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Davidson v Fesl

Davidson v Fesl

Case [2005] FCAFC 183

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FEDERAL COURT OF AUSTRALIA
Davidson v Fesl [2005] FCAFC 183
ABORIGINES – native title – application for native title determination – authorisation – whether application properly authorised at lodgement – application discontinued by leave – application for leave to appeal against grant of leave to discontinue – native title claim group – definition – difficulties and disputes about definition – connection to authorisation question – no substantial injustice arising out of discontinuance – benefits to be derived from filing of fresh native title determination application with properly defined native title claim group and adequate authorisation – application for leave to appeal against grant of leave to discontinue dismissed
Native Title Act 1993 (Cth)
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 394 cited
ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER v EVE DOREEN FESL AND STATE OF QUEENSLAND
QUD 56 OF 2005
FRENCH, FINN AND HELY JJ
30 AUGUST 2005
PERTH (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 56 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER
APPLICANTS

AND:

EVE DOREEN FESL
FIRST RESPONDENT

STATE OF QUEENSLAND
SECOND RESPONDENT

JINIBARA PEOPLE, TONY DALTON AND OTHERS
THIRD RESPONDENTS

JUDGES:

FRENCH, FINN AND HELY JJ

DATE OF ORDER:

DATE OF PUBLICATION OF REASONS:

23 AUGUST 2005

30 AUGUST 2005

WHERE MADE:

PERTH (HEARD IN BRISBANE)

THE COURT ORDERS THAT:
1.The application for leave to appeal against the judgment of Spender J given on 22 February 2005 is dismissed.
2.The parties have leave to make submissions within 14 days on the question of costs and in particular whether any costs order in favour of the respondents should be taxed as one set between all or some of them.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 56 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER
APPLICANTS

AND:

EVE DOREEN FESL
FIRST RESPONDENT

STATE OF QUEENSLAND
SECOND RESPONDENT

JINIBARA PEOPLE, TONY DALTON AND OTHERS
THIRD RESPONDENTS

JUDGES:

FRENCH, FINN AND HELY JJ

DATE OF ORDERS:

DATE OF PUBLICATION OF REASONS:

23 AUGUST 2005

30 AUGUST 2005

PLACE:

PERTH (HEARD IN BRISBANE)

REASONS FOR JUDGMENT ON APPLICATION FOR
LEAVE TO APPEAL

On 24 December 1999 Dr Eve Doreen Fesl filed in this Court a native title determination application in which she alone was named as applicant. That application was later amended, in August 2001. The native title claim group on whose behalf the amended application was said to be made was described in Schedule A to the application thus:
‘The Gubbi Gubbi biological descendants who are matrilineally descended from Maggie Crowe (nee Palmer) born circa 1840, died circa 1882, and James, born circa 1830, died…

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 Davidson v Fesl

Details

AGLC: Davidson v Fesl [2005] FCAFC 183
Case: [2005] FCAFC 183
Decision Date: 23 AUGUST 2005 30 AUGUST 2005

CaseChat Overview and Summary

Davidson, Fisher, and Fisher have applied for leave to appeal against the decision of the Federal Court, which granted leave for Dr Fesl to discontinue the application and denied the motion to replace Dr Fesl with another applicant. The primary legal issue in this case was whether the application was properly authorised by the native title claim group, as required by the Native Title Act. His Honour concluded that the application was not properly authorised, as Dr Fesl herself confirmed that it had not been authorised, and no other party argued otherwise. His Honour determined that the application was not a ‘claimant application’ and, therefore, the proceedings were likely to be found flawed from the outset. His Honour also considered the benefits of registration for the claimants and concluded that discontinuing the proceedings would not deprive them of the benefits already obtained.

His Honour was satisfied that it was in the interests of justice to grant leave to discontinue the proceedings and to refuse the relief sought in the motion filed by the Davidson interests. The Court was also presented with affidavit evidence both supporting and opposing the motion to replace Dr Fesl. The deponents of the affidavits in support of the motion were indigenous respondents to the application, while the deponents of the affidavits in opposition were members of the native title claimant group. One of the affidavits, filed in opposition, provided insight into the customary decision-making processes of the Gubbi Gubbi people and argued that the meeting held to authorise the replacement motion was in contravention of those processes.

The Court dismissed the application for leave to appeal against the judgment of Spender J, and the parties were granted leave to make submissions within 14 days on the question of costs, in particular whether any costs order in favour of the respondents should be taxed as one set between all or some of them. This case highlights the importance of proper authorisation by the native title claim group and the need for adherence to customary decision-making processes when considering applications related to native title determinations.

Orders

Orders of the court

1. The application for leave to appeal against the judgment of Spender J given on 22 February 2005 is dismissed.

2. The parties have leave to make submissions within 14 days on the question of costs and in particular whether any costs order in favour of the respondents should be taxed as one set between all or some of them.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH, FINN AND HELY JJ

