Lovett v Victoria (No 4)
[2011] FCA 931
•19 July 2011
FEDERAL COURT OF AUSTRALIA
Lovett on behalf of the Gunditjmara People v State of Victoria (No 4) [2011] FCA 931
Citation: Lovett on behalf of the Gunditjmara People v State of Victoria (No 4) [2011] FCA 931 Parties: JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE v THE STATE OF VICTORIA AND OTHERS
EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE v THE STATE OF VICTORIA AND OTHERS
File number(s): VID 6004 of 1998
VID 655 of 2006Judge: NORTH J Date of judgment: 19 July 2011 Catchwords: NATIVE TITLE – practice and procedure – application to amend determination of native title – accidental omission in determination area table – whether correct procedure under s 13 Native Title Act 1993 (Cth) or O 35 r 7 Federal Court Rules Legislation: Federal Court Rules O 35 r 7
Native Title Act 1993 (Cth) ss 13, 61, 63, 66
Date of hearing: 19 July 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: Ms A Keely Solicitor for the Applicant: Native Title Services Victoria Counsel for the State of Victoria: Mr T Neal QC with Ms M Scalzo Solicitor for the State of Victoria: Victorian Government Solicitor’s Office Counsel for the Commonwealth of Australia: Ms E Nance Solicitor for the Commonwealth of Australia: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6004 of 1998
BETWEEN: JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE
ApplicantsAND: THE STATE OF VICTORIA AND OTHERS (as per list of respondent parties)
Respondents
JUDGE:
NORTH J
DATE OF ORDER:
19 JULY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Native Title Determination made in relation to this application on 30 March 2007 be amended by inserting into Schedules 2 and 3 to the determination Area 2057 to Area 2073 as set out in the document attached to this Order and marked “A”.
2.The document inserted into Schedules 2 and 3 of the Determination note that the additions were made pursuant to these orders.
3.The Native Title Registrar is directed to include in the National Native Title Register the details of the determination as amended in accordance with Order 1.
4.The Native Title Registrar is directed to notify the relevant land titles office of the details of the determination as amended in accordance with Order 1.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
Area
Entry Parcel Id Allotment Section Parish Township Further Details Sch 2- Native Title Sch 3- No native Title 2057 A P040844 3A A Banangal Part not covered by freehold grants and road described in entry B ▲ 2058 B P040844 3A A Banangal Part covered by freehold grants and road ▼ 2059 A P044456 44E Dunmore Part not covered by road described in entry B ▲ 2060 B P044456 44E Dunmore Part covered by road ▼ 2061 P040299 7 14 Macarthur Macarthur (T) ▲ 2062 A P043480 5E 8A Monivae Part not covered by public works described in entry B ▲ 2063 B P043480 5E 8A Monivae Part covered by public work (drain) ▼ 2064 A P043493 8A 12 Monivae Part not covered by public works described in entry B ▲ 2065 B P043493 8A 12 Monivae Part covered by toilet block and judge's boxes ▼ 2066 A P043494 8B 12 Monivae Part not covered by public works described in entry B ▲ 2067 B P043494 8B 12 Monivae Part covered by club rooms, toilet block and storage shed ▼ 2068 P043481 1 8A Monivae Government road shown on 1878 Parish Plan ▼ 2069 P043492 7C 11 Monivae Freehold grant in 1869 ▼ 2070 A P365401 8A Napier Part not covered by public works described in entry B ▲ 2071 B P365401 8A Napier Part covered by steel survey trig beacon and monument ▼ 2072 P365397 32B Napier ▲ 2073 P041411 66B Tyrendarra ▲ “A”
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 655 of 2006
BETWEEN: EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE
ApplicantsAND: THE STATE OF VICTORIA AND OTHERS (as per list of respondent parties)
Respondents
JUDGE:
NORTH J
DATE OF ORDER:
19 JULY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Native Title Determination made in relation to this application on 30 March 2007 be amended by inserting into Schedules 2 and 3 to the determination Area 2057 to Area 2073 as set out in the document attached to this Order and marked “B”.
2.The document inserted into Schedules 2 and 3 of the Determination note that the additions were made pursuant to these orders.
3.The Native Title Registrar is directed to include in the National Native Title Register the details of the determination as amended in accordance with Order 1.
