Kanak, Dominic (Wy) v Commonwealth Pipeline Authority

[1997] FCA 383

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY )          No.     NG37 of 1996
GENERAL DIVISION  )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:           DOMINIC (WY) KANAK

Appellant

ANDACTING CHIEF EXECUTIVE OFFICER MR RAY E COMER OF THE COMMONWEALTH PIPELINE AUTHORITY AND/OR HIS NOMINEE

First respondent

MS MAJORIE PARKINSON AND/OR HER NOMINEE

Second respondent

MR SEAN FLOOD MEMBER ON THE NATIONAL NATIVE TITLE TRIBUNAL AND/OR HIS NOMINEE

Third respondent

MS PATRICIA LANE REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL AND/OR HER NOMINEE

Fourth respondent

CORAM:                  BEAUMONT, HILL AND MERKEL JJ.
WHERE MADE:     SYDNEY
DATE:  27 FEBRUARY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant pay the costs of the respondents.

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 )          No.     NG37 of 1996
GENERAL DIVISION  )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:           DOMINIC (WY) KANAK

Appellant

ANDACTING CHIEF EXECUTIVE OFFICER MR RAY E COMER OF THE COMMONWEALTH PIPELINE AUTHORITY AND/OR HIS NOMINEE

First respondent

MS MAJORIE PARKINSON AND/OR HER NOMINEE

Second respondent

MR SEAN FLOOD MEMBER ON THE NATIONAL NATIVE TITLE TRIBUNAL AND/OR HIS NOMINEE

Third respondent

MS PATRICIA LANE REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL AND/OR HER NOMINEE

Fourth respondent

CORAM:      BEAUMONT, HILL AND MERKEL JJ.

DATE:  27 FEBRUARY 1997

REASONS FOR JUDGMENT

BEAUMONT J:   There are before the Court two appeals, which I take to be appeals as of right and not by leave, from orders by Whitlam J., dated 19 March 1996, dismissing two proceedings, namely NG753 of 1995 and NG37 of 1996.  I will deal at this stage with NG37 of 1996.

In this matter, relief by way of judicial review was sought by the appellant, who appeared in person before both Whitlam J. and the Full Court of the Federal Court today. Whitlam J. dismissed the proceedings summarily, and an appeal is now brought from that order.

Before the Full Court today the appellant has indicated that, in the light of the supervening circumstances that have occurred, there is no utility in pressing on with the matter.  The appellant has frankly acknowledged that the appeal should not be continued. In these circumstances it seems to me, having had the benefit of submissions from both parties, that the appeal should be dismissed.

The order that I propose is that the appeal be dismissed with costs.

The appellant accepts that the ordinary rule as to costs will follow.  That is to say, that costs follow the event, but he seeks to add what he has described as some terms to such an order.

So far as the terms are concerned, the appellant seeks, as I understand him, not only time to pay but also the possibility of the imposition of a condition, presumably to be negotiated, of a consultancy arrangement with the Commonwealth, with a view to satisfying the order for costs in kind, as it were.  In my view, there is no basis upon which the Court could, or should, become involved in such matters, and I would not propose to add any term or condition to that effect.

The order, therefore, that I propose in NG37 of 1996 is that the appeal be dismissed with costs.

HILL J:   I agree.

MERKEL J:   I agree.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Full Court.

Associate: 

Dated:           27 February 1997

Appellant:  The appellant, Mr D W Kanak, appeared in person.

Counsel and Solicitors  Mr A Robertson SC
for the first, second, third                  instructed by the Australian Government Solicitor
and fourth respondents:

Date of hearing:  27 February 1997

Date judgment delivered:                 27 February 1997