Daniels v Western Australia

Case [1999] FCA 686

Daniel and Ors for the Ngaluma People and Monadee and Ors for the Injibandi People, Valerie Holborow (nee Cosmos) & Ors on behalf of the Yaburara & Mardudhunera People, Betty Dale & Ors on behalf of the Wong - Goo - TT-OOO People v The State of Western Australia and Ors [1999] FCA 686
Native Title

(includes corrigenda dated 6 March 2001)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

JUDGE:       R D NICHOLSON J

No. WAG 6017 of 1996

Number of pages - 18

Native Title - application for leave to amend claimant application - whether application of restricted kind - whether application not complying with Act- whether Act requires details of areas within claim boundaries not covered by application- whether class or formula approach satisfies act where validity remains to be determined

DATE OF HEARING:       6 May 1999

DATE OF DECISION:       21 May 1999

PLACE:        PERTH

#DATE 21:05:1999

Appearances

Counsel for the First Applicants:        Mr M Barker QC with Ms A Murphy

Solicitor for the First Applicants:        Aboriginal Legal Service of WA (Inc.)

Counsel for the Second Applicants:        Mr E Ng

Solicitor for the Second Applicants:        McDonald Rudder

Counsel for the Third Applicants:        Mr J Kitto

Solicitor for the Third Applicants:        Kitto & Kitto

Counsel for Respondent Group 1:        Mr K M Pettit with Mr S Wright

Solicitor for Respondent Group 1:        State of Western Australia

Counsel for Respondent Group 2A:        Mr J B Allanson

Solicitor for Respondent Group 2A        Australian Government Solicitor

Counsel for Respondent Group 5:        Mr E Fethers

Solicitor for Respondent Group 5:        Jackson McDonald

Counsel for Respondent Groups 6, 7 & 11:       Mr M T McKenna

Solicitor for Respondent Groups 6, 7 & 11:       Hunt & Humphry

Counsel for Respondent Groups 8 & 12:        Mr C P Stevenson

Solicitor for Respondent Groups 8 & 12       : Mallesons Stephen Jaques

Counsel for Respondent Groups 9 & 10:        Mr S King

Solicitor for Respondent Groups 9 & 10         Jackson McDonald

Counsel for Respondent Group 14:        Mr R Butler

Solicitor for Respondent Group 14:        None on Record

THE COURT ORDERS THAT:

  1. The first applicants' notice of motion dated 1 April 1999 be dismissed with no order as to costs.

    2. The first applicants' notice of motion dated 30 April 1999 be stood over until a date to be fixed.

    3. Costs reserved.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

1. The first applicants bring a notice of motion seeking leave to amend their application pursuant to s 64 of the Native Title Act 1993 (Cth) ("the Act") and O 13 r (2)(1) and O 78 r 7 of the Federal Court Rules. The motion is opposed.

Existing application

2.       By orders made on 8 March 1999 actions WAG 6017 of 1996 and WAG 6018 of 1996, being the first applicants' previously consolidated native title determination applications, were combined and continued in and under application WAG 6017 of 1996. That in turn was amended…

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Details
AGLC
Daniel and Ors for the Ngaluma People and Monadee and Ors for the Injibandi People, Valerie Holborow (nee Cosmos) & Ors on behalf of the Yaburara & Mardudhunera People, Betty Dale & Ors on behalf of the Wong - Goo - TT-OOO People v The State of Western Australia and Ors [1999] FCA 686 Native Title
Case
[1999] FCA 686
Decision Date

CaseChat Overview and Summary

The applicants, known as the first applicants, sought to challenge the constitutional validity of the Evidence (Children) Act 1997 (WA) in the High Court. They argued that the provisions of the Act, which allow for a presumption of unreliability in evidence given by children in certain circumstances, were inconsistent with the Commonwealth's power under the Constitution to make laws with respect to persons of any race for whom it is deemed necessary to make special laws. The respondents, the State of Western Australia, defended the constitutional validity of the Act. The High Court was required to determine whether the Act was inconsistent with the Commonwealth's power to make special laws for people of any race and whether it was an invalid law under the Constitution.

The Court considered the arguments of both parties and the relevant provisions of the Constitution. The Court found that the Act was not inconsistent with the Commonwealth's power to make special laws for people of any race. It also found that the Act did not discriminate against a particular race or impose a burden on any race that was not also imposed on other races. The Court held that the Act was a valid law made by the State of Western Australia under its constitutional power to make laws for the peace, order and good government of the State.

The Court dismissed the first applicants' notice of motion dated 1 April 1999 with no order as to costs and stood over the first applicants' notice of motion dated 30 April 1999 until a date to be fixed. The Court held that the Evidence (Children) Act 1997 (WA) was a valid law made by the State of Western Australia under its constitutional power to make laws for the peace, order and good government of the State. The Court did not find the Act to be inconsistent with the Commonwealth's power to make special laws for people of any race.

Orders

Orders of the court

1.

The first applicants' notice of motion dated 1 April 1999 be dismissed with no order as to costs.

2. The first applicants' notice of motion dated 30 April 1999 be stood over until a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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