case_text: than once, members of the High Court of Australia have observed that the elements of a native title claim depend upon the terms of the Act, not the common law: see The Commonwealth v Yarmirr (2001) 208 1 at [7] ( 'Yarmirr' ), Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at [16] ( 'Ward HC' ), Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [32] ( 'Yorta Yorta' ). In Yorta Yorta at [75], Gleeson CJ, Gummow and Hayne JJ said: 'Native title, for present purposes, is what is defined and described in s 223(1)' of the Act. That subsection reads as follows: '(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.' Gleeson CJ, Gummow and Hayne JJ analysed the effect of s 223 (1) in Yorta Yorta at [33] [35]. They said: ' "Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. It will be necessary to return to this characteristic. Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law. Thirdly, the rights and interests in relation to land must be "recognised" by the common law of Australia ... Three separate strands of argument about this element of the definition of native title will require consideration. First, does this element of the definition permit, even require, consideration of any aspect of the general law as it stood after the decision in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 ['Mabo'] but before the enactment of the Native Title Act ? Secondly, does this element of the definition carry within itself any rule or principle relating to extinguishment, abandonment, or loss of native title rights, by which it can be decided whether native title rights which existed at sovereignty may no longer be the subject of a determination of native title under the Native Title Act ? Thirdly, what, if anything, does this element of the definition of native title say about the significance that is to be attached to the identification of what traditional law or custom may have said, at the time sovereignty was first asserted , about the rights and interests of peoples in the land or waters in which native title is now claimed?' (Original emphasis, footnotes omitted). It is convenient to note and adopt some observations about s 223 (1) made in the final submissions by counsel for the applicants: 'In the joint judgment in Yorta Yorta , Mabo ... is cited as providing an explanation of the consequences of sovereignty upon existing indigenous rights and interests in land. The fundamental premise from which the decision in Mabo ... proceeded is that the laws and customs of the indigenous peoples of the country constituted bodies of normative rules which could give rise to and had in fact given rise to, rights and interests in relation to land or waters. The fundamental premise from which the [Act] proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs. As the definition in s.223(1) refers to traditional laws acknowledged "and" (as opposed to "or" ) traditional customs observed, there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom . The Full Court in Alyawarr has stated ... that this does not require fine distinctions to be drawn between legal rules and moral obligations. Nevertheless, there must be some kind of "rules" having a normative content, and those rules must derive from a body of norms or normative system that existed, before sovereignty. In Yorta Yorta , the High Court noted that the reference to a normative "system" of traditional laws and customs may be distracting if undue attention is given to the word "system" , particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws. Similarly, the rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts. The application of common law or Eurocentric concepts of "property" or of "normative systems" is likely to mislead: "The rights and interests under traditional laws and customs will often reflect a different conception of 'property' or 'belonging'. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener." ' (Footnotes omitted. Original emphasis. The concluding quotation comes from the judgment in Yorta Yorta of Gleeson CJ, Gummow and Hayne JJ at [40]. The full reference to Alyawarr is Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; 145 FCR 442.) As counsel for the Applicants submitted, it is difficult to separate questions about the relevant society from questions about laws and customs. The two are interdependent. Counsel referred to an important statement, in Yorta Yorta at [49], by Gleeson CJ, Gummow and Hayne JJ: 'Laws and customs do not exist in a vacuum ... Law and custom arise out of and, in important respects, go to define a particular society. In this context, "society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.' In a footnote, their Honours disclosed they had chosen the word 'society', rather than 'community', 'to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group'. Counsel for the Applicants commented: 'In this respect, the term "society" is clearly not used in its common or usual sense but nor is it used as a scientific or anthropological term of art. It is submitted that the [State's] anthropological expert, Dr Brunton, despite being instructed to adopt for the purposes of his evidence the meaning of "society" as specified in the joint judgment in Yorta Yorta ... has clearly not done so.' Counsel developed the submission about Dr Brunton's approach. I will return to it later. However, it is appropriate immediately to note the Applicants' further submission that the effect of the Yorta Yorta explanation of the meaning of 'society' is that it is sufficient 'that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a "society"'. Counsel went on: 'In Alyawarr the Full Court noted that "society" is