Webster on behalf of Ngarigo Peoples v State of New South Wales - [2024] FCA 615

FEDERAL COURT OF AUSTRALIA
Webster on behalf of Ngarigo Peoples v State of New South Wales [2024] FCA 615

File number(s): NSD 465 of 2024

Judgment of: RAPER J

Date of judgment: 13 June 2024

Catchwords:
DISCRIMINATION LAW – application for an interlocutory injunction preventing the State of New South Wales from killing, shooting and trapping wild horses and other wildlife in the Kosciuszko National Park and other areas – whether the applicant is able to bring an injunction application claiming racial discrimination under the Racial Discrimination Act 1975 (Cth) where he has not commenced a claim against the same respondent for the same conduct before the Australian Human Rights Commission nor has such a complaint been terminated by the Commission

CONSTITUTIONAL LAW – whether by operation of s 109 of the Constitution, s 10 of the Racial Discrimination Act 1975 (Cth) invalidates those aspects of the Kosciuszko Wild Horse Heritage Act 2018 (NSW) which authorises, amongst other things, the culling of wild horses

PRACTICE AND PROCEDURE – application for interlocutory orders – whether prima facie case – whether the balance of convenience favours a grant of interlocutory injunctive relief – application for interlocutory application dismissed

Legislation:
Constitution s 109

Federal Court of Australia Act 1973 (Cth) s 23

Judiciary Act 1903 (Cth) ss 78B, 78B(5)

Native Title Act 1993 (Cth) ss 61, 62, 85A, 213, 223

Racial Discrimination Act 1975 (Cth) s 10

Federal Court Rules 2011 (Cth) r 4.01(1)

Kosciuszko Wild Horse Heritage Act 2018 (NSW) ss 9, 10

National Parks and Wildlife Act 1974 (NSW)

Cases cited:
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Fejo (on behalf of Larrakia People) v Northern Territory [1998] HCA 58; 195 CLR 96

Mabo v Queensland (No 2) (1992) 175 CLR 1

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422

Samsung Electronics v Apple [2011] FCAFC 156; 217 FCR 238

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 43

Date of hearing: 7 June 2024

Counsel for the Applicant: Mr D Fuller was granted leave to appear on behalf of the applicant

Counsel for the Respondent: Mr JG Wherrett

Solicitors for the Respondent: NSW Crown Solicitor’s Office

.

ORDERS

NSD 465 of 2024

BETWEEN:
MICHAEL WEBSTER ON BEHALF OF NGARIGO PEOPLES

Applicant

AND:
STATE OF NEW SOUTH WALES

Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

13 JUNE 2024

THE COURT ORDERS THAT:
1.The applicant’s application for interlocutory relief, filed on 19 April 2024, be dismissed.
2.The applicant pay the respondent’s costs.
3.The matter be listed for further case management on 27 June 2024 at 9:30 am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
RAPER J:

Mr…

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.

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Details

AGLC: Webster on behalf of Ngarigo Peoples v State of New South Wales [2024] FCA 615
Case: [2024] FCA 615
Decision Date: 13 June 2024

CaseChat Overview and Summary

In the case of Webster on behalf of Ngarigo Peoples v State of New South Wales, the applicant sought an interlocutory injunction to prevent the State of New South Wales from engaging in activities such as killing, shooting, and trapping wild horses and other wildlife in the Kosciuszko National Park and other areas. The applicant argued that these actions constituted racial discrimination under the Racial Discrimination Act 1975 (Cth), as the activities disproportionately affected the Ngarigo people. The court was tasked with determining whether the applicant could bring an injunction application without having first commenced a claim against the same respondent for the same conduct before the Australian Human Rights Commission, and whether such a complaint needed to be terminated by the Commission.

The legal issues centred on the admissibility of the applicant’s claim and the potential invalidation of the Kosciuszko Wild Horse Heritage Act 2018 (NSW) by section 10 of the Racial Discrimination Act 1975 (Cth). The court had to assess whether the applicant had established a prima facie case for racial discrimination, the balance of convenience, and whether the proposed injunction would be just and convenient in all the circumstances. Furthermore, the court examined the constitutional validity of section 10 of the Racial Discrimination Act 1975 (Cth) in relation to state legislation.

