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Tigan v Western Australia

Tigan v Western Australia

Case [2010] FCA 993 10 September 2010

Native Title Act 1993 (Cth)

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FEDERAL COURT OF AUSTRALIA
Tigan v State of Western Australia [2010] FCA 993

Citation: Tigan v State of Western Australia [2010] FCA 993

Parties: AUBREY TIGAN ON BEHALF OF THE MAYALA PEOPLE v THE STATE OF WESTERN AUSTRALIA and AUBREY TIGAN, HENRY MOWARLJARLIE & LORNA HUDSON

File number: WAD 6255 of 1998

Judge: GILMOUR J

Date of judgment: 10 September 2010

Catchwords: NATIVE TITLE - standing to file notice of change of solicitors - notice filed pursuant to decision of native title claim group but without consent of all named persons as applicant - whether claim group can act in its own right without reference to members of the applicant - whether applicant may act by majority - meaning of jointly – Native Title Act 1993 (Cth)

Legislation: Native Title Act 1993 (Cth) ss 61, 62A, 66B, 85A(2), 190A, 253
Federal Court Rules O 6 r 9(6)

Cases cited: Ankamuthi People v State of Queensland (2002) 121 FCR 68 followed
Butchulla People v Queensland (2006) 154 FLR 233 referred to
Chapman v Queensland (2007) 159 FCR 507 discussed
Doolan v Native Title Registrar (2007) 158 FCR 56 discussed
McKenzie v South Australia [2006] FCA 891 cited
Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 followed
Ward v Northern Territory [2002] FCA 171 referred to

Date of hearing: 23 & 24 August 2010

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 31

Counsel for the Applicant: Mr G Irving

Solicitor for the Applicant: Kimberley Land Council

Counsel for the Respondents on the motion: Mr S Walker

Solicitor for the Respondents on the motion: Western Legal

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6255 of 1998

BETWEEN:
AUBREY TIGAN & OTHERS ON BEHALF OF THE MAYALA PEOPLE
Applicant

AND:
THE STATE OF WESTERN AUSTRALIA
Respondent

AUBREY TIGAN, HENRY MOWARLJARLIE & LORNA HUDSON
Respondents to the Notice of Motion

JUDGE:

GILMOUR J

DATE OF ORDER:

10 SEPTEMBER 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The Registrar forthwith cause the notice of change of solicitor filed on 15 July 2010 in this proceeding to be removed from the Court file and returned to Western Legal of 15 Adelaide Street, Fremantle, Western Australia 6160.
2.Costs reserved.

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 6255 of 1998

BETWEEN:
AUBREY TIGAN & OTHERS ON BEHALF OF THE MAYALA PEOPLE
Applicant

AND:
THE STATE OF WESTERN AUSTRALIA
Respondent

AUBREY TIGAN, HENRY MOWARLJARLIE & LORNA HUDSON
Respondents to the Notice of Motion

JUDGE:

GILMOUR J

DATE:

10 SEPTEMBER 2010

PLACE:

PERTH

REASONS FOR JUDGMENT

The amended notice of motion dated 24 August 2010 filed by the solicitors for the applicant principally seeks an order directed to the Registrar of the Court for the removal of the notice of change of…

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 Tigan v Western Australia

Details

AGLC: Tigan v Western Australia [2010] FCA 993
Case: [2010] FCA 993
Decision Date

CaseChat Overview and Summary

In Tigan v State of Western Australia, the Federal Court was tasked with determining the validity of a notice of change of solicitors filed on behalf of the Mayala People, a native title claim group, without the consent of all the named persons as applicants. The central legal issues revolved around the interpretation of the Native Title Act 1993 (Cth), specifically sections 61, 62A, 66B, 85A(2), 190A, and 253, and whether the claim group could act in its own right without the consent of all members or if decisions could be made by majority. The Court had to decide if the claim group could unilaterally change solicitors and if the term "jointly" in section 61(2) of the Act allowed for majority decision-making.

Justice Gilmour found that the claim group could not act independently of the named applicants to change solicitors without following the statutory process outlined in the Act. The Court held that only the named applicant, as defined in section 61(1), had the authority to deal with all matters arising under the Act concerning the native title application. This authority was exclusive and could not be exercised by the claim group as a whole. The Court emphasized that the term "jointly" in section 61(2) meant that the named applicants must act in concert, not separately or severally. The decision in Ankamuthi People v State of Queensland (2002) 121 FCR 68 was followed, reinforcing that the claim group's decisions should not circumvent the provisions of the Act. Consequently, the notice of change of solicitor filed by Western Legal was invalid as it was not authorized by the applicant as required by the Act. The Court ordered the Registrar to remove the notice from the court file and return it to Western Legal. The issue of costs was reserved for further argument.

Orders