mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Booth v State of Queensland [2003] FCA 418
Outcome: cited
The importance of the authorisation of a claim was emphasised by Tamberlin J in Booth v State of Queensland [2003] FCA 418 at [10] - [11] where his Honour said in relation to that case: The applicant must be authorised by all members of the Native Title Claim Group. In the present application the persons who compromise the Native Title Claim Group are not identified either by name or by reference or by any sufficient description. There is also a lack of evidence that the Native Title Claim Group, which is alleged to have authorised Mr Booth, had any applicable traditional decision-making process or that any particular process was followed. There is no evidence that the Native Title Claim Group agreed to and adopted some other decision-making process in relation to authorising the applicant to make the application. Nor is there any evidence that the process has been recognised or that any process has been followed. 35 These comments are equally applicable in the case before me. Other than an assertion by the applicant that the late Oodgeroo, the late Kath Walker, has authorised the applicant to make the application, and that such authorisation is through "Traditional Custom and Lore", there is no evidence that the applicant is authorised by the claim group, even to the extent that the claim group in this case can be identified. No details of the decisions that the claim group made are provided. There is no evidence of the process, or that any particular process was recognised or followed by the claim group (cf Booth [2003] FCA 418 at [11] ). 36 I again note the affidavit of Ms Waters which states that the Oodgeroo descendants are part of the Gonzales family group, one of 11 family groups forming the Quandamooka Claim group. QSNTS has submitted that there is no suggestion that the smaller family group, the Oodgeroo group, could establish particular rights and interests which the larger Quandamooka Claim group cannot. Further, I note the affidavits filed by Jonathon Patrick Malone sworn 23 January 2007 and Edward Ruska sworn 7 February 2007, who depose that they are members of the Noonukul of Minjerrabah and that they did not authorise the making of the Noonukul Application and were not advised of or involved in the process of authorisation.
Case: Briggs on behalf of the Gumbangirri People v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 141 FCR 17
Outcome: cited
As pointed out by Mansfield J in Landers 128 FCR at 504: "The proper identification of the native title claim group is the central focus or focal issue of a native title determination application. It is the native title claim group which provides authorisation under s 251B , and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made." (cf Briggs on behalf of the Gumbangirri People v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 141 FCR 17 at 25-26)
Case: Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364
Outcome: cited
I agree with the submission of QSNTS that the group is not described sufficiently so as to allow one to ascertain whether any particular person is in that group: cf Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at 379, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [1206] - [1225] ). Indeed, if anything, the descriptions of claimants provided in various places in the application are contradictory in that "the members of the family bloodline groups to the island of Minjerribah and the waters of Quandamooka" is clearly a larger group than the "identified descendants of Oodgeroo the Late Kath Walker". I note in this regard the affidavit of Ms Waters, consultant historian, sworn 24 January 2007, where she deposes that 11 family groups make up the Quandamooka Claim groups. 37 Accordingly in my view, and in circumstances where, despite the applicant's non-appearance in Court, the applicant has had an opportunity to put forward evidence in relation to this and other issues, I am satisfied that not only is there a lack of clarity as to the persons who make up the claim group, but that in any event the applicant was not authorised to make the application on behalf of such people of the claim group as have been identified. It therefore appears that the applicant is not authorised to make an application on behalf of all of the claim group. If the applicant represents a family subgroup which claims to hold native title, it is not the group which holds the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] , Dieri 127 FCR at 377, Hillig [2006] FCA 1115 at [60] ).
Case: Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31
Outcome: cited
I agree with the submission of QSNTS that the group is not described sufficiently so as to allow one to ascertain whether any particular person is in that group: cf Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at 379, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [1206] - [1225] ). Indeed, if anything, the descriptions of claimants provided in various places in the application are contradictory in that "the members of the family bloodline groups to the island of Minjerribah and the waters of Quandamooka" is clearly a larger group than the "identified descendants of Oodgeroo the Late Kath Walker". I note in this regard the affidavit of Ms Waters, consultant historian, sworn 24 January 2007, where she deposes that 11 family groups make up the Quandamooka Claim groups.