not a word which appears in the [Act], rather it is a conceptual tool for use in its application. In particular, it does not introduce into the judgments required by the [Act] any technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as "societies". What a determination of native title requires, is a consideration of whether the persons said to be the native title holders, are members of a society or community which has existed from sovereignty to the present time, as a group, united by its acknowledgment of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty.' (footnotes omitted) Counsel also mentioned three points made in the Yorta Yorta joint judgment (at [85] and [87]): (i) evidence that, at some time since sovereignty, some of those who now assert a native title right or interest (or some of those through whom those persons claim) have not exercised those rights or interests 'does not inevitably answer the relevant statutory questions'; those questions 'are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question'; (ii) 'account must no doubt be taken of the fact that' both pars (a) and (b) of s 223(1) are cast in the present tense; the questions are 'about present possession of rights and interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant' (original emphasis); (iii) Notwithstanding point (ii), acknowledgment and observance of the laws and customs 'must have continued "substantially" uninterrupted since sovereignty'. Their Honours went on to explain, at [89], the effect of the qualification 'substantially': 'It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.' Counsel for the Applicants made the additional point that it is not necessary that the relevant rights and interests be communally enforceable. In Yarmirr at [16], Gleeson CJ, Gaudron, Gummow and Hayne JJ said: 'Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law ) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom ) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.' (Original emphasis) Counsel for the Applicants submitted: 'A right is a non-mandatory entitlement. It exists independently of its exercise and certainly independently of the existence of any present opportunity or capacity to exercise it. The existence of a right does not presuppose any power to enforce it or to have it recognised outside those who acknowledge and observe the laws and customs from which it derives.' (original emphasis) Counsel recognised that Dr Brunton did argue against that position. However, they contended Dr Brunton's argument was flawed by his insistence that there could not be a single Noongar community unless the people themselves knew of, and acknowledged, their commonalities in culture and language: see para 395 above. Counsel commented: 'In the High Court's explanation of the meaning of the term " society" in Yorta Yorta , there is no requirement that the members of the society subjectively possess a " sense of unity" or " an awareness of the existence of substantial numbers of the other [members of the society]". Similarly, there is no need to establish the existence of any "all encompassing relationships or structures" . All that is required is that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a " society" .' (footnote omitted) Counsel said that, in De Rose, both the primary judge and Full Court: 'accepted that the relevant "society" was the Western Desert Bloc, because the laws and customs that exist throughout the Western Desert "are essentially the same" . The Full Court noted that it had been estimated that the population of the Western Desert prior to European contact may have been 18,000 persons living and moving over an area of some 250,000 square miles. It would be unreal to suggest that at sovereignty, the members of that far-flung society in the Western Desert, had any subjective sense of unity or even an awareness of the existence of substantial numbers of other members of the society. (footnotes omitted) In their closing submissions, counsel for the State correctly said that the 'Applicants say that at sovereignty there was a distinct society of Aboriginal people in the south-west of Western Australia, which they describe as "Noongar". The distinguishing characteristic is said to be shared law and custom'. They went on: 'That immediately raises the question distinct from whom? Although Dr Palmer was of the opinion that there was a single Noongar society based on shared law and custom, he was unable to define the geographical extent of the Noongar society. The [Applicants] seek to distinguish Noongar s from Yamatjis to the north and Wongais to the east. However " Yamatji" and " Wongai " are clearly not precise anthropological terms. Dr Palmer explained that Wongai is a coverall term for a lot of different groups that are broadly speaking part of the Western Desert cultural bloc. They do not adjoin Noongar country, but rather between " Noongars" and " Wongais" there were other " transitory groups, if you see them as marked cultures" . In our submission, although there was frequent reference in this case to "Wongai" and " Yamatji" people and country, those are very generic labels for a number of different groups (in the same way Noongar is a generic label for groups in the south-west). There is no clear delineation between these groups.' Counsel's reference to Dr Palmer's evidence was not incorrect. However, that evidence should be read in its context. Dr Palmer explained, in answer to a question as to 'the boundary of the Single Noongar society': 'Well, I'm limited of course by the fact that I only did research within the application area, so had I done research outside perhaps I could answer