Munda v Western Australia - [2013] HCATrans 168

[2013] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P34 of 2013

B e t w e e n -
ERNEST MUNDA
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 AUGUST 2013, AT 2.15 PM

MR A. BOE: If the Court pleases, I appear with MR D. D. BRUNELLO, for the appellant. (instructed by Aboriginal Legal Service of Western Australia Inc)).

MR J.McGRATH, SC: May it please the Court, with MR L.M. FOX, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions)

FRENCH CJ: Thank you.

MR BOE: The State’s only ground of appeal, alleged manifest inadequacy; the final terms of that ground are at appeal record book 68 where five particulars are attached to the ground. The statutory framework for consideration of that ground in Western Australia is no less restrictive than those that have been considered by this Court, some of which were discussed in the proceeding earlier; in short, error needs to be established whether in fact that is, in this case, patent error by reference to a formulation.

In the Court of Appeal below, the majority at 57, identified the formulation that the court proposed to follow. We have identified that that formulation seems to have been adopted in Western Australia following the decision in Morse out of South Australia in a case called Chan. There were five specific matters which the court undertook to do.

FRENCH CJ: What page of the appeal book are you referring to?

MR BOE: At the moment to record 183, your Honour, at paragraph 57.

FRENCH CJ: Yes.

MR BOE: In the following paragraph from 58 to 62, the court deals with the first two aspects of the formulation. In our submission, at the end of it the court is left with no yardstick with which to determine the ground of appeal, namely that the sentence imposed by the primary judge was so markedly different from those that have been imposed in past in factually comparable cases. In our submission, that almost by itself resolves or should have resolved the appeal to the court below.

At record 184, starting from paragraph 63, the court then went through a number of factors or features attending the original sentence, about which the court or the majority disagreed with the way in which the primary judge dealt with those matters. In our submission, the process that is employed in those two pages of the record book, got dangerously close to, if not to the point of elevating one particular feature of the sentencing below, or by the primary judge, into specific areas and in a fashion that should not have been permitted given the way in which the appeal ground was brought to the court below.

Now, if in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCATrans 168
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Munda against the State of Western Australia concerning the validity of a notice issued under s 13(1) of the *Native Title Act 1993* (Cth) (NTA). The notice purported to terminate native title rights and interests in relation to certain land. Mr Munda, a native title holder, argued that the notice was invalid because it had not been properly served on him.

The central legal issue before the High Court was whether the notice of termination of native title rights and interests, issued under s 13(1) of the NTA, had been validly served on Mr Munda in accordance with the requirements of the NTA and the *Native Title (Notices) Determination 2000* (Cth). This involved an interpretation of the service provisions within the NTA and the associated determination, particularly concerning the method of service on an individual native title holder.

The High Court held that the notice had not been validly served. The Court reasoned that the NTA and the determination prescribed specific methods for service, and that these methods had not been strictly adhered to. The Court emphasised the importance of procedural fairness and the need for clear and unambiguous compliance with statutory service requirements when dealing with the extinguishment of native title rights. Consequently, the notice was found to be ineffective.

The High Court allowed the appeal and ordered that the notice issued under s 13(1) of the *Native Title Act 1993* (Cth) be declared invalid.

Orders