Allsop CJ, Marshall and Mansfield JJ
This matter was an appeal to the full bench of the Federal Court in relation to the Federal Court’s decision to dismiss an interlocutory order brought by the State of Western Australia (the State). The State had sought an order to strike out certain claims brought by Fred Ward and others on behalf of the traditional owners of the Gibson Desert Nature Reserve (the native title party). Ultimately, the Full Court revoked the leave to appeal this matter.
First instance proceedings
The native title party applied for compensation under s 61(1) of the Native Title Act 1993 (Cth) (NTA). They claimed that the reservation and vesting of Reserve 34606 were separately valid category D past acts as permitted by s 19 of the NTA (a ‘past act’ is a dealing with traditional lands, before 1 July 1993 or 1 January 1994, that is inconsistent with the ongoing enjoyment of native title rights and interests). Alternatively, the vesting of the reserve was a previous exclusive possession act (a ‘previous exclusive possession act’ is a dealing with land which can diminish, impair or extinguish native title). Specifically, the native title party claimed that the relevant acts were:
the reservation of the land as Reserve 34606, for the purpose of the conservation of fauna and flora, under s 29 of the Land Act 1933 (WA) and
the vesting of Reserve 34606 in the Western Australian Wildlife Authority on 22 April 1977 for the reserve purpose under s 33 of the Land Act 1933 (WA).
The State accepted that the compensation for the reservation of Reserve 34606 was a point that was open for contention in the matter. However, the State claimed that the compensation sought in relation to the vesting of Reserve 34606 was inconsistent with the judgment of Western Australia v Ward [2002] HCA 28 (Ward) because the native title party treated the vesting as a category D past act or alternatively as a previous exclusive possession act under the NTA. The State therefore sought to strike out those claims that were contrary to Ward. The first instance court dismissed that motion, but permitted the State leave to appeal the decision.
The Appeal
The appellant judges noted that the primary judge dismissed the State’s strike out application having regard to the following:
While there were serious impediments to a successful compensation application, because the relevant claims were inconsistent with Ward, little time would be spent on the issue
While the prospects of success in relation to the relevant claims were narrow, they were not ‘fanciful’. The primary judge suggested that the issues raised were novel because the issue had not been previously raised, but added that such issues were ‘potentially highly significant to the future administration of the Act’ and
There is an advantage in hearing the evidence relevant to those claims at the trial, rather than later (if ultimately it were found that the claims were correctly made).
The State accepted that the first instance decision involved the exercise of judicial discretion. Therefore, to succeed on the appeal, the State needed to show that the discretion miscarried in a manner shown in House v The King (1936) 55 CLR 499 at [504]-[505]. Further, as the appeal concerned a matter of practice and procedure, it was also necessary to show that the primary judgment will cause substantial injustice to the appellant per Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR at [177].
The Appellant Court noted that the State’s contention suggests that the decision in Ward was so clear that the primary judge should have exercised his discretion differently. The Appellant Court disagreed with this proposition and agreed with the primary judge in his finding that there were particular circumstances, including the application of the Act to the entitlement to compensation for the extinguishment or diminution or impairment of native title rights, upon which there was no direct authority. Accordingly, the full bench found that the primary judge did not err in the exercise of his discretion in the circumstances to dismiss the motion.
The Appellant Court noted that it would not be fanciful for the native title party to pursue the relevant claims on the ground that there is a difference between the extinguishment of native title rights and interests and their preservation and suppression if the non-extinguishment principle applies. In addition, the full bench found that there was no real injustice to the State if the claims were to proceed. The Court agreed with the primary judge that it is desirable for all evidence to be adduced at the one hearing.
Accordingly, the State’s leave to appeal granted by the primary judge was revoked.