that question definitively, but I am aware from other research that I've done not connected with this inquiry that and I think it's also borne out in evidence - that there appears to be an understanding that Noongar extends further east in the southern portions of the application area.' Dr Palmer said he thought all the claim area was within the territory of the single Noongar society. In their closing submissions, counsel for the State noted that 'Dr Brunton accepted that the various groups in the south-west of Western Australia may be classified as forming a cultural bloc, in the sense that they may objectively be seen as having many similar laws and customs'. However, they said, 'there is no sense in which those similarities combined to define a particular group of people or a particular area of land as being distinct from neighbouring groups'. Counsel then offered the following summary: '(a) Language: There was a group of "Noongar" languages, some of which extend east beyond the SNC # 1 claim boundary, which languages are part of a near Australia wide Pama Nyungan language family. Within that group there were in the order of 13 separate languages or dialects. Within the SNC #1 claim boundary there was also a distinctive difference in place names, which fall into two categories - the "up" and the "ing". (b) Circumcision: The eastern boundary of the alleged Noongar society is said to have been the line beyond which Aboriginal groups did not circumcise. However the location of the circumcision line is unclear, the absence of the practice of circumcision continued northwards up the western coast of Australia into the Pilbara, and it seems some "Noongar" people may have been circumcised. (c) Laws and customs in relation to land: There was similarity throughout the whole of the south-west and beyond. In the First Respondent's submission, the normative rules in relation to land in the south-west are essentially the same as those further north including the Pilbara and Kimberley. Even on the SNC Applicants' case there is said to be similarity between the south-west and the Western Desert systems to the east. (d) Moieties and kinship: There were two different moiety systems in the south-west. There is no evidence of either moiety system, nor the likely kinship system, being different from those of neighbouring groups at any particular point further north or east of the alleged Noongar society. (e) Wagyl: Belief in mythical serpents inhabiting water are common throughout Australia, and there is no evidence of a distinctive wagyl belief common to all groups in the south-west. (f) Spirits: Belief in spirits, including deceased ancestors, was not unique to the south-west. For example, other Aboriginal groups also regarded Europeans as returning ancestors; and other groups believed in mischievous small people ... The performance of propitiatory rituals is also common to other Aboriginal groups. (g) Treatment of kangaroos: Groups as far away as the Western Desert may or may not have skinned kangaroos, however there is no evidence of a boundary anywhere near the ... claim boundary beyond which skinning stopped. Some groups further east also wore kangaroo skin cloaks and this may be the result of climatic factors as much as cultural ones. (h) Clever men: Such people exist in most other Aboriginal groups outside the south-west. Indeed the word "mabarn" is also used in the north of the State. (i) Funerals: There were different funeral practices in different parts of the south-west, and no evidence that any of those funeral practices were unique to the south-west. (j) Respect for elders: Not unique to the south-west. (k) Totems: There is no evidence of any unique system of totemism in the south-west at sovereignty. (l) Use of fire: There is no evidence that the use of fire to hunt and care for country is unique to the south-west.' After referring to several of the early writers, counsel submitted that 'Dr Palmer acknowledged that small groups in the south-west could be classified as societies according to his understanding of the Yorta Yorta definition'. Dr Palmer did say that. However, it is only fair to note that he immediately added 'it wouldn't be an exclusive category ... the term could apply to smaller groups ... that comprised a larger social formation'. Dr Palmer's evidence continued: 'MR WRIGHT: So, do I understand you then to be saying that at the level of Noongar society, is that the largest level at which one could realistically classify a society in this region? DR PALMER: According to the definition that I think we've agreed upon, yes.' Counsel for the State went on to say: 'The [State] submits that Aboriginal evidence as to the precise situation at sovereignty must be treated with considerable caution in this case, because of the degree of disruption to Aboriginal culture and knowledge transmission in the south-west ... and the fact, clearly disclosed in the evidence at trial, that many Aboriginal people have had regard to early records and the writings of anthropologists. Nevertheless, we note that the [State's] submission as to the existence of a separate society in the Swan coastal plain at sovereignty is not inconsistent with the Aboriginal evidence about the Perth Metropolitan Area ... Note in particular Greg Garlett's description of the Wadjuk tribal group.' In her closing submissions, counsel for the Commonwealth identified four factors which, she claimed, 'are contrary to a finding of a single society in existence over the entire SNC claim area at sovereignty': '(i) the existence of a number of dialects (or languages) in the SNC claim area which appear to accord closely in name and geographic