In this matter, Jagot J dismissed an amended application for leave to appeal filed in relation to the s 66B decision of the primary judge.
In April 2017, Reeves J dismissed an interlocutory application under s 66B of the Native Title Act 1993 (Cth) (NTA) to replace the applicant: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373.
The principles for making a an application for leave to appeal were set out by Jagot J at [2]: ‘The applicant needs to persuade the Court that the primary decision is attended by sufficient doubt to warrant reconsideration, the Court must also be satisfied that substantial injustice would result should leave be refused, supposing the primary decision to be wrong.
These criteria were applied in the present case, recognising that the power of the Court to make an order for replacement of an applicant under s 66B of the NTA is a discretionary one, so that, ultimately, the principles in House v R (1936) 55 CLR 499 regulate the exercise of any form of appellate scrutiny.
Whilst there were six proposed grounds which were said to give doubt to the decision of the primary judge, Jagot J was not persuaded that any of those grounds raised sufficient doubt. Jagot J dealt with the six grounds as follows:
That the primary Judge erred with respect to comments made about the form of the meeting notice. Jagot J determined at [5] that ‘read as a whole, the notice did not give the Wangan and Jagalingou people as a whole a reasonable opportunity to decide whether or not to attend the meeting and participate in the deliberations which were to occur at that meeting. Jagot J agreed with the Reeves J that ‘the notice for the March 2016 meeting was defective on numerous grounds, only some of which were relied upon by his Honour in his reasons for judgment’(at [7]).
That the primary judge erred in an asserted conclusion at [33] of his reasons, which are said to exclude conduct of an applicant in negotiating an indigenous land use agreement (ILUA) as a valid reason for convening an authorisation meeting. Jagot J dismissed this ground stating at [8]: ‘I read his Honour’s judgment in these paragraphs as focused only on the question whether the notice of the March 2016 meeting satisfied the criteria of reasonable notice of the matters to be conducted at the meeting, and a reasonable opportunity to decide whether to attend the meeting and to participate in its deliberations.’
In accepting the Commonwealth’s submissions in relation to ss 251A and 251B, her Honour stated at [11] that ‘These conclusions effectively dispose of not only proposed grounds 1 and 2 of the proposed appeal, but also grounds 3 and 4.
See 3 above.
That the primary judge erred in the reasons given for indicating that, in any event, he would not have made orders under s 66B for discretionary reasons. Her Honour found at [13]: ‘Insofar as the primary judge’s reasons are concerned, I am unable to accept that his Honour’s conclusions about the validity and integrity of the 16 April 2016 meeting were glaringly improbable or contrary to compelling inferences. In this regard, I agree with the submissions by the State of Queensland that this contention overlooks the unchallenged affidavit evidence from the second respondent about the steps which had been taken to ensure the integrity of the April 2016 meeting.’
That the primary judge took into account irrelevant considerations in respect of the exercise of discretion that his Honour indicated he would have undertaken, had he reached a different conclusion about the validity of the notice for the March 2016 meeting. Her Honour considered that the applicant’s submissions on this point did not give sufficient weight to the fundamental principle that an irrelevant consideration is one that, according to the relevant statute, a decision-maker must not take into account. Jagot J accepted the State’s submission that there is nothing in the scope, purpose or objects or provisions of the NTA which would support the contention that the matters identified by the applicant are matters which the primary judge was prohibited from taking into account in the exercise of his discretion (at [14]).
Jagot J concluded at paragraphs [17]-[18]: ‘I am convinced that this application for leave is incapable of satisfying the first limb of the requirement for leave. Considering the fact that it was more than open to his Honour to find that the April 2016 meeting was the result of a process unaffected by any deficiency, it necessarily also follows that the application for leave is incapable of establishing substantial injustice should the decision of the primary judge be assumed to be wrong. For those reasons, Jagot J made orders dismissing the amended application for leave to appeal.