French, Merkel and Dowsett JJ
The Court in this case considered whether it is possible to determine if an act is a future act before it is carried out. Their Honours found that where native title has been extinguished, an act cannot be a future act because it does not affect native title. This case also considered whether a failure to comply with procedural requirements will invalidate the future act.
In considering the appeal against the costs ordered at trial, the Court considered whether or not s 85A applies to the proceedings on the notice of motion, and on whether or not s 85A applied in strict terms. The Court held that jurisdiction was conferred by s 213(2) of the Native Title Act, and declined to depart from the usual rule governing the exercise of the discretion under s 43.