Daniel v State of Western Australia [2002] FCA 1147
NATIVE TITLE – application to replace applicants in claimant application – whether certain applicants no longer authorised by native title claimant groups – failure to execute future act agreement with State notwithstanding resolutions of native title claim group – authorisation of proposed replacement applicants – whether decision-making process according to traditional law and custom – whether other decision-making process – discretion to replace applicant.
DAVID DANIEL AND OTHERS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE AND OTHERS FOR THE YINDJIBARNDI PEOPLE v THE STATE OF WESTERN AUSTRALIA AND OTHERS WAG 6017 OF 1996 Part WAG 127 of 1997 and Part WAG 6256 of 1998
FRENCH J 13 SEPTEMBER 2002 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 6017 OF 1996 And part of WAG 127 OF 1997 And Part of WAG 6256 OF 1998
BETWEEN:
DAVID DANIEL AND OTHERS FOR THE NGARLUMA PEOPLE AND BRUCE MONADEE AND OTHERS FOR THE YINDJIBARNDI PEOPLE First Applicants
And
VALERIE HOLBOROW (NEE COSMOS) AND OTHERS ON BEHALF OF THE YABURARA AND MARDUDHUNERA PEOPLE
Second Applicants
And
BETTY DALE AND OTHERS ON BEHALF OF THE WONG-GOO-TT-OO PEOPLE
Third Applicants
AND:
THE STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT
JUDGE:
FRENCH J
DATE OF ORDER:
13 SEPTEMBER 2002
WHERE MADE:
PERTH
IN WAG 6017 OF 1996 THE COURT ORDERS THAT:
1.David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrolf, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people, (“the Replacement Applicants”) do jointly replace all the current Applicants, (the current Applicants being all the aforementioned Replacement Applicants plus James Solomon, Tim Kerr and David Walker).
2.The Application be amended by the removal of the names of the following Applicants in the title to the action and Schedule R:
James Solomon, Tim Kerr and David Walker.
3.A copy of this order be served on the Respondents.
5.Filing and service of the Amended Application be dispensed with.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6017 of 1996 And part of WAG 127 of 1997 And part of
WAG 6256 of 1998
B E T W E E N: DAVID DANIEL AND OTHERS FOR THE NGARLUMA
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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AGLC
Daniel v Western Australia [2002] FCA 1147
Case
[2002] FCA 1147
Decision Date
CaseChat Overview and Summary
In the matter of Daniel v Western Australia, the parties involved were representatives of the Ngarluma and Yindjibarndi people, who brought an application concerning native title rights. The application was initially filed by a broader group, which included additional applicants who later sought to withdraw from the proceedings. The High Court of Australia was tasked with determining whether the withdrawal of certain applicants would be permissible and how the proceedings should proceed with the remaining applicants.
The legal issues that the Court needed to resolve included whether the withdrawal of James Solomon, Tim Kerr, and David Walker from the application was permissible under the relevant legal framework and what steps should be taken to amend the application to reflect this change. The Court also needed to decide how to manage the procedural aspects of the case, including the service of the amended application and the scheduling of future hearings.
The Court concluded that the withdrawal of the named applicants was appropriate, as it did not prejudice the interests of the remaining applicants. The Court allowed the withdrawal and ordered that the application be amended to reflect the current list of applicants. The Court also directed that the amended application be served on the respondents and that the motion be adjourned for a further hearing, with the conduct of the hearing to be subject to directions from a forthcoming directions hearing.
The final orders included the replacement of the applicants, the removal of the withdrawing applicants' names from the application, the service of the amended application, and the adjournment of the motion for a future hearing. The Court also noted that liberty to apply for further orders remained available.
Orders
Orders of the court
1. David Daniel, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrolf, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people, (“the Replacement Applicants”) do jointly replace all the current Applicants, (the current Applicants being all the aforementioned Replacement Applicants plus James Solomon, Tim Kerr and David Walker).
2. The Application be amended by the removal of the names of the following Applicants in the title to the action and Schedule R:
James Solomon, Tim Kerr and David Walker.
3. A copy of this order be served on the Respondents.
5. Filing and service of the Amended Application be dispensed with.
1. The amended motion be adjourned for further hearing at a date to be fixed.
2. The future conduct of the hearing of the motion be subject to directions to be made at a directions hearing on Wednesday, 18 September 2002 at 9.30am.