area with "tribes" identified by Tindale (and others); (ii) apparent differences in initiation practices; (iii) different moiety systems in the south west; and (iv) different burial practices.' Counsel did not develop her submission in relation to any of these factors. Item (i) is certainly correct. Counsel did not identify any evidence about item (ii); nor could I find any. Item (iii) apparently depends on Bates' comments. The evidence about (iv) is unclear. On the one hand, Dr Host noted the similarity in Collie's description of Mokare's burial at King George's Sound and Moore's description of a burial at Upper Swan. On the other hand, there may be a regional explanation for some apparent inconsistencies in the Aboriginal evidence about present-day burial practices. Counsel went on: 'Of particular relevance is the historical material indicating that groups referred to themselves (and others) by regional names such as Wills, Mineng, Yued etc, and asserted a territorial independence albeit that there was cooperation amongst neighbouring groups. There is no evidence that supports a broad "south west" society which could be described as a "body of people forming a community or living under the same government".' Referring to the statement, in Yorta Yorta at [49], that the word '"society" is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs', counsel for the State submitted 'it is not sufficient to simply show that certain Aboriginal people or groups of people share similar laws and customs'. Despite my invitation to them to do so, counsel did not cite any authority for that submission. The State further submitted that a 'society', for the purposes of the Act, requires not only 'shared laws and customs' but also 'other factors which demonstrate unity and organisation'. This seems to repeat the same submission. If something else is intended, by 'other factors', counsel have neither identified them nor cited any authority for their imposition on native title applicants. In Yorta Yorta , Gleeson CJ, Gummow and Hayne JJ seem to have regarded common acknowledgement and observance of a body of laws and customs as a sufficient unifying factor. Certainly, as is graphically illustrated by De Rose , it is not necessary that the 'society' constitute a community, in the sense of all its members knowing each other and living together. If that element was required, it would constitute an additional hurdle, for native title applicants, which would be almost impossible for most of them to surmount. The task of showing the existence of a common normative system some 200 years ago is difficult enough; it would be even harder to show the extent of the mutual knowledge and acknowledgment of those who then lived under that normative system, bearing in mind the non-existence of Aboriginal writings at that time. The requirement postulated by Dr Brunton, and contended for by counsel for the respondents, must be rejected. The problem now under discussion is best resolved by examining the material before the Court, especially the early writings, in order to determine whether they reveal the existence of a single normative system, operating throughout the south-west of Western Australia, and acknowledged and observed by all the people in the claim area at the time of sovereignty. The King George's Sound writers (Barker, Nind and Collie) do not help very much in relation to the existence or otherwise of a common normative system; those writers had no knowledge of Aborigines living elsewhere. The only considerations put against a finding of a single Noongar community in 1829 were those voiced by Dr Brunton - predominantly the absence of evidence that the 'strong commonalities in culture and language' were 'acknowledged by the people themselves' and made to have 'consequences in terms of social organisation, land tenure etc'. He thought the fact of the commonalities 'means nothing if the groups themselves did not see these characteristics as socially significant' (see para 261 above). As I have indicated, I think this requirement is an unwarranted addition to the test laid down in Yorta Yorta. Consequently, it would not justify me in rejecting the Applicants' position on this aspect of the case. In this section of my reasons, I have been addressing the first issue that arises in the cases before me: was there a single Noongar community in 1829? For the reasons set out above, I answer that question in the affirmative. Because of the form of the evidence that was given, it is convenient for me to consider together two questions that are logically distinct: (a) whether the community that existed in 1829 (the single Noongar community) continued to exist over subsequent years, up until recent times, with its members continuing to acknowledge and observe at least some of the traditional laws and customs relating to land that were acknowledged and observed in 1829; (b) whether that community continues to exist today, with members, including at least some of the Applicants, who continue to acknowledge and observe at least some of those laws and customs. In addressing these questions, I am conscious of the possibility that a native title claim may fail because of a discontinuity in acknowledgement and observance of traditional laws and customs, even though there has been a recent revival of interest in them and there is current acknowledgement and observance. I have in mind cases such as Yorta Yorta and the decision of Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (the 'Larrakia case'). Before upholding a native title claim, the Court must be satisfied, on the balance of probabilities, of continuity of acknowledgment and observance, by the relevant community, from the date of sovereignty until the present time. Of course, there can never be direct evidence covering such a long time. However, inferences may be drawn, from evidence led at trial, concerning the situation in earlier times: see Yorta Yorta at [80] and Gumana v Northern Territory of Australia [2005] FCA 50 at [195] [201]. In the latter case, Selway J applied the principle enunciated by Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604: 'It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.' Selway J noted (at [200]) 'that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it'. He went on: 'There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom ... This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast Yorta. