FEDERAL COURT OF AUSTRALIA
Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321
Citation: Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321 Parties: IAN LEVINGE & ORS ON BEHALF OF THE GOLD COAST NATIVE TITLE GROUP v THE STATE OF QUEENSLAND & ORS File number: QUD 346 of 2006 Judge: REEVES J Date of judgment: 23 November 2012 Catchwords: NATIVE TITLE – authorised applicant of native title claim group seeking leave to discontinue native title determination application –whether authorised applicant has authority pursuant to s 62A of the Native Title Act 1993 (Cth) to seek leave to discontinue proceedings – leave to discontinue subject to discretion – whether leave should be granted where no evidence that native title claim group members have been informed or consulted – where reason for discontinuance is lack of resources – where authorised applicant intends to file another application for native title determination over same claim area at a future unspecified date if leave granted – whether conditions can be imposed upon discontinuance that impedes right of native title claim group to file a further claim over same claim area.
Held: the authorised applicant has authority to apply for leave to discontinue proceedings – leave to discontinue not granted.Legislation: Aboriginal Cultural Heritage Act 2003 (Qld)
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Native Title Act 1993 (Cth)
Federal Court Rules
Federal Court Rules 2011Cases cited: Anderson v Western Australia (2003) 134 FCR 1; [2003] FCA 1423
Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073
Attorney-General v Wentworth (1988) 14 NSWLR 481
Bennell v State of Western Australia [2004] FCAFC 338
Close on behalf of the Githabul People #2 v State of Queensland (2010) 190 FCR 182; [2010] FCA 828
Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311
Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77
Hunter v Leahy (1999) 91 FCR 214; [1999] FCA 1075
Jones v Skyring (1992) 109 ALR 303
Kokatha Native Title Claim v State of South Australia [2006] FCA 838
MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28
Northern Territory of Australia v GPAO (1999) 196 CLR 553; [1999] HCA 8
Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819
Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907
Sambo v State of Western Australia (No 2) [2010] FCA 927
Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382Date of hearing: 24 October 2012 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 64 Solicitor for the Applicant: Mr Wilson of Doyle Wilson Counsel for…
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- AGLC
- Levinge v Queensland [2012] FCA 1321
- Case
- [2012] FCA 1321
- Decision Date
CaseChat Overview and Summary
Levinge v Queensland involved an application by an authorised applicant of a native title claim group seeking leave to discontinue a native title determination application. The dispute was heard in the Federal Court of Australia. The primary issue before the court was whether the authorised applicant had the authority under section 62A of the Native Title Act 1993 (Cth) to seek leave to discontinue the proceedings. Additionally, the court had to decide whether, in the exercise of its discretion, leave should be granted given that there was no evidence that the members of the native title claim group had been informed or consulted about the discontinuance. The reason for the discontinuance was stated to be a lack of resources, and the applicant intended to file another application for native title determination over the same claim area at a future unspecified date if leave was granted. The court also considered whether conditions could be imposed upon the discontinuance that might impede the right of the native title claim group to file a further claim over the same area.
The court reasoned that the authorised applicant did indeed have the authority to apply for leave to discontinue the proceedings under section 62A of the Native Title Act. However, it concluded that leave should not be granted because there was no evidence that the members of the Gold Coast native title claim group had been notified of the application and had expressed their views on it. The court emphasised that the decision to grant leave to discontinue was subject to its discretion, and in this case, the absence of consultation with the native title claim group members was a significant factor. Furthermore, the court noted that imposing conditions that could impede the right of the native title claim group to file a further claim over the same area would not be appropriate.
The court ultimately dismissed the application for leave to discontinue the proceedings. It was clear from the reasoning provided that the lack of consultation and the potential impact on the rights of the native title claim group members were critical factors in the decision. The court's decision underscored the importance of ensuring that native title claim groups are properly informed and consulted when significant decisions affecting their native title claims are being made.
The court reasoned that the authorised applicant did indeed have the authority to apply for leave to discontinue the proceedings under section 62A of the Native Title Act. However, it concluded that leave should not be granted because there was no evidence that the members of the Gold Coast native title claim group had been notified of the application and had expressed their views on it. The court emphasised that the decision to grant leave to discontinue was subject to its discretion, and in this case, the absence of consultation with the native title claim group members was a significant factor. Furthermore, the court noted that imposing conditions that could impede the right of the native title claim group to file a further claim over the same area would not be appropriate.
The court ultimately dismissed the application for leave to discontinue the proceedings. It was clear from the reasoning provided that the lack of consultation and the potential impact on the rights of the native title claim group members were critical factors in the decision. The court's decision underscored the importance of ensuring that native title claim groups are properly informed and consulted when significant decisions affecting their native title claims are being made.
Orders
Orders of the court
1. The application filed 18 September 2012 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Before leaving this issue, I should add this. None of the authorities I have referred to above (at [58]–[60]) appears to have been raised with the Court in either Close or Gale. This may be explained by the fact that those decisions both appear to have involved a potential abuse of the processes of the Court. Thus, they would fit into the exception mentioned in those authorities. However, if I am incorrect in this assessment, for the reasons I have given above I would respectfully disagree with those decisions insofar as they may be taken to express the view that, absent a situation involving a vexatious litigant or a potential abuse of the processes of the Court, this Court has the power to impose conditions impeding the right of a native title claim group to file a native title determination application under the NTA.CONCLUSION In summary, for the reasons set out above, I have concluded that:(a)the Applicant has the authority to apply for leave to discontinue these proceedings; and(b)the Court should not exercise its discretion to grant the Applicant leave to discontinue these proceedings in the absence of any evidence that the members of the Gold Coast NTCG have been notified of this application and expressed their views on it. This application for leave to discontinue these proceedings must therefore be dismissed.
Ratio Decidendi
Legal Principle Established
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