Smith v Marapikurrinya Pty Ltd

Case [2011] FCAFC 150

FEDERAL COURT OF AUSTRALIA

Smith v Marapikurrinya Pty Ltd [2011] FCAFC 150

Citation: Smith v Marapikurrinya Pty Ltd [2011] FCAFC 150
Appeal from: Smith v Marapikurrinya (No 2) [2011] FCA 733
Parties: GENE SMITH, MARY ATTWOOD, GEORGE DANN, SHIRLEY LOCKYER, PATRICIA MASON and ROBERT DANN v MARAPIKURRINYA PTY LTD (ACN 127 500 136), DIANA ROBINSON and KERRY ROBINSON
File number: WAD 244 of 2011
Judges: STONE, SIOPIS AND COLLIER JJ
Date of judgment: 25 November 2011
Catchwords:

PRACTICE AND PROCEDURE – standing to seek declaratory relief – whether application connected with Native Title Claim so as to be a matter arising under the Native Title Act – whether appellants, not being the applicant in the Native Title Claim, have standing to seek relief – s 62A Native Title Act 1993 (Cth) – standing to deal with matters arising under the Act granted exclusively to the “applicant” in a native title claim– whether trial judge erred in finding the appellants’ lacked standing.

PRACTICE AND PROCEDURE – consideration of principles concerning grant of declaratory relief – refusal to grant relief in exercise of discretion – no utility in making the declaration – no justiciable controversy

Legislation:

Aboriginal Heritage Act1972 (WA)
Evidence Act 1995(Cth) s 191

Federal Magistrates Act 1999 (Cth) s 17A

Native Title Act 1993 (Cth) s 62A
Trade Practices Act 1974 (Cth) s 52
Cases cited: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79
Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809
Smith v Marapikurrinya (No 2) [2011] FCA 733
Smith v Marapikurrinya Pty Ltd [2011] FCA 330
Smith v Marapikurrinya Pty Ltd [2010] FMCA 5
Date of hearing: 23 November 2011
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 29
Counsel for the Appellants: A Rumsley
Solicitor for the Appellants: A Rumsley, Commercial Disputes Lawyer
Solicitor for the Respondents: P Sheiner

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 244 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

GENE SMITH

First Appellant

MARY ATTWOOD

Second Appellant

GEORGE DANN

Third Appellant

SHIRLEY LOCKYER

Fourth Appellant

PATRICIA MASON

Fifth Appellant

ROBERT DANN
Sixth Appellant
AND:

MARAPIKURRINYA PTY LTD (ACN 127 500 136)

First Respondent

DIANA ROBINSON

Second Respondent

KERRY ROBINSON
Third Respondent

JUDGES:

STONE, SIOPIS AND COLLIER JJ

DATE OF ORDER:

25 NOVEMBER 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 244 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

GENE SMITH
First Appellant

MARY ATTWOOD
Second Appellant

GEORGE DANN
Third Appellant

SHIRLEY LOCKYER
Fourth Appellant

PATRICIA MASON
Fifth Appellant

ROBERT DANN
Sixth Appellant
AND:

MARAPIKURRINYA PTY LTD (ACN 127 500 136)
First Respondent

DIANA ROBINSON
Second Respondent

KERRY ROBINSON
Third Respondent

JUDGES:

STONE, SIOPIS AND COLLIER JJ

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Details
AGLC
Smith v Marapikurrinya Pty Ltd [2011] FCAFC 150
Case
[2011] FCAFC 150
Decision Date

CaseChat Overview and Summary

Smith v Marapikurrinya Pty Ltd involved the appellants, who were not the applicants in a native title claim, seeking declaratory relief in relation to a matter they argued was connected to the native title claim. The primary issue before the court was whether the appellants had standing to seek such relief under section 62A of the Native Title Act 1993 (Cth), which grants standing to deal with matters arising under the Act exclusively to the "applicant" in a native title claim. The court was also required to determine if the trial judge had erred in finding that the appellants lacked standing to seek the relief.

The court found that the appellants did not meet the criteria for standing as set out in section 62A of the Native Title Act. It concluded that the appellants, not being the applicant in the native title claim, were not entitled to seek declaratory relief in relation to the matter. The court further held that the principles concerning the grant of declaratory relief were properly applied by the trial judge in refusing to grant relief, finding no utility in making the declaration and no justiciable controversy present.

Consequently, the appeal was dismissed, and no order was made as to costs. The decision underscores the stringent requirements for standing in matters arising under the Native Title Act and the discretion of the court in granting declaratory relief.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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