mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158
Outcome: cited
Even where jurisdiction is lacking as a result of invalidity of the legislation purporting to confer jurisdiction, an order of a superior court will be binding until set aside. In Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158, the High Court considered the effect of orders for winding up made by the Federal Court pursuant to jurisdiction purportedly conferred by invalid legislation. The High Court concluded that the orders of the court were binding until set aside despite the absence of jurisdiction. Gaudron J stated (at 185-187 [52]-[57]): '...the Constitution expressly contemplates that federal courts might be empowered to make decisions with respect to their own jurisdiction which are binding until set aside. In establishing the Federal Court as "a superior court of record", the Parliament has, at the very least, validly authorised that Court to make a binding determination on the question whether or not it has jurisdiction in a matter, subject only to the parties' right to appeal or to seek relief pursuant to s 75(v) of the Constitution . And, if the Federal Court determines that it has jurisdiction, it is obliged, subject only to limited and well recognised exceptions, to exercise that jurisdiction to determine the rights and liabilities in issue. That is the nature of judicial power. The practical consequence of those two considerations is that, by operation of s 109 of the Constitution , orders of the Federal Court, even if made without jurisdiction, are final and binding unless set aside on appeal or pursuant to s 75(v) of the Constitution . ... It follows from what has been said with respect of s 5(2) of the Federal Court Act that an order of the Federal Court made without jurisdiction is not a nullity.' (footnotes omitted) 49 Gummow J and Kirby J took a similar approach: see 235-237 [214]-[220] and 248-249 [254]-[256] respectively. McHugh J also agreed that the orders were binding until set aside in so far as they impliedly determined that the Federal Court had jurisdiction (at 215 [151]). Hayne and Callinan JJ expressed reservations about whether orders made by the Federal Court in relation to matters beyond the Commonwealth's legislative competence would be binding, but nonetheless stated (at 279 [344]): 'The practical consequence...is that orders made by the Federal Court are valid until they are set aside. That is so because implicit in an assertion of jurisdiction is the conclusion about the constitutional validity of that assertion. For the reasons given earlier, the authority to decide and the power to provide that the order is binding until set aside is sufficiently rooted in ss 77 and 76.'
Case: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369
Outcome: cited
However, as was observed by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369 at 391: 'It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the actual legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and order must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.'
Case: Bray v F Hoffman-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1
Outcome: cited
See also the discussions in Bray v F Hoffman-La Roche Ltd [2002] FCA 243 ; (2002) 118 FCR 1 at 57-58 [197] . 52 APRA's claims against Siminton constituted a justiciable dispute arising under the Act, which is a law made by the Federal Parliament. The jurisdiction of the Court in respect of that dispute is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) which confers jurisdiction on the Federal Court in any matter arising under any laws made by the Federal Parliament. It is unnecessary to consider if it also arises under s 39B(1A)(a). Section 65A of the Act and s 23 of the Federal Court Act 1976 (Cth) plainly conferred power to make the Sundberg J orders. In particular, s 65A conferred power on the Court to grant 'an interim injunction' pending determination of an application for an injunction under s 65A(1). The jurisdiction exercised by Sundberg J was one in which his Honour was given power to determine the facts upon which his jurisdiction was based. It was not a jurisdiction that was preconditioned upon facts or any other matters which his Honour was not given the power to determine. Accordingly, the orders were valid and binding until set aside even if, contrary to my findings, there was an excess or absence of jurisdiction. 53 For the above reasons, the arguments of Siminton as to absence of jurisdiction to make the Sundberg J orders are without substance and are to be rejected. 54 It follows that the charges the subject of the disposal and website allegations have been established beyond reasonable doubt and that the charges the subject of the failure to file allegations are to be dismissed. I propose to give directions for a further hearing in relation to penalty. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel J. Associate: Dated: 30 March 2006 Counsel for the Applicant: D Sharp Solicitor for the Applicant: Erhardt &amp; Associates Counsel for the Respondent: D Mortimer SC with St J Hibble and V Priskich Solicitor for the Respondent: Australian Prudential Regulation Authority Date of Hearing: 29 March 2006 Date of Judgment: 30 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/326.html
Case: Australian Securities and Investments Commission v Rich [2006] NSWSC 643 ; (2006) 201 FLR 207
Outcome: followed