Case: Hillig as administrator of the Wormi Local Aboriginal Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 115
Outcome: cited
QSNTS submits that if the claim group has not been properly identified in accordance with s 61(4) , then it is not possible for the claim to be authorised in a manner which complies with ss 61 , 62 and s 251B , even if the requirements in s 251B are met. QSNTS cites Hillig as administrator of the Wormi Local Aboriginal Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 115 at [70] in support. 32 QSNTS further submits that in any event, the Noonukul Application does not meet the authorisation requirements of s 61(1) and s 251B. Indeed, QSNTS submit that there is simply no evidence presented that any type of authorisation process was followed to authorise the making of the Noonukul Application. 33 Part A s 2 of the Form 1 of the Native Title Act "Native Title Determination Application Claimant Application" provides for details about authorisation. The applicant asserts in that part of the Noonukul Application that: This Application has been authorised pursuant to s 251B(1)(a) of the Native Title Act 1993 ... The Applicant has been authorised to make this application for a claim over the determination area through Traditional Custom and Lore by the authority of the late Oodgeroo the late Kath Walker and carry out the business pertaining to it. 37 Accordingly in my view, and in circumstances where, despite the applicant's non-appearance in Court, the applicant has had an opportunity to put forward evidence in relation to this and other issues, I am satisfied that not only is there a lack of clarity as to the persons who make up the claim group, but that in any event the applicant was not authorised to make the application on behalf of such people of the claim group as have been identified. It therefore appears that the applicant is not authorised to make an application on behalf of all of the claim group. If the applicant represents a family subgroup which claims to hold native title, it is not the group which holds the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] , Dieri 127 FCR at 377, Hillig [2006] FCA 1115 at [60] ).
Case: Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495
Outcome: cited
The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221). 26 As pointed out by Mansfield J in Landers 128 FCR at 504: "The proper identification of the native title claim group is the central focus or focal issue of a native title determination application. It is the native title claim group which provides authorisation under s 251B , and it is the group on whose behalf the claim is then pursued and, if successful, in whose favour a determination of native title is then made." (cf Briggs on behalf of the Gumbangirri People v Minister for Lands for the State of New South Wales [2004] FCA 1056 ; (2004) 141 FCR 17 at 25-26)
Case: McKenzie v State Government of South Australia (2005) 214 ALR 214
Outcome: cited
The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: cited
Accordingly in my view, and in circumstances where, despite the applicant's non-appearance in Court, the applicant has had an opportunity to put forward evidence in relation to this and other issues, I am satisfied that not only is there a lack of clarity as to the persons who make up the claim group, but that in any event the applicant was not authorised to make the application on behalf of such people of the claim group as have been identified. It therefore appears that the applicant is not authorised to make an application on behalf of all of the claim group. If the applicant represents a family subgroup which claims to hold native title, it is not the group which holds the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] , Dieri 127 FCR at 377, Hillig [2006] FCA 1115 at [60] ).
Case: Thomas v State of South Australia [2004] FCA 951
Outcome: cited
The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).
Case: Williams v Grant [2004] FCAFC 178
Outcome: applied
Notwithstanding these distinctions, the Courts have tended to equate the consequences of strike-out under s 84C with those of summary dismissal under O 20 r 2. As observed by Lander J (North and Dowsett JJ agreeing) in Williams v Grant [2004] FCAFC 178: [48] Section 84C only applies to applications which do not comply with ss 61 , 61A and 62 . However, an application under s 84C, if successful, has the very serious consequence that the native title application is struck out. Such a result is akin to a court proceeding being summarily dismissed, or at least dismissed before any hearing on the merits. No court proceeding is summarily dismissed except in a very clear case: Dey v Victorian Railways Commissioner [1949] HCA 1 ; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125 at 129. [49] Applications for native title are brought by representatives of the native title claim group. The dismissal of an application because, for example, the applicant has not been authorised means the dismissal of the native title claim group's claim. The repercussions, therefore, are far reaching. I see no reason why an application to strike out a native title claim under s 84C should be treated any differently to any other application to dismiss a claim summarily. The power should be exercised sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply. Section 84C assumes that a party might respond to a strike out application by amending the claim to comply with the requirements of the Act. A claim can be amended without obtaining leave. 18 The cautious approach of the Court as described in Williams [2004] FCAFC 178 was more recently reaffirmed by the Full Court in Bodney 140 FCR at 89, where Stone J (with whom Spender and Branson JJ agreed on this point) said that notwithstanding the operation of s 84C in the context of native title applications, the Court approaches strike-out applications under this section in the same way as applications under O 20 r 2 Federal Court Rules (see also Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at 497, Thomas v State of South Australia [2004] FCA 951 at [2] - [3] , McKenzie v State Government of South Australia (2005) 214 ALR 214 at 221).
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: cited
Observations concerning the meaning of effect of s 424A were made by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , at 1195 1196, [15] [17]. In the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ, one there finds the following in para 15: Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review". 9 And then in para 17: The "reason, or a part of the reason for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light it is difficult to see why the relevant passages in the appellant's statutory declaration would itself be "information that the Tribunal considers would be the reason, or part of the reason for, affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellant's claims to be persons to whom Australia owed protection obligations. 10 Appended to the protection visa application was a statement of the male Appellant. That statement provided the basis upon which a claim for a protection visa was made. It also provided, for the reason which I have already given, the basis upon which the Appellant's wife advanced her claim. The basis of the claim for a protection visa, as there made, was not enlarged upon in the proceedings of the Tribunal. That is because, though invited to attend at a hearing and present evidence, the Appellant and his wife did not take advantage of that opportunity. The Tribunal, then, as it was entitled to do under the Migration Act 1958 , decided the case on the basis of the material which it did have, and that material, in essence, was the statement to which I have referred.
