Gardiner v Attorney-General (No 3) - [2020] VSC 516

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02090

MARGARET GARDINER, VINCENT PETERS, ANNETTE XIBERRAS and ELIZABETH THORPE	Plaintiffs
v
ATTORNEY-GENERAL OF THE STATE OF VICTORIA	First Defendant
and
TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION)	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2020
DATE OF JUDGMENT:	18 August 2020
CASE MAY BE CITED AS:	Gardiner v Attorney-General (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 516

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PRACTICE AND PROCEDURE – Application to strike out or stay grounds in further amended originating motion as an abuse of process – Plaintiffs seek to set aside decision of first defendant to enter into recognition and settlement agreement with second defendant, under Traditional Owner Settlement Act 2010 (Vic) – Related Federal Court proceeding concerning registration of indigenous land use agreement under the Native Title Act 1993 (Cth) – Interaction between Traditional Owner Settlement Act 2010 (Vic) and Native Title Act 1993 (Cth) – Whether issues in Federal Court proceeding are the same as or overlap with the issues in this proceeding – Significant overlap – Proceeding stayed until determination of Federal Court proceeding – Traditional Owner Settlement Act 2010 (Vic), ss 3, 4; Native Title Act 1993 (Cth), ss 24CK, 24EA, 199C, 203BE(5), 251A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Gunst QC and Mr AF Solomon-Bridge	Holding Redlich
For the First Defendant	Mr P Willis SC and Ms EA Bennett	Matthew Hocking, Acting Victorian Government Solicitor
For the Second Defendant	Mr MLL Albert	First Nations Legal and Research Services

HER HONOUR:

In this proceeding, the plaintiffs seek judicial review of a decision of the Attorney-General for the State of Victoria, under s 4 of the Traditional Owner Settlement Act 2010 (Vic), to enter into the Taungurung Recognition and Settlement Agreement (RSA). The RSA was entered into on 26 October 2018 with the Taungurung Land and Waters Council,[1] and recognises the Taungurung people as the traditional owners of the land and waters covered by the RSA. It is part of a settlement package that includes several other agreements, including the Taungurung Indigenous Land Use Agreement (Taungurung ILUA), entered into under the Native Title Act 1993 (Cth). The background to the proceeding is set out in more detail in Gardiner v Attorney-General (Gardiner No 1).[2]
[1]Formerly named the Taungurung Clans Aboriginal Corporation.
[2][2020] VSC 224 (Gardiner No 1), [1]–[5].

The plaintiffs claim that the Attorney-General’s decision to enter into the RSA, on the basis that the Taungurung was the ‘traditional owner group’ for the area covered by the RSA, involved an excess of jurisdiction and manifest legal error. They further contend that the Attorney-General acted contrary to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in failing to give proper consideration to the plaintiffs’ cultural rights under s 19(2), and by acting incompatibly with them.…

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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Details

Case: [2020] VSC 516
Decision Date: 18 August 2020

CaseChat Overview and Summary

The case of Gardiner v Attorney-General (No 3) involves the plaintiffs seeking to set aside a decision by the first defendant to enter into a recognition and settlement agreement with the second defendant, pursuant to the Traditional Owner Settlement Act 2010 (Vic). The dispute was brought before the Supreme Court of Victoria, with the plaintiffs arguing that the decision was unlawful. There was a related proceeding in the Federal Court concerning the registration of an indigenous land use agreement under the Native Title Act 1993 (Cth), which the plaintiffs claimed to be a significant factor in their case.

The primary legal issue the court had to address was whether the matters in the Federal Court proceeding were the same as or overlapped with the issues in the current proceeding, and if so, to what extent. The court also had to determine whether the plaintiffs' application to strike out or stay the grounds in their further amended originating motion was an abuse of process. After considering the relevant provisions of both the Traditional Owner Settlement Act 2010 (Vic) and the Native Title Act 1993 (Cth), the court found that there was a significant overlap between the two proceedings. Consequently, the court decided to stay the current proceeding until the determination of the Federal Court proceeding.

The court's reasoning was based on the premise that it was in the interests of justice to avoid a situation where the same or overlapping issues were being determined in two separate proceedings. The court held that the significant overlap between the two cases warranted a stay of the current proceeding, pending the outcome of the Federal Court proceeding. The court also found that the plaintiffs' application to strike out or stay the grounds in their further amended originating motion was not an abuse of process.

As a result of the court's decision, the proceeding was stayed until the determination of the Federal Court proceeding. The court did not make any further orders in the case.

Orders