In this case, the Full Court of the Federal Court considered an appeal of a native title determination made in favour of the state in the Federal Court. The determination was in relation to four parcels of land in Northern New South Wales, and whether the separate question procedure employed by the parties in the primary judgement was appropriate in these proceedings. The court ultimately dismissed the appeal, while setting aside the answers to four of the five separate questions.
Separate Question (3)
On 17 June 2020, after dismissing the appellant’s appeal and ordering that the primary judge’s answers to separate questions (1), (2), (4) and (5) should be set aside, the Court also ordered that the parties file submissions on the question of whether the order made on 30 July 2019 answering separate question (3) should also be set aside.
Submissions
In its submissions on this appeal, the first respondent (the State) foreshadowed that, should it be determined in the manner described above, it wished to make an application for an extension of time to file a cross-appeal with relation to question 3 concerning Area 74 so that it may be dealt with in the same manner as the questions with respect to the four Areas the subject of the present appeal. The State contended that, since the same issues arose with respect to all five areas, it would be anomalous to allow the answer to question (3) to stand when it was as much a part of the separate question procedure that led to the answers to the other four questions being set aside.
Decision
The Court agreed with the State’s contentions, ordering that separate question (3) be set aside, and granting the State’s application for an extension of time to file its cross appeal.