PRACTICE AND PROCEDURE: Native Title application – application for summary dismissal - failure of applicant to identify native title claim group – long history of failures to make identification – application granted
NATIVE TITLE – application for summary dismissal
Lands Acquisition Act ss 32(1)(b)(iii), 44(1), 144(3)
KEVIN LANCE (TIBBY) QUALL v WILLIAM MAXWELL RISK AND NORTHERN TERRITORY OF AUSTRALIA
NO DG 6044 of 1998
O’LOUGHLIN J SYDNEY (heard in Darwin) 6 APRIL 2001
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6044 OF 1998
BETWEEN:
KEVIN LANCE (TIBBY) QUALL APPLICANT
AND:
WILLIAM MAXWELL RISK FIRST RESPONDENT
NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT
JUDGE:
O’LOUGHLIN J
DATE OF ORDER:
6 APRIL 2001
WHERE MADE:
SYDNEY (heard in DARWIN)
THE COURT ORDERS THAT:
1. The applicant’s application for a determination of native title be dismissed.
2. That the question of costs be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6044 OF 1998
BETWEEN:
KEVIN LANCE (TIBBY) QUALL APPLICANT
AND:
WILLIAM MAXWELL RISK FIRST RESPONDENT
NORTHERN TERRITORY OF AUSTRALIA SECOND RESPONDENT
JUDGE:
O’LOUGHLIN J
DATE:
6 APRIL 2001
PLACE:
SYDNEY (heard in DARWIN)
REASONS FOR JUDGMENT
Initially, the only matter before the Court was an application for the summary dismissal of these proceedings. The orders that were sought in the notice of motion that was filed on behalf of the first respondent on 14 March 2001 were as follows:
“1.Pursuant to Order 10 Rule 7(1)(a) of the Federal Court Rules the proceedings be dismissed; or alternatively
2.Pursuant to section 84C(1) of the Native Title Act the proceedings be dismissed; or alternatively
3.Pursuant to Order 20 Rule 2(1)(a) of the Federal Court Rules the proceedings be dismissed.”
I will refer to the application for these orders as “the strike out application”
The strike out application was supported by the affidavit of Gregory James Carter, a solicitor having the care and conduct of the application. Some of the relevant facts are contained in Mr Carter’s affidavit. Other non-contentious material has been obtained from various court files. The substantive applicant in these proceedings is Mr Kevin…
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
AGLC
Quall v Risk [2001] FCA 378
Case
[2001] FCA 378
Decision Date
CaseChat Overview and Summary
In the case of Quall v Risk, the Federal Court considered the application of Mr Quall for a determination of native title. The court had to determine whether Mr Quall's application complied with the statutory requirements, specifically those outlined in section 61 of the Native Title Act. The application was originally lodged prior to the 1998 amendments, which introduced stricter requirements for applicants, including the need to assert authorisation by all relevant persons in a native title claimant group.
The legal issues before the court were twofold: first, whether the court should apply the old section 61 to Mr Quall's application, given it was lodged before the 1998 amendments; and second, whether an amendment to the application by Mr Quall necessitated compliance with the new section 61 requirements. The court found that because Mr Quall had amended his application, changing the composition of the claimants, he was required to comply with the new statutory requirements. The court held that the amendment did not merely preserve the status quo, but rather triggered a requirement to adhere to the updated provisions of the Act.
The court concluded that Mr Quall's application did not meet the requirements of the new section 61 of the Native Title Act, as he failed to assert the necessary authorisation. Despite the application being lodged before the amendments, the act of amendment meant that Mr Quall had to comply with the updated legislative framework. Consequently, the court dismissed Mr Quall's application for a determination of native title. The court also reserved the question of costs.
Orders
Orders of the court
1. The applicant’s application for a determination of native title be dismissed.
2. That the question of costs be reserved.
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
Mr Quall has not complied with the terms of the schedule. The only information in his points of claim that identifies the requirements of par (d) of the schedule is that found in par 10. That is inadequate. The information in his proposed amended application for a determination of native title is different but it still does not contain the information that was required by the Court’s order and by the provisions of s 61 of the act.SECTION 84C – CONCLUSION Section 61 of the Native Title Act, as originally in force, contained a table that set out the applications that could have then been made for a determination of native title. Putting to one side certain rights that were reserved to the Commonwealth, the States and the Territories, the persons who could make an application were then described in these terms:“(1)A person or persons claiming to hold the native title either alone or with others; or(2)A person who holds an interest in relation to the whole of the area in relation to which the determination is sought …” The term “native title claim group” did not appear; it only came into the legislation with the 1998 amendments. In the notes that are contained in Table A to the Native Title Amendment Act 1998 (which are entitled “Application, Saving or Transitional Provisions”) note 21 provides as follows:“Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.” Section 84C was introduced by the 1998 Amending Act (“the new Act”) and, as is apparent from a reading of Note 21, ss 61 and 62 of the Act were both amended at the same time. The matter of significance to these proceedings is that the “old” s 61, unlike the “new” s 61, did not require an applicant for determination of native title to assert that he or she or they were “authorised” by all the relevant persons in a native title claimant group. If therefore, note 21 is to be read literally, it would mean that, because Mr Quall’s application was lodged prior to the introduction of the 1998 Amending Act, a strike out application under s 84C is to be considered by having regard to the contents of the old s 61. As there is no suggestion of the new s 61 having retrospective effect, I have no difficulty in accepting that interpretation. If, however, the applicant, as a matter of free choice, decided to amend the application by changing the composition of the claimants, as Mr Quall has done in this case, what then is the position? Is the applicant entitled to rely upon the fact that the application was lodged prior to 30 September 1998 and so ignore the provisions of the new s 61? Or does the act of amendment become a catalyst and so force the applicant to comply with the provisions of the new s 61. A literal reading of the note might suggest the former answer but other provisions of the legislation suggest the latter. I turn then to consider those other provisions.