Smith v Marapikurrinya Pty Ltd - [2011] FCA 330

FEDERAL COURT OF AUSTRALIA
Smith v Marapikurrinya Pty Ltd [2011] FCA 330

Citation: Smith v Marapikurrinya Pty Ltd [2011] FCA 330

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 31 of 2010

Judge: GILMOUR J

Date of judgment: 6 April 2011

Catchwords: NATIVE TITLE – applicant’s standing to bring proceedings in native title determination – Native
Title Act 1993 (Cth) s 17A – whether applicant can bring a native title determination application on their own behalf where the application relates to a Native Title claimant application and they are not members of the applicant for that claim

Legislation: Native Title Act 1993 (Cth) ss 62A, 75B
Trade Practices Act 1974 (Cth) s 52
Federal Magistrates Act 1999 (Cth) s 17A

Cases cited: Roe v Kimberley Land Council [2010] FCA 809
Smith v Marapikurrinya Pty Ltd [2010] FMCA 5

Date of last submissions: 26 July 2010, 21 December 2010

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Solicitor for the Applicants: Mr Alan Rumsley

Solicitor for the Respondents: Mr Lee Christensen of Christensen Vaughan

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 31 of 2010

BETWEEN:
GENE SMITH
First Applicant

MARY ATTWOOD
Second Applicant

GEORGE DANN
Third Applicant

SHIRLEY LOCKYER
Fourth Applicant

PATRICIA MASON
Fifth Applicant

ROBERT DANN
Sixth Applicant

AND:
MARAPIKURRINYA PTY LTD (ACN 127 500 136)
First Respondent

DIANA ROBINSON
Second Respondent

KERRY ROBINSON
Third Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

6 APRIL 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The Registrar of the Court deliver copies of the papers filed in this proceeding together with a copy of these reasons to the solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998: Teddy Roberts v State of Western Australia by 12 April 2011.
2.The solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998 file and serve any written submissions they wish to make in relation to this matter and, in particular, the issue of standing of the applicants by 29 April 2011.
3.The matter be listed for further directions at 9.45 am on Tuesday 3 May 2011.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 31 of 2010

BETWEEN:
GENE SMITH
First Applicant

MARY ATTWOOD
Second Applicant

GEORGE DANN
Third Applicant

SHIRLEY LOCKYER
Fourth Applicant

PATRICIA MASON
Fifth Applicant

ROBERT DANN
Sixth Applicant

AND:
MARAPIKURRINYA PTY LTD (ACN 127 500 136)
First Respondent

DIANA ROBINSON
Second Respondent

KERRY ROBINSON
Third Respondent

JUDGE:

GILMOUR J

DATE:

6 APRIL 2011

PLACE:

PERTH

REASONS FOR JUDGMENT

These proceedings commenced in the Federal Magistrates Court. The applicants broadly sought injunctive relief…

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.

Continue reading Smith v Marapikurrinya Pty Ltd

Details

AGLC: Smith v Marapikurrinya Pty Ltd [2011] FCA 330
Case: [2011] FCA 330
Decision Date: 6 April 2011

CaseChat Overview and Summary

In the Federal Court of Australia, Smith brought proceedings against Marapikurrinya Pty Ltd concerning a dispute over native title. The primary issue was whether Smith had the legal standing to initiate a native title determination application on his own behalf when the application pertained to a Native Title claimant application, and Smith was not a member of the group that had filed the claimant application.

The court was tasked with interpreting the requirements of section 17A of the Native Title Act 1993 (Cth), which stipulates the conditions under which an application for a native title determination can be made. The central legal question was whether Smith, not being a member of the primary applicant group, could independently bring the native title determination application. The court needed to determine if this scenario fell within the exceptions provided by the legislation or if it required the involvement of the primary applicant group.

The court examined the legislative text and relevant case law to ascertain the appropriate interpretation of section 17A. It concluded that the statutory language and existing judicial precedents required that the applicant for a native title determination must be a member of the group that originally lodged the native title claimant application. Given that Smith did not meet this criterion, the court found that he lacked the standing to proceed with the application on his own. Consequently, the court ordered that copies of the filed documents and its reasons be delivered to the solicitors of the primary applicant group and set a deadline for them to submit any relevant written submissions. The matter was then scheduled for further directions.

Orders

Orders of the court

1. The Registrar of the Court deliver copies of the papers filed in this proceeding together with a copy of these reasons to the solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998: Teddy Roberts v State of Western Australia by 12 April 2011.

2. The solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998 file and serve any written submissions they wish to make in relation to this matter and, in particular, the issue of standing of the applicants by 29 April 2011.

3. The matter be listed for further directions at 9.45 am on Tuesday 3 May 2011.

Note:

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Smith v Marapikurrinya Pty Ltd [2011] FCA 330
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 31 of 2010
Judge:		GILMOUR J
Date of judgment:		6 April 2011
Catchwords:		NATIVE TITLE – applicant’s standing to bring proceedings in native title determination – Native Title Act 1993 (Cth) s 17A – whether applicant can bring a native title determination application on their own behalf where the application relates to a Native Title claimant application and they are not members of the applicant for that claim
Legislation:		Native Title Act 1993 (Cth) ss 62A, 75B Trade Practices Act 1974 (Cth) s 52 Federal Magistrates Act 1999 (Cth) s 17A
Cases cited:		Roe v Kimberley Land Council [2010] FCA 809 Smith v Marapikurrinya Pty Ltd [2010] FMCA 5
Date of last submissions:	26 July 2010, 21 December 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Solicitor for the Applicants:	Mr Alan Rumsley
Solicitor for the Respondents:	Mr Lee Christensen of Christensen Vaughan

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 31 of 2010

JUDGE:	GILMOUR J
DATE OF ORDER:	6 APRIL 2011
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	6 APRIL 2011
PLACE:	PERTH