Gardiner v Attorney-General (No 4) - [2021] VSC 290

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:	14 May 2021
DATE OF RULING:	21 May 2021
CASE MAY BE CITED AS:	Gardiner v Attorney-General (No 4)
MEDIUM NEUTRAL CITATION:	[2021] VSC 290

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PRACTICE AND PROCEDURE – Temporary stay of proceeding pending determination of related Federal Court proceeding, concerning validity of registration of indigenous land use agreement under Native Title Act 1993 (Cth) – Federal Court proceeding now concluded – Registration of indigenous land use agreement set aside – Whether proceeding should be further stayed pending reconsideration of application to register agreement – No abuse of process – Proceeding to be listed for trial – Native Title Act 1993 (Cth), ss 24CK, 203BE(5), 251A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Gunst QC and Ms AM Sheehan	Holding Redlich
For the First Defendant	Mr PG Willis SC and Ms EA Bennett	Matthew Hocking, Victorian Government Solicitor
For the Second Defendant	Mr R Mathews, Solicitor	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 some detail in Gardiner v Attorney-General (Gardiner No 1),[2] and the procedural history is canvassed in Gardiner v Attorney General (No 3) (Gardiner No 3).[3]
[1]Formerly named the Taungurung Clans Aboriginal Corporation.
[2][2020] VSC 224 (Gardiner No 1), [1]–[5].
[3][2020] VSC 516 (Gardiner No 3), [1]-[10].

The Taungurung ILUA was accepted for registration on the Register of Indigenous Land Use Agreements on 30 April 2020, by a delegate of the Registrar of the National Native Title Tribunal. Its registration prompted the Council to apply for parts of the plaintiffs’ originating motion to be struck out or stayed, on the basis that they were an abuse of process.[4]
[4]Second defendant’s summons filed 5 May 2020 and amended summons filed 7 July 2020.

On 28 August 2020, I stayed the proceeding until the determination of Federal Court proceeding VID 384/2020, including any appeal or further order. The Federal Court proceeding was commenced in early June…

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: [2021] VSC 290
Decision Date: 21 May 2021

CaseChat Overview and Summary

The parties involved in this case were Gardiner and the Attorney-General. The dispute centred around the validity of the registration of an indigenous land use agreement under the Native Title Act 1993 (Cth). The case was heard in the Federal Court of Australia. The court was asked to determine whether the proceeding should be further stayed pending reconsideration of an application to register the agreement, following the conclusion of a related Federal Court proceeding that resulted in the registration being set aside.

The legal issues before the court included whether there was an abuse of process in continuing the proceeding, and whether the proceeding should be stayed pending reconsideration of the registration application. The court examined the relevant provisions of the Native Title Act 1993 (Cth), including sections 24CK, 203BE(5), and 251A. The court considered whether the applicant had acted reasonably in bringing the proceeding and whether there were any circumstances that would justify a further stay.

The court found that there was no abuse of process in continuing the proceeding, and that the applicant had acted reasonably in bringing the proceeding. The court also found that there were no circumstances that would justify a further stay of the proceeding. The court ordered that the proceeding be listed for trial, and that the matter be managed in a way that would facilitate an efficient resolution of the issues in dispute. The court emphasised the importance of avoiding unnecessary duplication of proceedings and the need to manage the proceedings in a way that would minimise the risk of unfairness to any party.

In conclusion, the court determined that the proceeding should not be further stayed pending reconsideration of the application to register the agreement, and that the proceeding should be listed for trial. The court's decision highlights the importance of managing proceedings in a way that avoids unnecessary duplication and minimises the risk of unfairness to any party.

Orders