mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Daniel v Western Australia [2002] FCA 1147
Outcome: referred to
As has been often observed, proper authorisation is fundamental to the legitimacy of native title applications (see e.g. Quall v Risk [2001] FCA 378 at [67] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Quandamooka People (No 1) v State of Queensland [2002] FCA 259 at [25] ; Moran v Minister of Land and Water Conservation for New South Wales [1999] FCA 1637 at [48] ; Daniel v Western Australia [2002] FCA 1147 at [11] .
Case: Risk v Northern Territory [2006] FCA 404
Outcome: referred to
It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404 ; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.
Case: Bodney v State of Western Australia [2003] FCA 890
Outcome: discussed
Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules . That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 ; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.
Case: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406
Outcome: referred to
Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules . That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 ; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.
Case: Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483
Outcome: referred to
In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].
Case: Risk v National Native Title Tribunal [2000] FCA 1589
Outcome: referred to
In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].
Case: Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240
Outcome: referred to
In my view, on his own material, those two clans are a mere subset of the FRBG. It is therefore inappropriate that they should constitute the native title claim group: see e.g. Ward v Western Australia [1998] FCA 1478 ; (1998) 159 ALR 483 at 581; Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Tilmouth v Northern Territory [2001] FCA 820 ; [2001] 109 FCR 240 at 241-242; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ; Landers v South Australia [2003] FCA 264 ; [2003] 128 FCR 495 at 504; and Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 at [1209]-[1217].
Case: Energy Australia v Australian Energy [2001] FCA 1049
Outcome: referred to
Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules . That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 ; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.
Case: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Outcome: referred to
Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules . That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give "connection" evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406 ; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.
Case: Bathurst City Council v PWC Properties Pty Limited [1998] HCA 59 ; (1998) 195 CLR 566
Outcome: cited
addition, ss 13H(1) and (2) and 13J of the RP Act are directed to creating an estate in fee simple held by or in the name of the State. That is not necessarily inconsistent with the Crown, in the case of a disclaimer, before any order is made under s 133(9) of the Bankruptcy Act or s 568F of the Corporations Act , holding the land in trust for statutory purposes, namely pending the determination of the Court as to the person in whom the property should vest. Trusts can exist for statutory purposes, as opposed to being confined to trusts for persons: Fouche v Superannuation Fund Board [1952] HCA 1 ; (1952) 88 CLR 609 at 640641 per Dixon, McTiernan and Fullagar JJ; Bathurst City Council v PWC Properties Pty Limited [1998] HCA 59 ; (1998) 195 CLR 566 at 592 [67] per Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
Case: Beale v Symonds [1853] EngR 168 ; (1853) 16 Beav 406 at 413 [51 ER 835 at 838]
Outcome: discussed
re Stone; Read v Dubua (1936) 36 SR (NSW) 508 at 517 Jordan CJ, with whom Davidson J agreed, said that at common law if a cestuis que trust or mortgagor of land died without heirs and intestate, the trustee or mortgagee in whom the legal estate had vested henceforth held the land free from the trusts or from the equity of redemption and the doctrine of escheat did not apply. Escheat could not occur if the Crown or the mesne lord had a tenant: 10 Halsbury's Laws of England (2 nd ed) 616 [907]. In Beale v Symonds [1853] EngR 168 ; (1853) 16 Beav 406 at 413 [51 ER 835 at 838] Sir John Romilly MR held that no escheat occurred if a legal tenant was in possession of land (even if he or she were originally a trustee and the cestuis que trust had died without heirs and no further beneficiary had been identified in the trust deed or conveyance to take the beneficial interest). He followed the decision of Lord Henley (Lord Keeper) and Clarke MR, Lord Mansfield CJ dissenting, in Burgess v Wheate [1757] EngR 5 ; (1759) 1 Eden 177 [28 ER 652] finding that a mortgagee, who held the legal title in fee to land in consequence of a mortgage from a deceased who died intestate without heirs, first, did not lose the title by escheat but, secondly, could not deal with it as absolute owner free of the equity of redemption being available to discharge any subsisting (enforceable) debts of the deceased: Beale 16 Beav at 415-416; [51 ER at 839].
Case: Burgess v Wheate [1757] EngR 5 ; (1759) 1 Eden 177 [28 ER 652]
Outcome: discussed
re Stone; Read v Dubua (1936) 36 SR (NSW) 508 at 517 Jordan CJ, with whom Davidson J agreed, said that at common law if a cestuis que trust or mortgagor of land died without heirs and intestate, the trustee or mortgagee in whom the legal estate had vested henceforth held the land free from the trusts or from the equity of redemption and the doctrine of escheat did not apply. Escheat could not occur if the Crown or the mesne lord had a tenant: 10 Halsbury's Laws of England (2 nd ed) 616 [907]. In Beale v Symonds [1853] EngR 168 ; (1853) 16 Beav 406 at 413 [51 ER 835 at 838] Sir John Romilly MR held that no escheat occurred if a legal tenant was in possession of land (even if he or she were originally a trustee and the cestuis que trust had died without heirs and no further beneficiary had been identified in the trust deed or conveyance to take the beneficial interest). He followed the decision of Lord Henley (Lord Keeper) and Clarke MR, Lord Mansfield CJ dissenting, in Burgess v Wheate [1757] EngR 5 ; (1759) 1 Eden 177 [28 ER 652] finding that a mortgagee, who held the legal title in fee to land in consequence of a mortgage from a deceased who died intestate without heirs, first, did not lose the title by escheat but, secondly, could not deal with it as absolute owner free of the equity of redemption being available to discharge any subsisting (enforceable) debts of the deceased: Beale 16 Beav at 415-416; [51 ER at 839].
