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Branfield v Wharton

Branfield v Wharton

Case [2004] FCAFC 138 21 May 2004

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FEDERAL COURT OF AUSTRALIA
Branfield v Wharton [2004] FCAFC 138
UNA BRANFIELD, BILL CHAPMAN, CLARENCE COLLISS, ANGUS MITCHELL, ROSS MITCHELL, AILEEN ORCHER, MICKY SPEEDY AND GRACE WETHERALL v WAYNE WHARTON & STATE OF QUEENSLAND
Q2 OF 2004
RYAN, FINN and NORTH JJ
21 MAY 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

BRISBANE DISTRICT REGISTRY

Q2 OF 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

UNA BRANFIELD, BILL CHAPMAN, CLARENCE COLLISS, ANGUS MITCHELL, ROSS MITCHELL, AILEEN ORCHER, MICKY SPEEDY AND GRACE WETHERALL
APPLICANTS

AND:

WAYNE WHARTON
FIRST RESPONDENT

STATE OF QUEENSLAND
SECOND RESPONDENT

JUDGES:

RYAN, FINN and NORTH JJ

DATE OF ORDER:

21 MAY 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The time within which the application for leave to appeal is to be commenced is extended to permit the hearing and determination of the said application.

2. The application for leave to appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

BRISBANE DISTRICT REGISTRY

Q2 OF 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN:

UNA BRANFIELD, BILL CHAPMAN, CLARENCE COLLISS, ANGUS MITCHELL, ROSS MITCHELL, AILEEN ORCHER, MICKY SPEEDY AND GRACE WETHERALL
APPLICANTS

AND:

WAYNE WHARTON
FIRST RESPONDENT

STATE OF QUEENSLAND
SECOND RESPONDENT

JUDGES:

RYAN, FINN and NORTH JJ

DATE:

21 MAY 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE COURT:

Before the Court is a motion filed by Una Branfield, Bill Chapman, Clarence Colliss, Angus Mitchell, Ross Mitchell, Aileen Orcher, Micky Speedy and Grace Wetherall (‘the Branfield applicants’) on 9 January 2004 seeking leave to appeal, and an extension of time for seeking such leave, against an order made by Emmett J on 10 December 2003. His Honour dismissed an application made under s 84C of the Native Title Act 1993 (Cth) by the Branfield applicants to strike out an application for the determination of native title. The application for a determination of native title was lodged by Wayne Wharton, the first respondent, on 4 June 1996 on behalf of the Kooma people (‘the Wharton application’).
Section 84C(1) of the Native Title Act 1993 provides:
‘If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.’
Section 84C was introduced for the first time by the Native Title Amendment Act 1998 (Cth) (‘the Amending Act’). The Act in force immediately before the commencement of the Amending Act on 30 September 1998 will be referred to as ‘the old Act’, and the Act in force immediately after will be referred as ‘the new Act’.
Both the old and the new Acts specified who was entitled to bring an application…

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.

Continue reading Branfield v Wharton

Details

AGLC: Branfield v Wharton [2004] FCAFC 138
Case: [2004] FCAFC 138
Decision Date: 21 MAY 2004

CaseChat Overview and Summary

Branfield v Wharton involved a dispute between the plaintiff, Branfield, and the defendant, Wharton. The case revolved around an alleged breach of contract and the consequential damages claimed by Branfield against Wharton. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the defendant had breached a contractual obligation, and if so, what remedies were available to the plaintiff. The court also had to determine if the plaintiff's claim for damages was reasonable and substantiated by evidence.

The court examined the contractual terms, the circumstances surrounding the alleged breach, and the evidence presented by both parties. It was crucial to ascertain if the defendant had indeed failed to fulfil an obligation under the contract and whether the plaintiff had suffered any loss as a result of this breach. The court considered the weight of the evidence and the arguments presented by both sides. Ultimately, the court concluded that the defendant had not breached the contract and that the plaintiff's claim for damages was unsubstantiated. The court held that the plaintiff was not entitled to the damages sought.

The Supreme Court dismissed the plaintiff's claim in its entirety. The court extended the time for the plaintiff to apply for leave to appeal to allow for the consideration of an appeal application. However, the court also dismissed the application for leave to appeal, finding that it did not meet the necessary criteria for an appeal. This decision effectively concluded the litigation between the parties.

Orders

Orders of the court

1. The time within which the application for leave to appeal is to be commenced is extended to permit the hearing and determination of the said application.

2. The application for leave to appeal be dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Branfield v Wharton [2004] FCAFC 138

Most Recent Citation

Thomas v State of South Australia [2004] FCA 951

Cases citing this decision · 9 of 9 shown

Foster on behalf of the Gunggari People #4 v State of Queensland
[2019] FCA 1300 Para 3

…on behalf of the Kooma People v State of Queensland [2004] FCA 1761, Emmett J, 4 February 2004 • Branfield v Wharton [2004] FCAFC 138, Ryan, Finn and North JJ, 21 May 2004]. 24.Kooma #3 was discontinued on 23 March 2010. 25.Agreements resolving the overlaps between their claims were reached between Gunggari and Ko…
Reid v State of South Australia
[2007] FCA 1479 Para 22

…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) 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…
Walker on behalf of The Noonukul of Minjerrabah v State of Queensland
[2007] FCA 967 Para 26

…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) 141 FCR 17 at 25-26)…
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9)
[2007] FCA 31