Case: Chan Ta Srey v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1292
Outcome: followed
In Chan Ta Srey v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1292 , Gray J, after referring to Zhan , held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no "notification" with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f). In any event, the parties accepted that if I should uphold Mr Pomare's submission that the notice did not comply with subpara 501G(1)(f)(iv), the matter should be remitted to the Tribunal to be heard and determined in accordance with law.
Case: Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 ; (2003) 128 FCR 469
Outcome: followed
In Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 ; (2003) 128 FCR 469 ( Zhan ), Allsop J had to deal with an alleged failure of a written notice to comply with s 66(2) of the Act. That provision related to notification of a decision to refuse an application for a visa. In the circumstances, the notification was required to state where an application for review of the decision could be made (subpara 66(2)(d)(iv) of the Act). His Honour said (at [64]) that the purpose of such a statement was to give information as to where the applicant could "make the application", that is, "initiate it". His Honour's statement is consistent with my holding above. 28 In Zhan , the applicant was told that lodgement of documents had to be at "a registry of the Tribunal" and no address was given. A leaflet giving that information was not included with the letter. His Honour left open the possibility that identification of "registries" of the Tribunal in the telephone directory might have sufficed to supply the meaning of the expression "a registry of the Tribunal", but the fact was that the telephone directory did not specify that the address given in it was that of a "registry". Allsop J remarked (at [65]) that the address given in the telephone directory might have been the Tribunal's head office or the site of some other activity of the Tribunal. 29 The word "registry" assumed a special significance in Zhan because of its appearance in the letter a feature that is absent from the present case. In this respect Zhan is distinguishable. 30 Counsel for the Minister submits, correctly, that the facts of the present case are different from those in Zhan because the written notice in the present case did state "the Tribunal at GPO Box 9955". However, as noted earlier, the Minister correctly concedes that an application would not be received by the Tribunal and therefore would not be made to the Tribunal when it reached that address. If an applicant led evidence to support an inference that an application reached the nominated post office box, it would nonetheless be open to the Minister to defeat the application by proving that the application was not in fact received in the registry office of the Tribunal. 31 In Chan Ta Srey v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCA 1292 , Gray J, after referring to Zhan , held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no "notification" with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f). In any event, the parties accepted that if I should uphold Mr Pomare's submission that the notice did not comply with subpara 501G(1)(f)(iv), the matter should be remitted to the Tribunal to be heard and determined in accordance with law.
Case: Ancher, Mortlock, Murray &amp; Wooley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278
Outcome: cited
Thus, quite apart from Darrell Lea's criticisms, the Court is entitled, and indeed bound, to form its own views on the evidence, including, but by no means limited to, the opinions of the Cadbury experts. It was put that by choosing not to adduce any expert evidence, Darrell Lea "effectively accepts the (Cadbury) expert evidence" and that in accordance with Browne v Dunn "Darrell Lea is now estopped from making any submissions that the expert evidence is incorrect". I do not accept this submission. In Ancher, Mortlock, Murray &amp; Wooley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278, a copyright infringement case concerning house plans, Street J said at 286: In view of the volume of expert evidence, and the differing views expressed by the expert witnesses, I should state the use that can properly be made of that evidence in reaching a decision in a suit such as this. The decision upon the issue of similarity is an original decision for the court itself. It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans or buildings under consideration. The fact that one particular expert of the highest authority and of unimpeachable credit is permitted to swear to an opinion on similarity or dissimilarity does not relieve the court of the responsibility of forming its own opinion on this issue. In this sense the expert evidence in a suit such as the present fills a somewhat unusual role. It is almost as if each side calls an expert to argue out with counsel in examination-in-chief and cross-examination the similarity or dissimilarity which that particular expert sees between the plans and houses. By attending to the progress of this argumentative process between counsel and expert the court is enabled to perceive and more readily to appreciate the points of similarity and dissimilarity. In this way the tendering of expert evidence is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed. But the important point is that, in distinction from the judicial process in relation to expert evidence such as is normally encountered in litigation, a court in the present type of litigation is entitled, and, indeed, bound, to form and act on its own original opinion. His Honour's approach would seem to apply a fortiori in a case concerning the retail marketing of everyday consumer products.
Case: Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183
Outcome: cited
As to the application of Browne v Dunn in modern commercial litigation, see also Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd (1998) ATPR (Digest) |P 46-183 at 50,323, approved on appeal: J McPhee &amp; Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532 at [103] - [107] .