Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General of New South Wales (No 2)

[2020] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General of New South Wales (No 2) [2020] FCAFC 128

Appeal from:	Roberts on behalf of the Widjabul Wia-Bal v Attorney-General of New South Wales [2019] FCA 1158
File number:	NSD 1380 of 2019
Judges:	REEVES, MURPHY AND GRIFFITHS JJ
Date of judgment:	28 July 2020
Catchwords:	NATIVE TITLE – application for extension of time to file a cross-appeal – cross-appeal to set aside the answer to a separate question – where five questions were answered by the primary judge – where four answers were set aside on appeal – where one of the five answers was not appealed – where the separate question process was determined to be inappropriate – whether it would be anomalous to allow the remaining answer to stand – application granted, cross-appeal allowed
Cases cited:	Roberts on behalf of the Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 103
Date of hearing:	Determined on the papers
Registry:	New South Wales
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	Mr S Glacken QC with Dr A Frith
Solicitor for the Appellant:	NTSCORP Limited
Counsel for the First Respondent:	Mr G Kennett SC with Mr E Lee
Solicitor for the First Respondent:	Crown Solicitor’s Office
Counsel for the Second, Third, Sixth, Eighth and Ninth Respondents:	The Second, Third, Sixth, Eighth and Ninth Respondents did not appear
Counsel for the Fourth and Fifth Respondents:	Ms S Pritchard SC
Solicitor for the Fourth and Fifth Respondents:	Chalk & Behrendt
Counsel for the Seventh Respondent:	The Seventh Respondent filed a Submitting Notice

ORDERS

NSD 1380 of 2019

BETWEEN:

MURRAY JOHN ROBERTS, REGINALD KING, JUNE GORDON, MICHAEL RYAN, JIM SPEEDING, QUEENIE SPEEDING, ASHLEY MORAN, STEVEN ROBERTS, JENNY SMITH AND LOIS JOHNSON ON BEHALF OF THE WIDJABUL WIA-BAL PEOPLE

Appellant

AND:

ATTORNEY-GENERAL OF NEW SOUTH WALES

First Respondent

BYRON SHIRE COUNCIL

Second Respondent

LISMORE CITY COUNCIL (and others named in the Schedule)

Third Respondent

JUDGES:	REEVES, MURPHY AND GRIFFITHS JJ
DATE OF ORDER:	28 JULY 2020

THE COURT ORDERS THAT:

1.The application for extension of time accompanying the first respondent’s submissions filed on 24 June 2020 is granted.

2.The proposed cross-appeal accompanying the first respondent’s submissions filed on 24 June 2020 is allowed.

3.Order 1(3) of the orders made on 30 July 2019 is set aside.

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

REASONS FOR JUDGMENT

THE COURT:

1. On 17 June 2020, after dismissing the appellant’s appeal and ordering that the primary judge’s answers to questions (1), (2), (4) and (5) should be set aside, we also ordered that the parties file submissions “… on the question of whether the order made on 30 July 2019 answering separate question (3) should be set aside …” (see [2020] FCAFC 103).

2. This issue arose because, in its submissions on this appeal, the first respondent foreshadowed that, should it be determined in the manner described above, it wished to make “an application for an extension of time to file a cross-appeal with respect to Question 3 concerning Area 74 so that it may be dealt with in the same manner as the questions with respect to the four Areas the subject of the present appeal” (see [2020] FCAFC 103 at [39]). In this respect, it should be noted that, while questions (1), (2), (4) and (5) were answered by the primary judge in the respondents’ favour, question (3) was answered in the appellant’s favour.

3. In its submissions on this issue, the State contended that, since essentially the same issues arose with respect to all five Areas, “it would be anomalous if the answer given by [the primary judge] were to stand where the Full Court has set aside his Honour’s answers to the other questions on the ground that they were not appropriate for determination”. Accompanying the State’s submissions was an application for extension of time to file a cross-appeal on this issue and a proposed notice of cross-appeal.

4. In its submissions, the appellant neither consented to, nor opposed, the orders sought by the State.

5. In our view, the State is correct in its contention that it would be anomalous to allow the answer to question (3) to stand when it was as much a part of the separate question procedure that led to the answers to the other four questions being set aside. We, therefore, propose to grant the State’s application for an extension of time to file its proposed cross-appeal, allow the proposed cross-appeal and order that the answer to question (3) be set aside.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Murphy and Griffiths.

Associate:       

Dated:       28 July 2020

SCHEDULE OF PARTIES

NSD 1380 of 2019
Respondents
Fourth Respondent:	JALI LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent:	NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Sixth Respondent:	NTSCORP LIMITED
Seventh Respondent:	TELSTRA CORPORATIONS LIMITED
Eighth Respondent:	TRANSGRID
Ninth Respondent:	NGULINGAH LOCAL ABORIGINAL LAND COUNCIL