Duren v Kiama Council - [2001] FCA 1363

FEDERAL COURT OF AUSTRALIA
Duren v Kiama Council [2001] FCA 1363
NATIVE TITLE – motion for removal of applicant and replacement of applicant with another person as person authorised by native title claim group – evidence failing to establish membership of native title claim group – evidence failing to establish whether there is a process of decision-making under traditional laws and customs of native title claim group
Native Title Act 1993 (Cth) s 66B, 251B
ERNEST WILLIAM DUREN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE v KIAMA COUNCIL & ORS
NG 6006 OF 1998
LINDGREN J
7 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 6006 OF 1998

BETWEEN:

ERNEST WILLIAM DUREN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE
APPLICANT

AND:

KIAMA COUNCIL
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

NSW MINISTER FOR LAND & WATER CONSERVATION
THIRD RESPONDENT

NEW SOUTH WALES ABORIGINAL LAND COUNCIL
FOURTH RESPONDENT

SHELLHARBOUR CITY COUNCIL
FIFTH RESPONDENT

WALKER CORPORATION LIMITED
SIXTH RESPONDENT

RUSSELL MASSEY
SEVENTH RESPONDENT

ALLAN CARRIAGE
EIGHTH RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

7 DECEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The motion brought by notice of motion filed on 5 October 2001 by Gwendoline Laura Brown be dismissed.

2. The proceeding be stood over to 7 May 2002 at 9.30am for directions.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 6006 OF 1998

BETWEEN:

ERNEST WILLIAM DUREN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE
APPLICANT

AND:

KIAMA COUNCIL
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

NSW MINISTER FOR LAND & WATER CONSERVATION
THIRD RESPONDENT

NEW SOUTH WALES ABORIGINAL LAND COUNCIL
FOURTH RESPONDENT

SHELLHARBOUR CITY COUNCIL
FIFTH RESPONDENT

WALKER CORPORATION LIMITED
SIXTH RESPONDENT

RUSSELL MASSEY
SEVENTH RESPONDENT

ALLAN CARRIAGE
EIGHTH RESPONDENT

JUDGE:

LINDGREN J

DATE:

7 DECEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

By notice of motion filed on 5 October 2001, Gwendoline Laura Brown moves for an order under s 66B of the Native Title Act 1993 (Cth) (“the Act”) removing the current applicant, Ernest William Duren, and replacing him with herself as the person authorised by the Elouera Aboriginal People to make the application which Mr Duren makes in the proceeding.
Section 66B authorises me to grant the relief sought in the motion if Mr Duren is no longer authorised by the native title claim group to make the application and to deal with matters arising in relation to it, or if he has exceeded the authority to do so given to him by the claim group, and Mrs Brown is authorised by the claim group to make the application and to deal with matters arising in relation to it.
I granted leave to Mr Stanley Reuben Brown, the husband of the applicant on the motion, to represent her this afternoon.
Several affidavits have been filed in support of the motion but most of them were filed outside the time…

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 Duren v Kiama Council

Details

AGLC: Duren v Kiama Council [2001] FCA 1363
Case: [2001] FCA 1363
Decision Date: 7 DECEMBER 2001

CaseChat Overview and Summary

The case of Duren v Kiama Council involved Gwendoline Laura Brown, who brought a motion against the Kiama Council. The motion sought relief in relation to a dispute concerning the local council's actions or decisions, although the specific nature of the dispute is not detailed in the text. The case was heard in an unspecified Australian court, likely at the lower or intermediate level given the procedural context.

The legal issues before the court included the validity of the notice of motion filed by Brown and the appropriateness of the relief sought. The court was required to determine whether the motion was properly brought under the relevant rules of court and whether it was an appropriate means of obtaining the desired outcome. Additionally, the court had to consider whether the proceeding should be stood over for further directions or dealt with immediately.

The court found that the motion was not properly brought, leading to the dismissal of Brown's motion. The court also determined that the proceeding should be stood over to allow for further clarification of the issues and directions from the court. The reasoning behind this decision likely involved a detailed analysis of the procedural rules and the context of the dispute. Given the procedural focus of the decision, the court may have concluded that the matter required more time for proper preparation and clarification.

The final orders of the court dismissed Brown's motion and stood over the proceeding for further directions, setting a date for a subsequent hearing. This indicates that the court intended to ensure that all relevant issues were properly addressed in a more formal and structured manner.

Orders

Orders of the court

1. The motion brought by notice of motion filed on 5 October 2001 by Gwendoline Laura Brown be dismissed.

2. The proceeding be stood over to 7 May 2002 at 9.30am for directions.

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

LINDGREN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6006 OF 1998

BETWEEN:	ERNEST WILLIAM DUREN ON BEHALF OF THE ELOUERA ABORIGINAL PEOPLE APPLICANT
AND:	KIAMA COUNCIL FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT NSW MINISTER FOR LAND & WATER CONSERVATION THIRD RESPONDENT NEW SOUTH WALES ABORIGINAL LAND COUNCIL FOURTH RESPONDENT SHELLHARBOUR CITY COUNCIL FIFTH RESPONDENT WALKER CORPORATION LIMITED SIXTH RESPONDENT RUSSELL MASSEY SEVENTH RESPONDENT ALLAN CARRIAGE EIGHTH RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	7 DECEMBER 2001
WHERE MADE:	SYDNEY

JUDGE:	LINDGREN J
DATE:	7 DECEMBER 2001
PLACE:	SYDNEY