NATIVE TITLE – appeal from decision of single judge striking out native title claim – principles applicable on strike-out application under s 84C of the Native Title Act 1993 (Cth) – amendment to s 61 of the Native Title Act 1993 (Cth) – whether application amended after introduction of Native Title Amendment Act 1998 (Cth) required to satisfy requirements of s 61 as amended – application of transitional provisions
CHRISTOPHER ROBERT BODNEY V ROBERT CHARLES BROPHO & ORS W 6007 of 2003
CHRISTOPHER ROBERT BODNEY V ROBERT CHARLES BROPHO & ORS W 6008 of 2003
CORRIE CHRISTOPHER ROBERT BODNEY ‘SNR’ V ROBERT CHARLES BROPHO & ORS W 6009 of 2003
CORRIE CHRISTOPHER ROBERT BODNEY ‘SNR’ V ROBERT CHARLES BROPHO & ORS W 6010 of 2003
CORRIE CHRISTOPHER ROBERT BODNEY ‘SNR’ V ROBERT CHARLES BROPHO & ORS W 6011 of 2003
SPENDER, BRANSON AND STONE JJ 24 AUGUST 2004 SYDNEY (HEARD IN PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 6007 OF 2003 W 6008 OF 2003 W 6009 OF 2003 W 6010 OF 2003 W 6011 OF 2003
ON…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bodney v Bropho [2004] FCAFC 226
Case
[2004] FCAFC 226
Decision Date
CaseChat Overview and Summary
In the case of Bodney v Bropho, the dispute involved multiple applications for native title determinations filed by Mr. Bodney and others. The matter was heard in the Federal Court of Australia, with a focus on whether the applications complied with statutory requirements for native title claims. The central legal issues revolved around the interpretation and application of sections 61 and 84C of the relevant legislation. Specifically, the court needed to determine whether the applications adequately identified the people who hold native title with the applicant and whether the court could defer the decision on a strike-out application.
The court, in its reasoning, addressed the statutory requirement for the applications to specify the individuals who hold native title with the applicant. The primary judge found that the applications did not sufficiently describe the 'Ballaruk People - Bodney Family Group,' thereby failing to meet the criteria set out in section 61 of the legislation. Additionally, the court considered the authority to defer the decision on a strike-out application under section 84C. The Full Federal Court, in Williams v Grant, had previously held that it was permissible for the court to defer the determination of a strike-out application if appropriate. The court agreed with this interpretation, concluding that it was within the primary judge's discretion to defer the decision on the strike-out applications.
The outcome of the case was that the appeal was allowed, and the orders of the primary judge were set aside. The matter was remitted to the primary judge for further consideration in light of the court's findings on the interpretation of the statutory requirements and the authority to defer decisions on strike-out applications.
Orders
Orders of the court
1. Leave to appeal be granted.
2. Appeal be allowed.
3. The orders of the primary judge be set aside.
4. The motions be remitted to the primary judge for further consideration.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
SPENDER, BRANSON AND STONE JJ
It will be noted that s 84C (2) requires the Court to ‘consider’ the application for a strike-out before taking any further step in the proceedings. Before the primary judge, counsel for the State of Western Australia submitted that this did not preclude the Court, having considered the merits of the application, deferring its determination in an appropriate case. It was not necessary for his Honour to decide the point as he was of the view that all the Bodney applications had failed to comply with s 61 and that there was ‘no good purpose’ in allowing the applications to remain on foot. The point was, however, the subject of recent consideration by the Full Federal Court in Williams v Grant at [56]-[59], where Lander J (with whose reasons North J and Dowsett J separately agreed) discussed s 84C in some detail and concluded that the Court had power to defer determining a strikeout application in an appropriate case. I respectfully agree with Lander J’s reasons and conclusion on this point. In my view it was open to the primary judge to defer determination of the strike-out applications if he had decided that this was the appropriate course.DECISION OF THE PRIMARY JUDGE All five Bodney applications were made before the commencement of the Amending Act. Despite this, the primary judge held that only three were to be considered under the old Act; the other two, having been amended after the commencement of the new Act, had to meet the requirement of s 61 of the new Act. There appears to have been no discussion of this issue before the primary judge; indeed his Honour noted that the parties accepted the qualification. His Honour observed, however, that his view was consistent with the views of O’Loughlin J in Quall v Risk [2001] FCA 378 (‘Quall’) at [65], followed by Mansfield J in Dieri People v State of South Australia (2003) 127 FCR 364 at 369, at [18]. The three Bodney applications that had never been amended were WAG 138 of 1996 (‘Wanneroo Road application’), WAG 139 of 1998 (‘Burswood Island application’) and WAG 140 of 1998 (‘Swanbourne application’). In all of these applications Mr Bodney was named as the sole applicant. However, each application stated that the application was made on behalf of the applicant and others. Those others were identified as ‘Ballaruk People - Bodney Family Group’. The primary judge observed that this description ‘does not provide any meaningful description or identification of the people who fall within the group.’ For this reason his Honour held that the applications did not comply with the requirement of s 61(3) of the old Act, that the application identify the people who are said to hold native title with the applicant, and for this reason they should be struck out. The other two applications, WAG 137 of 1998 (‘Hartfield Park application’) and WAG 149 of 1998 (‘Main Application’) had both been amended after the commencement of s 84C on 30 September 1998. His Honour held that, as a consequence, they were required to comply with s 61 of the new Act; see [48] above.