Kanak, Dominic Wy v New South Wales Aboriginal Land Council

[1997] FCA 1417

FEDERAL COURT OF AUSTRALIA

Practice and Procedure - whether an order dismissing proceedings summarily was final.

DOMINIC WY KANAK V NEW SOUTH WALES ABORIGINAL LAND COUNCIL

NG 1029 OF 1996

JUDGES:      BEAUMONT, EINFELD AND LEHANE JJ
PLACE:        SYDNEY
DATE:          15 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1029  of   1996

BETWEEN:	DOMINIC WY KANAK Applicant
AND:	NEW SOUTH WALES ABORIGINAL LAND COUNCIL Respondent
JUDGES:		BEAUMONT, EINFELD AND LEHANE JJ
DATE OF ORDER:		15 DECEMBER 1997
WHERE MADE:		SYDNEY

ORDERS:

1. Appeal dismissed with costs.

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 1029 of 1996

BETWEEN:	DOMINIC WY KANAK Applicant
AND:	NEW SOUTH WALES ABORIGINAL LAND COUNCIL Respondent

JUDGES:	BEAUMONT, EINFELD AND LEHANE JJ
DATE:	15 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:
This is an application for leave to appeal from a judgment of Burchett J. summarily dismissing proceedings in the following circumstances.  The applicant, Dominic Kanak, (who was unrepresented at first instance and before us) sought relief under the Administrative Decisions (Judicial Review) Act 1977 as follows:

“Application to review the decision of the NSWALC that they did not reopen the part heard adjourned public inquiry into the nonclaimant applications of the [Commonwealth] Pipeline Authority by the National Native Title Tribunal [NNTT] prior to September 16 1966.

Application to review the conduct of the NSWALC whereby they did not reopen the part heard adjourned public inquiry into the nonclaimant applications of the [Commonwealth] Pipeline Authority by the NNTT before September 16 1996.

Application to review the failure of the NSWALC to decide that the part heard adjourned public inquiry into the nonclaimant applications of the [Commonwealth] Pipeline Authority should have been reopened before September 16 1996.”

The background to the claim for judicial review is fully described in his Honour’s reasons for judgment dated 31 July 1997.

The respondent, the New South Wales Aboriginal Land Council, moved at first instance for the summary dismissal of the proceedings.  Burchett J held that the motion should succeed for the several reasons his Honour then gave.  Accordingly, it was then ordered that the principal proceedings be dismissed.

Mr Kanak now seeks leave to appeal.  But, since the order of dismissal was final, leave is not required (see Port of Melbourne Authority v Anshun Pty Ltd (No.1) (1980) 147 CLR 35 (at 38) per Gibbs CJ; Torrens Aloha Pty Ltd v Citibank NA (1997) 144 ALR 89 (at 91); and Lloyd Werft Bremerhaven v The “Zoya Kosmodemyanskaya”, Beaumont, Burchett and Lindgren JJ, 31 October 1997, unreported, (at 11)).

However, although the appeal should now be treated as brought as of right, it is entirely without merit.  We agree with the primary Judge, for all of the reasons he gave, that the application for judicial review ought to have been summarily dismissed.  Accordingly, the appeal should be dismissed with costs.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Einfeld and Lehane JJ

Associate:

Dated:            15 December 1997

The Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Andrew Chalk Associates
Date of Hearing:	8 December 1997
Date of Judgment:	15 December 1997