Case: English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6 ; (1937) 57 CLR 302
Outcome: discussed
RP Act continued the system of Torrens title that had been introduced in New South Wales from 1 January 1863 by the Real Property Act (26 Vic No 9) (see s 2). That system applied to land under the operation of the RP Act . The RP Act expressly provided in s 2(4) that it was intended to override all pre-existing statutes, regulations and "practice whatsoever relating to freehold and other interests in land" under or brought under the provisions or operation of that Act. However, this still left lacunae where concepts inherent in estates or interests in or affecting land under the provisions of the RP Act were themselves not fully fleshed out or explained in that enactment: cf English Scottish and Australian Bank Ltd v Phillips [1937] HCA 6 ; (1937) 57 CLR 302 at 324 per Dixon, Evatt and McTiernan JJ. Under s 3(1) of the RP Act (if not inconsistent with the context and subject matter), a mortgage was defined as meaning "[a]ny charge on land ... created merely for securing the payment of a debt"; a mortgagee as "[t]he proprietor of a mortgage"; and a proprietor as "[a]ny person seised or possessed of any freehold or other estate or interest in land at law or in equity in possession in futurity or expectancy".
Case: Ex parte Cleland &amp; Teesdale Smith [1960] SASR 199
Outcome: cited
position identified by Jessel MR was accepted as correct in relation to disclaimers by liquidators and trustees in bankruptcy in a series of Australian cases decided prior to the enactment of ss 13H and 13J of the RP Act , and collected by Bowen CJ in Eq in Re Middle Harbour Investments Ltd and the Companies Act [1977] 2 NSWLR 652 at 662A-G, see too at 662G-664G; and Needham J in Re Tulloch Ltd 3 ACLR at 812-813 (followed by Madgwick J in In the Matter of Woo; National Australia Bank v Leroy [2003] FCA 862 at [10] ); see too the discussions by Napier CJ in Ex parte Cleland &amp; Teesdale Smith [1960] SASR 199 at 209, Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 563B-566A (who did discuss ss 13H and 13J) and by EM Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75 ; (2007) 239 ALR 799 at 800-802 [6] - [11] . In Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales (2006) 59 ACSR 682 , Gyles J held that where land had been purchased by a company using grant moneys from a Commonwealth body that later was wound up and the liquidator disclaimed the land, it should be ordered pursuant to s 568F of the Corporations Act 2001 (Cth) to vest in the Commonwealth, the State having submitted to any order the Court might make.
Case: Fouche v Superannuation Fund Board [1952] HCA 1 ; (1952) 88 CLR 609
Outcome: cited
addition, ss 13H(1) and (2) and 13J of the RP Act are directed to creating an estate in fee simple held by or in the name of the State. That is not necessarily inconsistent with the Crown, in the case of a disclaimer, before any order is made under s 133(9) of the Bankruptcy Act or s 568F of the Corporations Act , holding the land in trust for statutory purposes, namely pending the determination of the Court as to the person in whom the property should vest. Trusts can exist for statutory purposes, as opposed to being confined to trusts for persons: Fouche v Superannuation Fund Board [1952] HCA 1 ; (1952) 88 CLR 609 at 640641 per Dixon, McTiernan and Fullagar JJ; Bathurst City Council v PWC Properties Pty Limited [1998] HCA 59 ; (1998) 195 CLR 566 at 592 [67] per Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
Case: In re Mercer and Moore (1880) 14 Ch D 287
Outcome: discussed
he dealt with a mortgagee's position after a disclaimer of land by a trustee in bankruptcy of the mortgagor under s 23 of the Bankruptcy Act 1869 (Imp), Sir George Jessel MR despaired that there was no one entitled to take the estate except the Crown, and continued in In re Mercer and Moore (1880) 14 Ch D 287 at 295-296: "This, however, is no way of getting out of the difficulty indeed you get into a worse difficulty here, for how are you to get the estate out of the Crown again? There are no means that I know of except by actual grant or by the will of the Crown to get back a legal estate, which would be a very awkward result and very prejudicial to many titles in this part of the country, especially where these titles are very common. If that is not so, I do not know where the estate is." After noting up these difficulties with the operation of the doctrine his Lordship commented: As I have said before, I am not sure here that the estate is in the Crown, but if it is not in the Crown I do not know where it is. At all events it is not in the trustee in bankruptcy, and has not been conveyed, therefore, to the present vendors. Therefore they cannot convey to the present purchasers. I have looked into the Trustee Act , and I do not see any mode of getting in the legal estate. The Trustee Act does not provide for want of an heir. The English legislation provided that after a disclaimer, any person interested in any disclaimed property could apply to the court and it could make orders for the possession of the property (see 14 Ch D at 290).