In Australian Securities and Investments Commission v Rich [2006] NSWSC 643 ; (2006) 201 FLR 207 at [9] , Austin J said that in his opinion s 26 of the Evidence Act is subject to s 192. As his Honour observed, s 192 provides that in granting leave or making a direction, the Court is to take into account, amongst other things, the powers which it has to make another order or to give directions in relation to evidence; see s 192(2)(e) of the Evidence Act . Austin J was of the view that the Court could not make a determination under s 26 of the Evidence Act as sought in that case because it was premature; see Rich at [15]. His Honour was of the view that the Court was not yet in a position to identify or assess all of the matters which must be taken into account in deciding whether to give a direction. 8 That seems to me to be the position in the present case. I will have, at the trial, power to make orders under a number of sections of the Evidence Act , including s 38 which deals with unfavourable witnesses, s 41 which deals with improper questions and, in particular, s 42 which deals with the power of the Court to limit or disallow the use of leading questions where, for example, a witness has an interest consistent with an interest of the cross-examiner or where the witness is sympathetic to the party conducting the cross-examination. It is unnecessary to address in these reasons the triggers for the operation of the powers conferred by those sections.
Case: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Outcome: approved
It does seem to me as Young J said in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 17 that the course of trials in NSW has always been for a party calling the witness to examine the witness in chief and for all other parties to test the evidence by cross-examination, and then for the person calling the witness to re-examine the witness. 10 I do not see that anything that has been put to me this morning justifies me, at present, in departing from the ordinary course. Whilst there appears to be power to do so under s 26 , as I have said, it is in my view premature for any such order to be made. I think that the appropriate course is for the trial to take place in the ordinary way with objections to evidence being taken as and when they arise. 11 If the jurisdictional triggers set forth in s 38 are enlivened, then no doubt ASIC will make an appropriate application in the course of the hearing. I am, of course, anxious for the trial to proceed in the most efficient and expeditious manner as possible but I am unable to see any reason, at this stage, for making the orders sought in the notice of motion either in the form as filed or in the way in which it was confined by Mr Stevenson during argument.
Case: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513
Outcome: cited
The matters for consideration under s 84(5) of the Act, as in force, in respect of Worimi's motion are: (1) Does Worimi have an interest within the meaning of s 84(5) of the Act? (2) May that interest be affected by a determination in the proceedings? (3) In any event, should the Court exercise its discretion to join Worimi as a respondent? ( Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [32] not the subject of comment by Gyles and Sundberg JJ on appeal in Gamogab v Akiba [2007] FCAFC 74).
Case: Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315
Outcome: cited
In Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315, Branson J ordered the joinder of Mr Kemp, who did not wish himself to advance a claim for native title, to a proceeding for a determination of native title. Mr Kemp's interest as a descendant of the Pirripaayi people, was to avoid the making of a determination by the Court that discounted the traditional connection which he believed to exist between the Pirripaayi people and the land. Her Honour (at [28]) was of the view that this was an interest that satisfied the Byron test and was relevantly affected by the determination (at [27]). Justice Branson contrasted that interest with Mr Kemp's interest in establishing and maintaining the integrity of his own research and dissemination of his knowledge of Pirripaayi language and culture. The latter interests were characterised as "indirect" interests which fell outside the Byron test (at [27]). 16 Worimi satisfies that test. As in Davis-Hurst at [27], Worimi is seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Worimi people and the Land. Worimi's interest is that of a person who claims that native title exists over the Land. That interest is not indirect, remote or lacking in substance. It is not advanced as an interest of an emotional kind. It is clearly directly affected by a declaration that there is no native title. It is not remote or insubstantial. The Land Council submits that it can be no more than a belief. However, Worimi asserts that native title exists, founded on evidence that was not tested. There was no evidence on this application for joinder to contradict Worimi's evidence or to demonstrate that it fails to satisfy the Byron test. The findings in Hillig (No 2) and Worimi do not extend to a determination that native title does not exist or to a rejection of Worimi's factual assertions. Those decisions covered the failure of Worimi to comply with the requirements of the Act in relation to claimant applications. It has not yet been determined whether Worimi's belief is or is not well-founded. 25 Justice Emmett recognised in Munn at [8] that the holder of a native title interest may have sufficient interest to warrant participation in proceedings, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question. Justice Branson joined Mr Kemp, who asserted native title, to the Davis-Hurst proceedings as a respondent, notwithstanding that Mr Kemp did not wish himself to advance a claim for a determination of native title.
Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: cited
To prevent the making of the declaration sought by the Land Council, Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Native title exists under the Act as a community title capable of recognition by the common law. Individual non-proprietary rights can be recognised where they are derived from the community's laws and customs and are dependent on community title ( Mabo at [52] per Brennan J). Laws and customs in which rights or interests find their origins must be laws or customs having a normative content and deriving from a body of norms or normative system, that existed before sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [38] per Gleeson CJ, Gummow and Hayne JJ). If the normative system has not existed throughout that period, if it has not had a continuous existence and vitality, if the laws and customs cease to be acknowledged and observed by that society as a group, the rights and interests will have ceased to exist and cannot be revived or reconstituted ( Yorta Yorta at [47] [50]). It is not necessary to show that every member of a community or group has acknowledged and observed the relevant traditional laws and customs but the Act requires that a native title claimant group establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that group as a whole ( De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 at [58] ). As discussed in Hillig (No 2) at [60] [62], a sub-group that accepts that it is only part of a larger group of native title holders is not the group that holds the common or group rights within s 61 of the Act. Worimi and his family are such a sub-group.
Case: Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31
Outcome: cited
Justice Finn recognised in Kokatha People at [18] that '[i] t 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 '. His Honour adopted what had been considered in detail by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. Justice Lindgren there observed that '[p] roper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 ' of the Act (at [1171] citing Perry M and Lloyd S, Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439). At [1172], Lindgren J set out two well supported principles: that non-compliance with the authorisation requirement of s 61(1) is fatal to the success of an application and that 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.
Case: Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115
Outcome: cited
The Worimi Local Aboriginal Land Council ('the Land Council'), previously represented by an administrator, Mr Hillig, seeks a declaration that no native title exists over land at Port Stephens, being Lot 576 in Deposited Plan 48823 ('the Land'). By notice of motion filed on 23 August 2005, Mr Gary Dates, also known as Worimi, sought to become a party to the proceedings. Worimi has previously filed two claimant applications for a determination that native title exists over the Land. I struck out each application pursuant to s 84C of the Native Title Act 1993 (Cth) ('the Act') for failure to comply with s 61 of the Act ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770). Worimi had previously indicated that he intended to file a further claimant application. That has not occurred and there is no present suggestion of any intention on Worimi's part to do so. By an amended notice of motion filed on 30 March 2007, Worimi seeks to be joined as a respondent to this non-claimant application under s 84(5) of the Act. The application for joinder is opposed by the Land Council. 16 Worimi satisfies that test. As in Davis-Hurst at [27], Worimi is seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Worimi people and the Land. Worimi's interest is that of a person who claims that native title exists over the Land. That interest is not indirect, remote or lacking in substance. It is not advanced as an interest of an emotional kind. It is clearly directly affected by a declaration that there is no native title. It is not remote or insubstantial. The Land Council submits that it can be no more than a belief. However, Worimi asserts that native title exists, founded on evidence that was not tested. There was no evidence on this application for joinder to contradict Worimi's evidence or to demonstrate that it fails to satisfy the Byron test. The findings in Hillig (No 2) and Worimi do not extend to a determination that native title does not exist or to a rejection of Worimi's factual assertions. Those decisions covered the failure of Worimi to comply with the requirements of the Act in relation to claimant applications. It has not yet been determined whether Worimi's belief is or is not well-founded.