Alexander Davidson, Cecil Fisher and Mischa Fisher now seek leave to appeal against his Honour’s decision. In substance they wish to have his Honour’s decision giving leave to discontinue the application set aside and the motion for the replacement of Dr Fesl as an applicant remitted for consideration by his Honour. The Reasons for Judgment on the Motion for Leave to Discontinue His Honour set out as the ‘primary reason’ for acceding to the application for leave to discontinue the fact that the application was never authorised as required by s 61(1) of the Act. He said that Dr Fesl herself said that that was the case. No other party, not even Mr Davidson and those associated with his motion, contended for the initial authorisation of the application. On the basis of its want of initial authorisation, his Honour considered that the proceeding was likely to be found to have been flawed from the outset. On the basis that the application was not properly authorised when it was lodged, his Honour concluded that it was not a ‘claimant application’ as defined in s 253 of the Act. In that section, ‘claimant application’ is defined to mean: ‘a native title determination application that a native title claim group has authorised to be made, and unless the contrary intention appears, includes such an application that has been amended.’Authorisation by the native title claim group was the essence of a ‘claimant application’. His Honour described ‘authorisation’ as ‘a threshold requirement to the operation of s 66B of the Act’ under which applications may be made to change the composition of the named applicants in a native title determination application. In considering the application for leave to discontinue the proceedings his Honour was conscious that it would deprive the claimants of the ‘benefits of registration’. A discontinuance however would not deprive them of the benefits already obtained and would not prevent a new claim being registered assuming it met the registration requirements of the Act. His Honour concluded that it was efficient and in the interests of justice to make orders that the applicant, Dr Fesl, be given leave to discontinue the proceedings and that the relief sought in the motion filed by the Davidson interests on 11 October 2004 be refused. His Honour referred to affidavit evidence which had been filed in support of the Davidson motion seeking the replacement of Dr Fesl. He observed that as at 19 November 2004 all of those deponents were indigenous respondents to the application with the exception of one who was a member of the claimant group. There were also affidavits filed in opposition to the motion, the deponents of which were all members of the native title claimant group. One of those affidavits by Dr Fesl’s brother, Nurdon Serico, deposed to the customary decision making processes of the Gubbi Gubbi people and argued that the 9 October 2004 meeting, purporting to authorise the replacement motion, was in contravention of those processes.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH, FINN AND HELY JJ

Full text does not contain this section.

Citations

AGLC Citation

Davidson v Fesl [2005] FCAFC 183

Most Recent Citation

Welsh v Digilin Pty Ltd [2008] FCA 78

Cases citing this decision · 7 of 7 shown

Webster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 702 Para 27

…2002) 214 CLR 422; Griffiths (2019) 93 ALJR 327; 364 ALR 208. For difficulties with identifying members of claim groups, see, eg, Davidson v Fesl [2005] FCAFC 183; Aplin on behalf of the Waanyi Peoples v Queensland [2010] FCA 625 at [226]–[267]; Violet Carr and Others on Behalf of the Wellington Valley Wiradjuri Pe…
Weribone on behalf of the Mandandanji People v State of Queensland
[2013] FCA 255 Para 1

…n Starkey v South Australia (2011) 193 FCR 450. The current dispute is of a different character. French, Finn and Hely JJ remarked in Davidson v Fesl [2005] FCAFC 183 at [25] the definition of the claim group is of great importance. In that case, there were serious disagreements concerning the identification of the…
Violet Carr and Others on Behalf of the Wellington Valley Wiradjuri People v Premier of New South Wales
[2013] FCA 200 Para 14

…In Davidson v Fesl [2005] FCAFC 183 at [25] it was noted that: As already noted the definition of the claim group is of great importance. The definition in the application is curiously constrained. While the identification of the claim group is so constrained and contentious it is difficult to see how the question…
Alcock v Commonwealth of Australia
[2012] FCA 870 Para 11

…nably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65]) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] — leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge’s reasons ( Ene…
Paul's Retail Pty Ltd v Lonsdale Australia Limited
[2012] FCA 724 Para 27

…nably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65]) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22]) — leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge’s reasons ( En…
SNF (Australia) Pty Ltd v CIBA Specialty Chemicals Water Treatments Limited
[2011] FCA 794 Para 19

…nably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65]) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22]) — leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge’s reasons ( En…
Welsh v Digilin Pty Ltd
[2008] FCA 78 Para 8

…sonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65]) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22]) -leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge’s reasons ( E…

View all 7 citing cases →

Cases cited in this decision · 3 of 3 shown

Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT)
[2008] ACTCA 9 Para 21

…plication before the Court is for leave to appeal from his Honour’s decision. The criteria upon which such leave is given were considered in Décor Corporation Pty Ltd v Advance Industries Inc (1991) 33 FCR 397 at 398-9. The primary criteria are: (i)whether in all the circumstances the decision the subject of the application for leave is attended wit…
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd
[2004] HCA 14

…sation – application for leave to appeal against grant of leave to discontinue dismissed Native Title Act 1993 (Cth) Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 394 cited ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER v EVE DOREEN FESL AND STATE OF QUEENSLAND QUD 56 OF 2005 FRENCH, FINN AND HELY JJ 30 AUG…
Décor Corporation Pty Ltd v Dart Industries Inc
[1991] FCA 844 Para 21

…peal from his Honour’s decision. The criteria upon which such leave is given were considered in Décor Corporation Pty Ltd v Advance Industries Inc (1991) 33 FCR 397 at 398-9. The primary criteria are: (i)whether in all the circumstances the decision the subject of the application for leave is attended with sufficien…

Legislation cited in this decision · 1

Native Title Act 1993 (Cth)
1 mention (from Para 8)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 56 OF 2005

BETWEEN:	ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER APPLICANTS
AND:	EVE DOREEN FESL FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT JINIBARA PEOPLE, TONY DALTON AND OTHERS THIRD RESPONDENTS
JUDGES:	FRENCH, FINN AND HELY JJ
DATE OF ORDER: DATE OF PUBLICATION OF REASONS:	23 AUGUST 2005 30 AUGUST 2005
WHERE MADE:	PERTH (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 56 OF 2005