Risk v National Native Title Tribunal [2000] FCA 1589
NATIVE TITLE – Review of Registrar’s decision to register claim – information placed before Registrar incorrect – whether delegate erred in law – information Registrar entitled to have regard to – whether Registrar complied with provisions of subs 190C(3) – composition of “native title claim group” - authorisation and identification of “native title claim group” – whether matter should be referred back to Tribunal
WILLIAM RISK v NATIONAL NATIVE TITLE TRIBUNAL and KEVIN LANCE QUALL
NO D 9 of 2000
O’LOUGHLIN J ADELAIDE 10 NOVEMBER 2000
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
D 9 OF 2000
BETWEEN:
WILLIAM RISK APPLICANT
AND:
NATIONAL NATIVE TITLE TRIBUNAL FIRST RESPONDENT
KEVIN LANCE QUALL SECOND RESPONDENT
JUDGE:
O’LOUGHLIN J
DATE OF ORDER:
10 NOVEMBER 2000
WHERE MADE:
ADELAIDE (heard in Darwin)
THE COURT ORDERS THAT:
1.The decision of the delegate be set aside with effect from the date of the decision, 31 May 2000.
2.The Registrar is to refrain from accepting registration of the application of Mr Quall in its present form.
3.The second respondent pay the costs of the applicant which costs are to be taxed in default of agreement.
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
D 9 OF 2000
BETWEEN:
WILLIAM RISK APPLICANT
AND:
NATIONAL NATIVE TITLE TRIBUNAL FIRST RESPONDENT
KEVIN LANCE QUALL SECOND RESPONDENT
JUDGE:
O’LOUGHLIN J
DATE:
10 NOVEMBER 2000
PLACE:
ADELAIDE (heard in Darwin)
REASONS FOR JUDGMENT
These proceedings, which have been commenced under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), have been instituted by William Maxwell Risk (”Mr Risk”). Mr Risk has claimed that he is aggrieved by a decision (“the decision”) of the Registrar of the National Native Title Tribunal (“the Tribunal”). Pursuant to that decision, the Registrar on 31 May 2000, accepted for registration, pursuant to s 190A of the Native Title Act 1993 (Cth) (“the Act”) an application for a determination of native title. On 8 October 1996, the relevant application, claiming native title over certain land, was lodged in the Northern Territory Registry of the Tribunal. The name of the applicant was Kevin Lance Quall (also known as Tibby Quall) (“Mr Quall”); he is the second named respondent in these proceedings; the…
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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AGLC
Risk v National Native Title Tribunal [2000] FCA 1589
Case
[2000] FCA 1589
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Risk sought judicial review of a decision made by the National Native Title Tribunal, which had refused to accept Risk's application for native title. The application was subsequently accepted by the Tribunal in the form submitted by Mr Quall, Risk's legal representative. The primary issue before the court was whether the Tribunal had exercised its powers in accordance with the applicable statutory provisions, specifically whether the Tribunal had the authority to accept an application in a form different from that submitted by the applicant.
The court found that the Tribunal had not exercised its powers in accordance with the relevant statutory provisions. The Tribunal was required to accept the application in the form in which it was submitted by the applicant, and it was not within the Tribunal's power to accept the application in a different form. The court found that the Tribunal had acted beyond its statutory powers by accepting the application in the form submitted by Mr Quall, and that this constituted an error of law.
Consequently, the court set aside the decision of the Tribunal and ordered that the Registrar refrain from accepting the registration of the application in its present form. The court also ordered that the second respondent, Mr Quall, pay the costs of the applicant. The court held that it was appropriate to set aside the decision of the Tribunal and to order costs because the Tribunal had acted beyond its statutory powers and had thereby caused injustice to the applicant.
Orders
Orders of the court
1. The decision of the delegate be set aside with effect from the date of the decision, 31 May 2000.
2. The Registrar is to refrain from accepting registration of the application of Mr Quall in its present form.
3. The second respondent pay the costs of the applicant which costs are to be taxed in default of agreement.