persecution from one Anuradda Ratwatte, the Defence Adviser to the Sri Lankan president. He claimed his grandfather, who was a police officer, had allegedly been threatened by Ratwatte during Sri Lankan elections and later murdered. He claimed his father, a former assistant superintendent of police, had previously arrested a number of members of the SLFP, Ratwatte's party. His father had been imprisoned on false charges but later acquitted on appeal. Since 1995 when Ratwatte's party gained power the appellant and his family have been harassed and threatened by Ratwatte's henchmen. 3 The applicant also claimed that fresh warrants for murder had been issued against his father, who now lives overseas, and that if he returned to Sri Lanka he would be detained until his father handed himself in. The applicant further claimed that he feared persecution because he was a United National Party supporter and former employee, and shared a close relationship with a number of UNP politicians.
Case: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: considered
As the High Court reaffirmed in SZBEL at [26], the particular content to be given to the requirement to accord procedural fairness will depend on the facts and circumstances of the particular case. The Tribunal is required to identify any issue critical to the decision (at [29], citing Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 2). In identifying the requisite opportunity to be heard, the applicant is entitled ' to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material ' ( Alphaone at 590-1; SZBEL at [32]). The High Court (at [33]) emphasised the importance of the reference in s 425 of the Act to ' the issues arising in relation to the decision under review '.
Case: SZJUB v Minister for Immigration &amp; Anor [2007] FMCA 325
Outcome: cited
I granted leave to the appellant to appeal from a decision of Smith FM ( SZJUB v Minister for Immigration &amp; Anor [2007] FMCA 325). His Honour dismissed her application, under rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 , for a review of the Tribunal decision affirming the decision of a delegate of the first respondent ('the Delegate') to refuse her application for a protection visa. That application was based on an alleged failure of the Tribunal to comply with ss 424A(1) and 425 of the Migration Act 1958 (Cth) ('the Act'), an alleged reasonable apprehension of bias on the part of the Tribunal and an alleged denial of procedural fairness. The appellant initially appeared without representation. I made an order under Order 80 rule 4 of the Federal Court Rules for legal assistance to be provided to the appellant. Ms Nolan of counsel now appears, pro bono. 2 The amended notice of appeal raises two grounds of appeal, namely, that the Federal Magistrate failed to find: &#8226; jurisdictional error on the part of the Tribunal by failure to consider an integer of the appellant's claim to hold a well-founded fear of persecution for reasons of religion; and &#8226; denial of procedural fairness by the Tribunal, thereby a breach of s 425 of the Act by failing to identify for the appellant at the Tribunal hearing the issues arising in relation to the decision under review. 3 It is not necessary to canvass the background facts relating to the appellant in any detail. In essence and relevantly the appellant claimed that: &#8226; During a difficult period in her life the appellant was assisted by a friend (Ms W) in opening a beauty salon in her home town. In the middle of 2001, Ms W went missing. The appellant learned from the police that Ms W had been suspected of smuggling Bibles into China. The appellant was later contacted by Ms W and asked to smuggle Bibles into China. Ms W said that she needed ' a reliable person who did not have any religious background ' and who was not associated with the Shouters (an underground Christian religious organisation to which Ms W belonged). The appellant agreed to smuggle the Bibles. &#8226; The appellant's beauty salon became a "secret station" for the smuggling. Later, Ms W advised the appellant to leave home as the police had been informed. She left China with a false passport. &#8226; In the application for a protection visa ('the visa application') the appellant stated her religion as "Christian". &#8226; In the statutory declaration that accompanied the visa application, the appellant made no claim to fear persecution on the basis of her own Christianity. She claimed that, as a person who had smuggled Bibles into China, she would be regarded as a Christian or as a person who engaged in smuggling Bibles.