Dale v Moses

Case [2007] FCAFC 82

FEDERAL COURT OF AUSTRALIA

Dale v Moses [2007] FCAFC 82

NATIVE TITLE – appeal from native title determination of single judge - where primary judge dismissed appellants' claim to native title in the determination area but found another native title claim group, the Ngarluma people and Yindjibarndi people, held non-exclusive native title – where appellants' claim dismissed on basis that they were not a group with continuing connection and were not differentiated from Ngarluma people and Yindjibarndi people

NATIVE TITLE – transmission of native title rights and interests – where appellants' case at trial regarding area known as "the Burrup" based on  alleged transmission of native title rights and interests from two Aboriginal persons said to be sole surviving members of group which originally inhabited the Burrup – where primary judge found no transmission in fact and also that appellants had not maintained connection after alleged transmission - whether Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 214 CLR 422 precluded inter-societal transfer of native title rights and interests – whether judicial notice could be taken of existence of traditional law or custom by which transmission could occur

Members of the Yorta Yorta Aboriginal Community v Victoria (2003) 214 CLR 422, discussed

BETTY DALE AND OTHERS (ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE) v DAISY MOSES AND OTHERS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE AND OTHERS (ON BEHALF OF THE YINDJIBARNDI PEOPLE) AND OTHERS
WAD 120 OF 2005

MOORE, NORTH & MANSFIELD JJ
7 JUNE 2007

SYDNEY (VIA VIDEO LINK TO PERTH)


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

WAD 120 OF 2005
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BETTY DALE AND OTHERS (ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE)
Appellants

AND:

DAISY MOSES AND OTHERS (ON BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE AND OTHERS (ON BEHALF OF THE YINDJIBARNDI PEOPLE)
First Respondents

VALERIE HOLBOROW (NEE COSMOS) AND OTHERS (ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE)
Second Respondents

THE STATE OF WESTERN AUSTRALIA AND OTHERS
Third Respondent

COMMONWEALTH OF AUSTRALIA AND OTHERS
Fourth Respondents

TELSTRA CORPORATION LIMITED
Fifth respondents

SHIRE OF ROEBOURNE
Sixth Respondents

P & D COOK AND OTHERS
Seventh Respondents

BHP MINERALS PTY LTD AND OTHERS
Eighth Respondents

CAPE LAMBERT IRON ASSOCIATES AND OTHERS
Ninth Respondents

DAMPIER SALT LTD
Tenth Respondents

HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD
Eleventh Respondents

NORTH WEST SHELF JOINT VENTURES & WOODSIDE OFFSHORE PETROLEUM
Twelfth Respondents

MINERALOGY PTY LTD
Thirteenth Respondent

BORAL CONTRACTING PTY LTD AND OTHERS
Fourteenth Respondents

ANVIL MINING NL AND OTHERS
Fifteenth Respondents

RON BRAND AND OTHERS
Sixteenth Respondents

MG CREASY
Seventeenth Respondent

RAYMOND JOHN THOMAS BUTLER VT & PA ROBERTS
Eighteenth Respondents

G H ALEXANDER AND OTHERS
Nineteenth Respondents

COSSACK PEARLS PTY LTD AND OTHERS
Twentieth Respondents

YATHALLA ABORIGINAL CORPORATION
Twenty-first Respondent

MINGULLATHARNDO ASSOCIATION INC
Twenty-second Respondent

HORACE PARKER & OTHERS (ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES)
Twenty-third Respondents

TEDDY ROBERTS AND OTHERS
Twenty-fourth Respondents

GEOFFREY…

Continue reading Dale v Moses

Sign in free to access the full text

Details
AGLC
Dale v Moses [2007] FCAFC 82
Case
[2007] FCAFC 82
Decision Date

CaseChat Overview and Summary

The case of Dale v Moses involved the appellants contesting the decision of the primary judge regarding the recognition of native title rights over certain land. The matter was heard by the Full Court of the Federal Court of Australia, which was required to review the primary judge's findings and the evidence presented. The respondents argued that the primary judge did not adequately consider specific evidence concerning the appellants' connection to the Burrup and the transmission of rights, while the appellants claimed that their Honour had failed to properly assess the evidence.

The court examined several issues, including the primary judge's assessment of the credibility of Tim Douglas' evidence, which was considered to be lacking in objective truth. The Full Court concluded that the primary judge had indeed considered the evidence and made findings accordingly, and that the primary judge's assessment of witness credibility, including the demeanour of witnesses, was an advantage he had as the trial judge. The Full Court noted that it was bound to rehear the matter but was limited by the necessity of the record of the trial, including the disadvantages of not being able to observe witnesses firsthand and other factors not fully captured in the transcript.

The Full Court dismissed the appeal and made no order as to costs. The reasoning was that the primary judge had carefully considered the evidence and made appropriate findings, and the Full Court was bound to respect the primary judge's assessment of witness credibility and the overall evidence presented. The limitations of the appellate process, including the inability to observe witnesses firsthand, further supported the primary judge's decision.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs.

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

These respondents also contested the appellants' submission that his Honour had failed to give proper consideration to evidence concerning the alleged connection with the Burrup and transmission of rights. His Honour had carefully considered the evidence in relation to the Burrup and made findings on it at [29] to [35] and Appendix H. His Honour also had certain benefits which this Court did not have in relation to findings of fact, especially where there was controversy between witness such as Mr O'Connor, Professor Maddock and Mr Robinson.Consideration Although the preceding summary of the submissions is by reference to the three key issues in the appeal, it is convenient in dealing with the appeal to consider the grounds individually. We consider first the challenge to his Honour's conclusions at [313] about the lack of objective truth in Tim Douglas' evidence, which was the second ground of appeal. What his Honour meant by the observations was almost certainly that while Mr Douglas believed that what he said in his evidence was true, it did not reflect the facts as his Honour saw them having regard to all of the evidence. While in native title proceedings whether a person believes particular matters may be a relevant fact, in the present case, as it related to Mr Douglas' evidence, the relevant facts were, in the main, not whether Mr Douglas believed things but whether they were true objectively. What his Honour was indicating at [313] was that he was not prepared to accept Mr Douglas' evidence as proof of the existence of facts which required objective proof. It was no different to saying, as trial judges often do, that while they accept a witness genuinely believed what he or she said had occurred was what had in fact occurred that their belief was misplaced. The account given by such a witness reflects that witness's conviction about what happened but not what in fact happened. It is true that his Honour did not explain in detail why he reached this conclusion nor did he set out the other evidence he accepted which pointed to that adverse conclusion. While it is something his Honour might have done (see, for example, Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [86] per Kirby and Heydon JJ) in a judgment of over 400 pages dealing with a multitude of issues, some economy in expression and reasoning was unsurprising. In any event, the conclusion expressed by his Honour reflected the singular advantage he had of seeing Mr Douglas and other witnesses give evidence as well as hearing all the evidence. While this Full Court is bound to rehear the matter (though having regard to the issues presented for consideration by the notices of appeal) there are limitations on what an intermediate appellate court might do in such circumstances. They were recently restated by the High Court in CSR Ltd v Della Maddalena (2006) 224 ALR 1. As Kirby J noted at [17]:The "limitations" introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts of trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that the primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions for from that evidence, viewed as a whole.