Case: Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31
Outcome: cited
In Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31 a non-claimant sought, by a non-claimant application, positively to assert the existence of native title. Justice Madgwick observed at [11] that the Act is structured so that any positive assertion that native title exists needs to comply with the requirements of ss 61, 61A and 62 and that the drafters of the Act evidently assumed that only claimant groups would assert native title. His Honour observed that there is no apparent policy reason why the information required of a claimant group should not also be required of a non-claimant application ' if such a vehicle might be used to seek to establish the existence of native title ' (at [11]). To allow otherwise would, in his Honour's view, ' tend to compromise the claimant application process envisaged by the Act ' and ' leave other potential parties and the Court with little of the information necessary to consider the justification for making any positive determination that some group or person holds native title '.
Case: Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544
Outcome: cited
It is not a matter of mere speculation as to how Worimi's claim will be affected: it will be extinguished. Regardless, Worimi relies on his claimed native title right to oppose or qualify the Land Council's claim of no native title ( Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 (' Kokatha ') at [50]). He has defined his claim and whether or not it is sufficient to answer the claim of the Land Council will be able to be determined. 18 The Land Council submits that the scheme of the Act makes it clear that a person who asserts native title must comply with the requirements of ss 61, 61A and 62 of the Act, whether native title is asserted as a claimant in proceedings for a determination of native title or as a respondent in proceedings seeking a declaration that no native title exists in the Land. The Land Council points to the scheme of Pt 3 of the Act which it says requires that, when a non-claimant application is made, a putative native title holder should make a claimant application within the notification period (ss 61, 62, 66 and 84(3)(a)). It submits that any person or group wishing to assert native title must do so as a claimant and meet the tests imposed by the Act. Accordingly, although Worimi did not make an application within the notification period, it submits the appropriate course is not to be joined to the non-claimant application but to file a claimant application. Of course, Worimi did this on two previous occasions and those applications were summarily dismissed. 19 The Land Council relies on the consideration of the potential claim group identified by Worimi in his second claimant application, which it says substantively mirrors the claim group described in his affidavit in support of joinder. It submits that the only available conclusion is that Worimi cannot identify a claim group capable of meeting the requirements of s 61 of the Act.
Case: Mabo v State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: cited
In Risk v National Native Title Tribunal [2000] FCA 1589 , O'Loughlin J considered the correct interpretation of "a native title claim group" in the context of an application for a determination of native title and the principle that native title is communally held ( Mabo v State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at [109] [10] per Deane and Gaudron JJ). A native title claim group is not established or recognised merely because a group of people call themselves a native title claim group ( Risk at [60]). In Risk , as here, the family that Worimi represents is, on his own evidence, only part of the group which, according to traditional laws and customs, could hold native title over the Land. Worimi accepts that the members of that group do not claim native title and concludes that they are unaware of the traditional laws and customs. 35 To prevent the making of the declaration sought by the Land Council, Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Native title exists under the Act as a community title capable of recognition by the common law. Individual non-proprietary rights can be recognised where they are derived from the community's laws and customs and are dependent on community title ( Mabo at [52] per Brennan J). Laws and customs in which rights or interests find their origins must be laws or customs having a normative content and deriving from a body of norms or normative system, that existed before sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [38] per Gleeson CJ, Gummow and Hayne JJ). If the normative system has not existed throughout that period, if it has not had a continuous existence and vitality, if the laws and customs cease to be acknowledged and observed by that society as a group, the rights and interests will have ceased to exist and cannot be revived or reconstituted ( Yorta Yorta at [47] [50]). It is not necessary to show that every member of a community or group has acknowledged and observed the relevant traditional laws and customs but the Act requires that a native title claimant group establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that group as a whole ( De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 at [58] ). As discussed in Hillig (No 2) at [60] [62], a sub-group that accepts that it is only part of a larger group of native title holders is not the group that holds the common or group rights within s 61 of the Act. Worimi and his family are such a sub-group.