The court found that the applicant had not established a prima facie case for racial discrimination, as the evidence did not sufficiently demonstrate that the activities in question were racially motivated or had a discriminatory impact. Additionally, the balance of convenience did not favour the grant of interlocutory injunctive relief, given the potential impact on wildlife management and the state's interest in maintaining public safety and ecological balance. The court also concluded that section 10 of the Racial Discrimination Act 1975 (Cth) did not invalidate the relevant aspects of the Kosciuszko Wild Horse Heritage Act 2018 (NSW). Consequently, the application for an interlocutory injunction was dismissed.

The court ordered that the applicant pay the respondent's costs, in line with the usual practice in administrative and constitutional cases. The matter was set for further case management to allow the applicant to consider proceeding with the case generally and to schedule the next steps. The court also requested the State of New South Wales to inform the applicant of the usual procedural steps and to provide its position on the matter.

Orders

Orders of the court

1. The applicant’s application for interlocutory relief, filed on 19 April 2024, be dismissed.

2. The applicant pay the respondent’s costs.

3. The matter be listed for further case management on 27 June 2024 at 9:30 am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to the question of costs, whilst the awarding of costs is discretionary, it is ordinary that costs follow the event in administrative and constitutional cases (where there is no other applicable statutory fetter), namely that the losing party is required to pay the other party’s costs. The State of NSW seeks its costs by application of the ordinary principle to which I have referred. I note that in native title proceedings each party pays their own costs: s 85A of the NT Act. However, both parties agree that these are not native title proceedings under that Act. Mr Webster submitted that he should not be required to pay costs because of the public interest dimension of his case. However, I am of the view, that given the weakness of his case, any public interest element enlivened does not satisfy me that I ought to depart from the ordinary course. Conclusion Accordingly, the application for an interlocutory injunction is refused. Mr Webster, consistent with the usual course, should be ordered to pay the State of NSW’s costs. I note that this matter has only just been commenced and that Mr Webster has sought interlocutory relief on an urgent basis. Accordingly, it is appropriate to set down this matter for further case management in a few weeks for Mr Webster to consider whether he wants to proceed with the matter generally and to timetable the matter in the ordinary way. It would of assistance if the State of New South Wales could write to Mr Webster promptly to inform him of what the ordinary next steps are in a proceeding of this kind and foreshadow its own position with respect to the matter generally and timetabling.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 465 of 2024
Judgment of:	RAPER J
Date of judgment:	13 June 2024
Catchwords:	DISCRIMINATION LAW – application for an interlocutory injunction preventing the State of New South Wales from killing, shooting and trapping wild horses and other wildlife in the Kosciuszko National Park and other areas – whether the applicant is able to bring an injunction application claiming racial discrimination under the Racial Discrimination Act 1975 (Cth) where he has not commenced a claim against the same respondent for the same conduct before the Australian Human Rights Commission nor has such a complaint been terminated by the Commission CONSTITUTIONAL LAW – whether by operation of s 109 of the Constitution, s 10 of the Racial Discrimination Act 1975 (Cth) invalidates those aspects of the Kosciuszko Wild Horse Heritage Act 2018 (NSW) which authorises, amongst other things, the culling of wild horses PRACTICE AND PROCEDURE – application for interlocutory orders – whether prima facie case – whether the balance of convenience favours a grant of interlocutory injunctive relief – application for interlocutory application dismissed
Legislation:	Constitution s 109 Federal Court of Australia Act 1973 (Cth) s 23 Judiciary Act 1903 (Cth) ss 78B, 78B(5) Native Title Act 1993 (Cth) ss 61, 62, 85A, 213, 223 Racial Discrimination Act 1975 (Cth) s 10 Federal Court Rules 2011 (Cth) r 4.01(1) Kosciuszko Wild Horse Heritage Act 2018 (NSW) ss 9, 10 National Parks and Wildlife Act 1974 (NSW)
Cases cited:	Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Fejo (on behalf of Larrakia People) v Northern Territory [1998] HCA 58; 195 CLR 96 Mabo v Queensland (No 2) (1992) 175 CLR 1 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 Samsung Electronics v Apple [2011] FCAFC 156; 217 FCR 238
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	43
Date of hearing:	7 June 2024
Counsel for the Applicant:	Mr D Fuller was granted leave to appear on behalf of the applicant
Counsel for the Respondent:	Mr JG Wherrett
Solicitors for the Respondent:	NSW Crown Solicitor’s Office

ORDER MADE BY:	RAPER J
DATE OF ORDER:	13 JUNE 2024