VB (deceased) v State of Western Australia

The Federal Court of Australia heard an application by VB (deceased) and others against the State of Western Australia and others to vary certain orders made in a previous determination. The applicants sought to correct a clerical error in the original orders by replacing the reference to "Reserve 1101" with "Reserve 1011." The original orders pertained to a native title determination and the application to vary these orders was made pursuant to the Federal Court Rules 2011 (Cth). Specifically, the applicants sought to correct an accidental slip or omission under rule 39.05(h) and a clerical mistake under rule 39.05(g).

The legal issues before the court involved determining whether the error was indeed an accidental slip or omission and whether the notification requirements under section 13(1)(b) of the Native Title Act 1996 (Cth) were necessary. The court considered the case of Lovett v Victoria (No 4) (2011) 195 FCR 198, which provided guidance on the application of the slip rule to native title determinations. The court assessed whether the legislature intended that the fulsome notification required by the Act be provided in such circumstances, or whether the procedure under rule 39.05 was more appropriate.

Justice Gilmour found that the error was a clerical mistake, specifically the unintentional reversal of the two middle digits in the reserve number. The reference to "Reserve 1101" was clearly erroneous as there was no such reserve within the determined area. Instead, the correct reserve was "Reserve 1011," which was adjacent to Walcott Inlet and served the same purpose as described in the original orders. Given that the error did not alter the effect of the original orders, Justice Gilmour concluded that the notification requirements under section 13 of the Act were not necessary or appropriate in this context. Consequently, the court made orders to replace the reference to "Reserve 1101" with "Reserve 1011" in paragraph 2(a) of Schedule 4 to the Orders of the Court of 26 May 2011.