4.The Native Title Registrar is directed to notify the relevant land titles office of the details of the determination as amended in accordance with Order 1.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
“ B ” Area Entry Parcel Id Allotment Section Parish Township Further Details Sch 2- Native Title Sch 3- No native Title 2057 A P040844 3A A Banangal Part not covered by freehold grants and road described in entry B ▲ 2058 B P040844 3A A Banangal Part covered by freehold grants and road ▼ 2059 A P044456 44E Dunmore Part not covered by road described in entry B ▲ 2060 B P044456 44E Dunmore Part covered by road ▼ 2061 P040299 7 14 Macarthur Macarthur (T) ▲ 2062 A P043480 5E 8A Monivae Part not covered by public works described in entry B ▲ 2063 B P043480 5E 8A Monivae Part covered by public work (drain) ▼ 2064 A P043493 8A 12 Monivae Part not covered by public works described in entry B ▲ 2065 B P043493 8A 12 Monivae Part covered by toilet block and judge's boxes ▼ 2066 A P043494 8B 12 Monivae Part not covered by public works described in entry B ▲ 2067 B P043494 8B 12 Monivae Part covered by club rooms, toilet block and storage shed ▼ 2068 P043481 1 8A Monivae Government road shown on 1878 Parish Plan ▼ 2069 P043492 7C 11 Monivae Freehold grant in 1869 ▼ 2070 A P365401 8A Napier Part not covered by public works described in entry B ▲ 2071 B P365401 8A Napier Part covered by steel survey trig beacon and monument ▼ 2072 P365397 32B Napier ▲ 2073 P041411 66B Tyrendarra ▲
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 6004 of 1998
BETWEEN: JOHN MAXWELL LOVETT, CHRISTINA ISABEL SAUNDERS, EUGENE SAMUEL LOVETT AND GEORGINA HELEN REDFERN ON BEHALF OF THE GUNDITJMARA PEOPLE
ApplicantAND: THE STATE OF VICTORIA AND OTHERS
RespondentVID 655 of 2006 BETWEEN: EUGENE SAMUEL LOVETT AND MARIE THORNHILL ON BEHALF OF THE GUNDITJMARA PEOPLE
ApplicantAND: THE STATE OF VICTORIA AND OTHERS
Respondent
JUDGE:
NORTH J
DATE:
19 JULY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 30 August 1996, an application was filed on behalf of the Gunditjmara people for a determination of native title in relation to land and waters in South West Victoria (VID6004/1998). On 9 June 2006, a further application was filed in relation to parts of the country which had not been included in the original application (VID655/2006). On 18 January 2007, the Court made orders dividing the proceedings into two parts. These orders were made so the Court could deal with the first part (Part A) ahead of the second part (Part B), as it became evident there may be additional people with rights and interests in the Part B area together with the Gunditjmara people. On 30 March 2007, the proceeding relating to the land and waters comprised within the Part A area was determined by consent under s 87 of the Native Title Act 1993 (Cth) (the Act) (Part A determination).
On 15 July 2011, the Gunditjmara people filed notices of motion in each of their applications for a determination of native title seeking to correct certain errors in the description of the land and waters included in the Part A determination. The motions are brought under O 35 r 7(2)(f) and (3) of the Federal Court Rules, which provide:
(2)The Court may vary or set aside a judgment or order after the order has been entered where:
…
(f)the party in whose favour the order was made consents.
(3)A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.
The Gunditjmara people seek to amend the Part A determination by adding 11 parcels of land to the second and third schedules of the Part A determination. The second schedule lists those parcels of land in which native title exists. The third schedule lists those parcels of land in which native title does not exist. A description of each of the parcels of land comprised in the Part A determination is contained in the Determination Area Table (DAT). The DAT indicates in respect of each parcel of land whether it falls within Schedule 2 or Schedule 3, or partly in both.
ACCCIDENTAL SLIP OR OMISSION UNDER O 35 R 7(3)
The motions in both applications are brought under O 35 r 7(3) because a mistake was made in the Part A determination order as a result of an accidental omission. An omission or mistake made by the legal representatives of a party falls within the ambit of O 35 r 7(3). In an affidavit sworn on 18 July 2011, Ms Maria Scalzo, the managing principal solicitor employed by the Victorian Government’s Solicitor’s Office, which represents the State of Victoria, explained how the 11 parcels of land sought to be included in the Part A determination were accidentally omitted by the legal representatives of the Gunditjmara people and the State of Victoria at the time that determination was made. All of the parcels are located on or near the border of the Part A and Part B area. The errors are therefore not surprising. The affidavit explains that 4 of the parcels are located wholly within the boundary of the Part A area, but were incorrectly listed as falling within the Part B area. It then explains that 7 of the parcels are located partly within the Part A area and partly within the Part B area. These 7 parcels were correctly listed as falling within the Part B area, but were accidentally omitted from the Part A area list.
