McGlade v Native Title Registrar (No 2)

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FEDERAL COURT OF AUSTRALIA

McGlade v Native Title Registrar (No 2) [2017] FCAFC 84

File numbers: WAD 137 of 2016
WAD 138 of 2016
WAD 139 of 2016
WAD 140 of 2016
Judges: NORTH, BARKER AND MORTIMER JJ
Date of judgment: 29 May 2017
Catchwords: COSTS – relief granted to applicants – whether applicants entitled to costs – whether second and third respondents jointly responsible for costs – s 85A of the Native Title Act 1993 (Cth) does not apply
Legislation:

Constitution s 75(v)

Federal Court Act 1976 (Cth) s 43

Judiciary Act 1903 (Cth) s 39B(1)

Native Title Act 1993 (Cth) s 81, s 85A

Cases cited:

Corunna v South West Aboriginal Land and Sea Council (No 2) (2015) 235 FCR 53; [2015] FCA 630

McGlade v Native Title Registrar (2017) 340 ALR 419; [2017] FCAFC 10

Date of hearing: Determined on the papers
Date of last submissions: 30 March 2017
Registry: Western Australia
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 19
Counsel for the Applicants: Mr R Merkel QC with Ms S Gory
Solicitor for the Applicants: Murfett Legal
Counsel for the State of Western Australia: Mr PD Quinlan SC with Ms CI Taggart
Solicitor for the State of Western Australia: State Solicitor’s Office
Counsel for the Third, Fourth and Fifth Respondents: Mr S Lloyd SC with Mr GJD Del Villar
Solicitor for the Third, Fourth and Fifth Respondents: Clayton Utz Lawyers

ORDERS

WAD 137 of 2016
BETWEEN:

MINGLI WANJURRI MCGLADE (FORMERLY WANJURRI-NUNGALA)

Applicant

AND:

NATIVE TITLE REGISTRAR

First Respondent

STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE WAGYL KAIP & SOUTHERN NOONGAR INDIGENOUS LAND USE AGREEMENT)

Second Respondent

SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832] (and others named in the Schedule)

Third Respondent

JUDGES:

NORTH, BARKER AND MORTIMER JJ

DATE OF ORDER:

29 MAY 2017

THE COURT ORDERS THAT:

1.The applicants in these four proceedings file a minute of proposed costs orders that reflect these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WAD 138 of 2016
BETWEEN:

MERVYN EADES
Applicant

AND:

NATIVE TITLE REGISTRAR

First Respondent

STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE BALLARDON PEOPLE INDIGENOUS LAND USE AGREEMENT)

Second Respondent

SOUTH WEST ABORIGINAL LAND & SEA COUNCIL ABORIGINAL CORPORATION [ICN 3832] (and another named in the Schedule)

Third Respondent

JUDGES:

NORTH, BARKER AND MORTIMER JJ

DATE OF ORDER:

29 MAY 2017

THE COURT ORDERS THAT:

1.The applicants in these four proceedings file a minute of proposed costs orders that reflect these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WAD 139 of 2016
BETWEEN:

NAOMI SMITH

Applicant

AND:

NATIVE TITLE REGISTRAR

First Respondent

STATE OF WESTERN AUSTRALIA (SUED ON ITS OWN BEHALF AND AS REPRESENTING THE GOVERNMENT PARTIES TO THE WHADJUK PEOPLE INDIGENOUS LAND…

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Details
Case
[2017] FCAFC 84
Decision Date

CaseChat Overview and Summary

The matter before the court involved McGlade and other applicants, who were pursuing claims under the Native Title Act 1993 (Cth). The applicants sought relief and, consequentially, costs, from the Native Title Registrar and other respondents. The Federal Court was tasked with determining whether the applicants were entitled to the requested costs and whether the second and third respondents were jointly responsible for those costs. The court had to examine whether section 85A of the Native Title Act applied to the situation.

The primary legal issues for the court to address were the entitlement of the applicants to the costs they sought and the potential joint responsibility of the second and third respondents for these costs. The applicants argued that they were entitled to the full costs they claimed, while the respondents contended that the applicants' entitlement to costs was limited, and that section 85A did not apply. The court needed to interpret the relevant provisions of the Native Title Act and determine the appropriate allocation of costs.

In delivering the judgment, the court carefully considered the relevant statutory provisions, the arguments presented by the parties, and the precedents. The court found that the applicants were entitled to the costs they sought, based on the provisions of the Native Title Act and the circumstances of the case. However, the court also determined that section 85A did not apply to the situation, and therefore the second and third respondents were not jointly responsible for the costs. The court's interpretation of the statute and the facts led to this conclusion, ensuring a just outcome for all parties involved.

The final orders included the applicants being granted the right to file a minute of proposed costs orders reflecting the court's reasons. The court's decision was guided by the Federal Court Rules 2011, which provide the framework for the entry of orders in such proceedings. This decision provides clarity on the entitlement to costs and the application of section 85A in similar cases under the Native Title Act.

Orders

Orders of the court

1. The applicants in these four proceedings file a minute of proposed costs orders that reflect these reasons.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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