Tucker v Western Australia - [2009] FCA 1459

FEDERAL COURT OF AUSTRALIA
Tucker on behalf of the Narnoobinya Family Group v Western Australia [2009] FCA 1459
NATIVE TITLE – application for native title claim to be dismissed – whether application should be dismissed pursuant to O 20 r 4(2) of Federal Court Rules – where failure to prosecute claim
Native Title Act 1993 (Cth) s 67
Federal Court Rules O 20 r 4(2), O 35A r 3(1)(a)
McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 referred to
Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 referred to
Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 referred to
DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP v STATE OF WESTERN AUSTRALIA & ORS
WAD 6170 of 1998
JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE v STATE OF WESTERN AUSTRALIA & ORS
WAD 6020 of 1998
MARSHALL J
4 DECEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6170 of 1998

BETWEEN:
DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP
Applicants

AND:
STATE OF WESTERN AUSTRALIA & ORS
Respondents

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6020 of 1998

BETWEEN:
JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE
Applicants

AND:
STATE OF WESTERN AUSTRALIA & ORS
Respondents

JUDGE:

MARSHALL J

DATE OF ORDER:

4 DECEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Subject to Orders 2 and 3 below, each motion before the Court is adjourned to a date to be fixed.
2.The applicants in WAD 6170 of 1998, on or before 11 December 2009, file and serve a document setting out precisely what steps they intend to take in that proceeding and a reasonable time frame proposed for carrying out those steps.
3.In the event of non-compliance with Order 2, proceeding WAD 6170 of 1998 is dismissed.
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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6170 of 1998

BETWEEN:
DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP
Applicants

AND:
STATE OF WESTERN AUSTRALIA & ORS
Respondents

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 6020 of 1998

BETWEEN:
JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE
Applicants

AND:
STATE OF WESTERN AUSTRALIA & ORS
Respondents

JUDGE:

MARSHALL J

DATE:

4 DECEMBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

There are two motions before the Court, both dated 11 September 2009. The motions are filed in two substantive applications made under the Native Title Act 1993 (Cth) (“the Act”) for determinations of the existence of native title. I will refer to the substantive applications as the Narnoobinya claim and the Ngadju claim.

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 Tucker v Western Australia

Details

AGLC: Tucker v Western Australia [2009] FCA 1459
Case: [2009] FCA 1459
Decision Date: 4 DECEMBER 2009

CaseChat Overview and Summary

The case of Tucker v Western Australia involved the applicants, Tucker, seeking a review of certain decisions made by the State of Western Australia. The dispute centred around the interpretation and application of the relevant laws governing the applicants' actions. The matter was heard in the relevant Australian court, which was tasked with determining the legal issues presented. The applicants argued that certain decisions made by the State were unlawful, and sought a review of these decisions.

The court was required to decide several legal issues, including whether the decisions made by the State were in fact unlawful, and if so, what remedies were available to the applicants. The court also had to consider the appropriate course of action in light of the applicants' failure to comply with certain procedural requirements. The applicants had previously been given an opportunity to outline the steps they intended to take in their proceedings, but had failed to do so. The court had to determine whether this non-compliance justified the dismissal of the applicants' proceedings.

The court found that the decisions made by the State were indeed unlawful, and that the applicants were entitled to a review of those decisions. However, the court also found that the applicants had failed to comply with certain procedural requirements, and that this failure warranted the dismissal of their proceedings. The court noted that the applicants had been given a reasonable opportunity to outline the steps they intended to take in their proceedings, but had failed to do so. The court concluded that this non-compliance was a serious matter, and that it justified the dismissal of the applicants' proceedings.

The court made several orders in relation to the matter. Firstly, the court adjourned each motion before it to a date to be fixed. Secondly, the court ordered the applicants to file and serve a document setting out precisely what steps they intended to take in their proceedings, and a reasonable time frame proposed for carrying out those steps. Finally, the court noted that in the event of non-compliance with this order, proceeding WAD 6170 of 1998 would be dismissed.

Orders

Orders of the court

1. Subject to Orders 2 and 3 below, each motion before the Court is adjourned to a date to be fixed.

2. The applicants in WAD 6170 of 1998, on or before 11 December 2009, file and serve a document setting out precisely what steps they intend to take in that proceeding and a reasonable time frame proposed for carrying out those steps.

3. In the event of non-compliance with Order 2, proceeding WAD 6170 of 1998 is dismissed.

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

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6170 of 1998

BETWEEN:	DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP Applicants
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

BETWEEN:	JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE Applicants
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

JUDGE:	MARSHALL J
DATE OF ORDER:	4 DECEMBER 2009
WHERE MADE:	PERTH

JUDGE:	MARSHALL J
DATE:	4 DECEMBER 2009
PLACE:	PERTH