VARIATION BY CONSENT UNDER O 35 R (7)(2)(F)
The motions in both applications are also brought under O 35 r 7(2)(f), which requires the consent of the party in whose favour the Part A determination was made. Ms Scalzo’s affidavit provided evidence regarding the consent of any persons holding an interest in the 11 omitted parcels of land. In particular, the affidavit stated that the Department of Sustainability and Environment (DSE) and the Department of Primary Industries (DPI) conducted searches of the parcels of land under their administration to identify any current interest holders in relation to the 11 omitted parcels of land. The DSE identified 8 such interests held by different interest holders. The DPI identified one interest held by a single interest holder. Consequently there are 9 DSE and DPI issued interests existing over the 11 omitted parcels in the Part A determination.
Between 1 and 4 July 2011, the State of Victoria sent letters to the 9 identified interest holders indicating that it proposed to file an application to amend the Part A determination to insert the omitted parcels, and advising the interest holders of the scheduled hearing date. The evidence establishes that responses were received from a number of the interest holders, and that none of the interest holders raised any objection to the proposed changes or indicated a desire to be involved in the hearing of the application. Thus, the requirement of O 35 r 7(2)(f) is satisfied as the party in whose favour the determination was made, the Gunditjmara people in both applications, consents to the variation.
VARIATION UNDER S 13(1)(B) OF THE ACT
A question arises whether the appropriate procedure to be adopted for variation of the Part A determination is the procedure under s 13(1)(b) of the Act, which allows the Court to revoke or vary an approved determination of native title on the grounds set out in s 13(5) of the Act. The proposed variations to the Part A determination would fall within s 13(5)(b) of the Act because the interests of justice would demand that the Part A determination be varied to include the omitted 11 parcels. However, if the s 13 procedure is invoked, the notification provisions in s 61, s 63 and s 66 of the Act would apply. At the time when the applications for a determination of native title were made there were numerous respondents. Consequently, the notification process under s 13 would be more onerous than if O 35 r 7 of the Federal Court Rules were relied upon.
It is open to the Court to make orders amending the Part A determination under either s 13 of the Act or O 35 r 7 of the Federal Court Rules. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35 r 7(2)(f) and (3) would be regarded as appropriate in the circumstances.
Given the nature of the amendments sought in the present case, and the consent of both the applicants and the parties whose interests might be affected, no useful purpose would be served by requiring the full notification process under ss 13, 61, 63, and 66 of the Act to be followed.
CONCLUSION
Thus, the order of the Court in each of the applications will be made under O 35 r 7(2)(f) and (3) of the Federal Court Rules, in the terms of the motion to amend the Part A determination by adding references in the DAT to the 11 omitted parcels of land and their status under schedule 2 or schedule 3. The form of amendment appended to the notices of motion should, when inserted into the DAT, bear the heading that the variations were made pursuant to the order of the Court made today.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 16 August 2011
List of Respondent Parties
VID 6004 of 1998Interest Group 1. Government Interests – State of Victoria
State of Victoria
Interest Group 3. Commonwealth of Australia
Commonwealth of Australia
Interest Group 11. Victorian Commercial Fishing Licence
Abdiva Investments Pty Ltd
Christopher Wayne Carson
Tony Phillip Crapper
Rodney Ernest Crowther
Double Eight Golden Eels' (Australia) Pty Ltd
Eels Australis Pty Ltd
Gregory William Hollis
Dean Anthony Humphries
David Malcolm and Elizabeth Ann Johnston
Brampton and Jacqueline Linda Le Page
Andrew Levings
LJ & SA Plummer Fishing Pty Ltd
Roderick McDonald
Alan and Tanya Moncrieff
Steven James Nathan
Glen Edward Plummer
Phillip A Plummer
Peter R Price
Graham Richard Quarrell
Peter William Sandow
Richard John Smith
Murray Edward Thiele
Bert Davey Tober
Trymore Investments Pty LtdInterest Group 22. Public Access 2
Powercor Australia Limited
Interest Group 24. Telecommunication
Telstra Corporation Limited
List of Respondent Parites
VID 655 of 2006Interest Group 1. Government Interests – State of Victoria
State of Victoria
Interest Group 3. Commonwealth of Australia
Commonwealth of Australia
Interest Group 11. Victorian Commercial Fishing Licence
Abdiva Investments Pty Ltd
LJ & SA Plummer Fishing Pty Ltd
Glen Edward Plummer
Phillip Plummer
Trymore Investments
88 Golden Eels (Aust) Pty Ltd
Western Victorian Eel Growers Group Pty Ltd
Peter Sandow
David Malcolm and Elizabeth Ann Johnston
Christopher Wayne Carson
Rodney Ernest Crowther
DA & JE Humphries
Murray Edward Thiele
Kenneth John Osborne
Roderick McDonandInterest Group 22. Public Access 2
Powercor Australia Limited
Interest Group 24. Telecommunication
Telstra Corporation Limited
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