Ward, Ben v State of Western Australia
[1996] FCA 535
•20 Mar 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 6001 of 1995
)
GENERAL DIVISION )
BETWEEN: BEN WARD & ORS
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondent
Coram: Davies, Hill & Nicholson JJ.
Date: 20 March 1996
Place: Heard in Perth
REASONS FOR JUDGMENT
Davies J: This is an application for leave to appeal from a decision of the learned trial Judge, Lee J, in which his Honour refused to set aside for separate determination certain questions which had been formulated on behalf of the State of Western Australia.
I am of the view that leave to appeal should be refused. I need not state lengthy reasons. The trial Judge dealt with the matter with care and I agree with his Honour's reasons for decision.
The questions proposed to be heard separately seek answers to whether the grant of pastoral leases without reservations in favour of native occupation and the grant of pastoral leases containing such reservations have extinguished the native title which otherwise might subsist in the subject land.
I note that the first such issue has already been determined by Drummond J in The Wik Peoples v State of Queensland (1996) 134 ALR 637. The State of Western Australia does not argue for any relevant distinction between the pastoral leases in that case and those in the present.
As to the second question, I am of the view that the Court would not wish to consider it at this stage without having before it the relevant factors relating to the nature of native occupation and use and to the nature of the occupation and use under the pastoral leases.
Accordingly, in my opinion, leave to appeal should be refused.
I would merely add that his Honour's order was interlocutory and it therefore does not preclude the setting aside of some question for separate determination should the issue to be determined be an appropriate one and should it be convenient to consider it at an early stage separately from the main hearing.
In my opinion the application should be dismissed with costs.
I certify that this and the 2 preceding pages
are a true copy of the reasons for judgment herein of
Associate:
Date: 20 March 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 6001 of 1995
)
GENERAL DIVISION )
BETWEEN: BEN WARD & ORS
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondent
Coram: Davies, Hill & Nicholson JJ.
Date: 20 March 1996
Place: Heard in Perth
REASONS FOR JUDGMENT
Hill J: I agree with the reasons given by his Honour the presiding judge for refusing leave and would like to add the following comments.
The application is for leave to appeal from an interlocutory judgment on a matter of practice and procedure. In accordance with well established principle such leave will only be given where the applicant for leave is able to demonstrate that there has been an error of principle and that there has been some prejudice to it. The State of Western Australia in the present case submitted that there had been an error of principle, which error was said to be encompassed in the following:(a) failing
to give any proper reason for not ordering separate determination of the proposed questions, especially the issue concerning entire extinguishment; (b) failing to accept that the claimant's particulars of native title were a sufficient foundation for the separate hearing; (c) relying upon the fact that the questions for separate hearing did not involve the application of settled law; and, (d), erroneously exercising his discretion.
I might say that his Honour did give reasons in a judgment which was a careful judgment and weighed up the significance of the matter as a matter of public interest, taking into account, among other things, the case management difficulties which arise potentially out of splitting separate issues.
None of the matters referred to involve errors of principle. All that has been demonstrated in the submissions on behalf of the State of Western Australia is that the matter being one of discretion, minds might differ as to the proper exercise of that discretion,but that is not to say that there is a matter of principle involved. I would accordingly dismiss the application for leave.
I certify that this and the preceding page
are a true copy of the reasons for judgment of
the Honourable Justice Hill.
Associate:
Date: 20 March 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA DISTRICT REGISTRY ) No WAG 6001 of 1995
)
GENERAL DIVISION )
BETWEEN: BEN WARD & ORS
Applicant
AND: STATE OF WESTERN AUSTRALIA & ORS
Respondent
Coram: Davies, Hill & Nicholson JJ.
Date: 20 March 1996
Place: Heard in Perth
REASONS FOR JUDGMENT
Nicholson J: I am not persuaded that his Honour did make any error of principle. If, however, there be error in that, I am not persuaded that the discretion which he exercised is one which, in all the circumstances,should by this Court should be differently exercised. I agree with the reasons of the presiding judge and Hill J and I also would refuse leave which was sought.
I certify that this is a true copy of
the reasons for judgment herein of
the Honourable Justice Nicholson.
Associate:
Date: 20 March 1996
Counsel for the Applicants: N.P. Hasluck Q.C.
A. Sheehan
Solicitors for Applicants: Aboriginal Legal Service
Counsel for the First Respondent: C.L. Zelestis
K. Pettit
Solicitor for the First Respondent: Crown Solicitor for the
State of Western Australia
Counsel for the Second Respondent: R.J. Webb
Solicitors for the Second Respondent: Solicitors for the Northern Territory
Counsel for the Fourth and Fifth
Respondents: G. McIntyre
Solicitors for the Fourth Respondent: Northern Land Council
Solicitors for the Fifth Respondent: Kimberley Land Council
Date of Hearing: 20 March 1996
Date of Judgment: 20 March 1996
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