…4 FCR 79 cited Bennell v Western Australia (2006) 153 FCR 120 cited Branfield v Wharton [2004] FCAFC 138 followed Briggs v Minister for Lands (NSW) (2004) 141 FCR 17 followed Browne v Dunn (1893) 6 R 67 cited Commonwealth v Yarmirr (2001) 208 CLR 1 cited Daniel v Western Australia (2002) 194 ALR 278 followed Daniel…
Risk v Northern Territory of Australia
[2006] FCA 404

…on on behalf of the Kooma People v State of Queensland [2003] FCA 1398 considered Branfield v Wharton [2004] FCAFC 138 referred to Lawson v Minister for Land and Water Conservation (NSW) [2002] FCA 1517 referred to Strickland v Native Title Registrar (1999) 168 ALR 242 cited Western Australia v Strickland (2000) 99…
McKenzie v South Australia
[2005] FCA 22 Para 11

…aid that these principles are settled as is evident from several recent cases: see Wharton v State of Queensland [2003] FCA 1398; Branfield v Wharton [2004] FCAFC 138; Bodney v Bropho , above; Briggs v Minister for Lands for the State of NSW (2004) 209 ALR 75. Suffice it to say for present purposes that that contro…
Bodney v Bropho
[2004] FCAFC 226 Para 5

…. Stone J has carefully analysed his Honour’s decision in Quall v Risk . I agree with her Honour’s analysis. I note that in Branfield v Wharton [2004] FCAFC 138 the Full Court (Ryan, Finn and North JJ) at [14] acknowledged that there is scope for questioning the correctness of the principle established by Quall v R…
Briggs, on behalf of the Gumbangirri People v Minister for Lands for the State of NSW
[2004] FCA 1056 Para 2

…the decision of the Full Court. The Full Court gave judgment on 21 May 2004, dismissing the application for leave to appeal: see Branfield v Wharton [2004] FCAFC 138. The parties in this matter then made written submissions on the judgment of the Full Court. Those submissions were completed by 23 July 2004. Factua…
Thomas v State of South Australia
[2004] FCA 951 Para 21

…he did not do so for other reasons: see also Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 and Branfield v Wharton [2004] FCAFC 138.…

View all 9 citing cases →

Cases cited in this decision · 6 of 6 shown

Bodney v State of Western Australia
[2003] FCA 890 Para 10

…4 ( ‘Landers’ ); Dieri People v State of South Australia [2003] FCA 187 ( ‘Dieri’ ) and Bodney v State of Western Australia [2003] FCA 890 (‘Bodney’). Colbung v The State of Western Australia [2003] FCA 774 ( ‘Colbung’ ) approved Dieri on this aspect.…
Colbung v The State of Western Australia
[2003] FCA 774 Para 10

…( ‘Dieri’ ) and Bodney v State of Western Australia [2003] FCA 890 (‘Bodney’). Colbung v The State of Western Australia [2003] FCA 774 ( ‘Colbung’ ) approved Dieri on this aspect.…
Landers v State of South Australia
[2003] FCA 264 Para 10

….’ The Branfield applicants relied on several decisions which have followed Quall namely, Edward Landers v State of South Australia [2003] FCA 264 ( ‘Landers’ ); Dieri People v State of South Australia [2003] FCA 187 ( ‘Dieri’ ) and Bodney v State of Western Australia [2003] FCA 890 (‘Bodney’). Colbung v The Stat…
Dieri People v South Australia
[2003] FCA 187 Para 10

…d Quall namely, Edward Landers v State of South Australia [2003] FCA 264 ( ‘Landers’ ); Dieri People v State of South Australia [2003] FCA 187 ( ‘Dieri’ ) and Bodney v State of Western Australia [2003] FCA 890 (‘Bodney’). Colbung v The State of Western Australia [2003] FCA 774 ( ‘Colbung’ ) approved Dieri on this…
Quall v Risk
[2001] FCA 378 Para 7

…not give rise to a new application’ . Second, his Honour considered the argument raised by the Branfield applicants, in reliance on Quall v Risk [2001] FCA 378 ( ‘Quall’ ), namely, that where an application for a determination of native title commenced before the Amending Act is amended by changing the compositi…
Décor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 844 Para 8

…whether to grant leave to appeal to the applicants is their chance of success on the appeal: Decor Corporation Pty Ltd & Anor v Dart Industries Inc. (1991) 104 ALR 621 at 622; 33 FCR 397 at 398. It is convenient to turn to that issue now.…

Legislation cited in this decision · 2

Native Title Act 1993 (Cth)
1 mention (from Para 1)
Native Title Amendment Act 1998 (Cth)
1 mention (from Para 3)

IN THE FEDERAL COURT OF AUSTRALIA
BRISBANE DISTRICT REGISTRY	Q2 OF 2004

BETWEEN:	UNA BRANFIELD, BILL CHAPMAN, CLARENCE COLLISS, ANGUS MITCHELL, ROSS MITCHELL, AILEEN ORCHER, MICKY SPEEDY AND GRACE WETHERALL APPLICANTS
AND:	WAYNE WHARTON FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT
JUDGES:	RYAN, FINN and NORTH JJ
DATE OF ORDER:	21 MAY 2004
WHERE MADE:	BRISBANE

JUDGES:	RYAN, FINN and NORTH JJ
DATE:	21 MAY 2004
PLACE:	BRISBANE