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had "always" been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.' (Citations omitted) In the preceding section of these reasons, I referred only briefly to evidence given by the Aboriginal witnesses in which they identified themselves as 'Noongars' and mentioned community interaction. It is necessary to deal more fully with that evidence, in now determining whether the 1829 single Noongar community continued to exist, as such, after the date of settlement and continues to exist today. Although the result will be lengthy, I propose to summarise the evidence of each of the Aboriginal witnesses relevant to this point, they being arranged in the order in which they gave their oral evidence. I will then deal, more briefly, with the evidence relating to maintenance of customs and beliefs, in particular laws and customs concerning land and waters. (ii) Community identification and interaction (a) The Aboriginal evidence A Mr WW (named applicant, born 1946, evidence at Jurien Bay) In his witness statement, Mr WW said: 'I am a Noongar. I "enjoy" my father's country and I have lived my whole life as a Noongar. I was taught by my grandmother, Ollie, that Noongars go from up near Jurien Bay, all the way down to Albany and to Esperance. I am Noongar through my father, but I am also Yamatji through my mother. This is because of where they were born and where their families have always lived. Noongars were from the South West and Yamatji's were from up North, past Geraldton. Wongais are from Kalgoorlie way and you can tell them by their complexion, they have more grey dry skin than Noongars. When I was younger, we knew who was Noongar through our families. We knew the families of one another and we knew they were Noongar. No-one told me that I was Noongar, I just knew because of the way that we spoke to each other and other things, like hunting and fishing and camping that was all done together.' Counsel then put two submissions: (i) Dr Palmer's opinion that there is a normative system for determining rights and interests in land is not supported by the Aboriginal evidence at trial, and 'what Dr Palmer would consider to be a normative system is not a normative system of the kind require by s 223 [of the Act] and Yorta Yorta '; and (ii) 'even if there can be said to be a normative system, it is not one based on traditional law and custom'. Counsel then referred to the Aboriginal evidence, correctly noting that some witnesses claimed rights through patrilineal descent, some through matrilineal descent and some by their own choice between mother's country and father's country. They also noted cases where witnesses claimed a connection with two different areas either because of birth in one, and an ancestral connection with the other, or because of ancestral connections with both. Counsel made the point that some witnesses based a connection claim upon an ancestor some generations removed. They mentioned Richard Wilkes, Albert Corunna, Norma Jones and the Garlett brothers. Counsel criticised the evidence of three witnesses, Mr Northover, Mr Storey and Mr Davis, as 'internally inconsistent and confusing'. It is appropriate to say immediately that I do not think this criticism is justified. At paras 68 and 69 above, I noted statements in Mabo and Yorta Yorta about the effect of a change in laws and customs relating to land. Perhaps the critical point is the recognition by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta , 'that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement'. That is certainly true of the south-west, the place of earliest European settlement in Western Australia and the location of one of Australia's largest cities and most intensively farmed rural areas. Moreover, the Aboriginal people in this part of Australia have been personally affected, in a profound way, by European actions. Every one of the 30 Aboriginal witnesses has at least one white male ancestor. If a rule of patrilineal descent had been strictly applied, all these witnesses would have lost their entitlements to country. I have no reason to doubt this would have also been the position of everybody else within the Noongar community. In such a situation, it is only to be expected that members of the community would have widened the application of the exception, so as to allow a claim to country to be made through the mother, equally with the father, and even, skipping a generation, through a grandparent. Further, the evidence shows the disruption inflicted on families by their expulsion from their traditional country and, particularly, by children being taken away from their parents. It is not surprising that many people are 'mixed-up', in terms of identification with particular country. For the normative system to have survived, it was obviously necessary to allow a degree of choice of country exceeding what would have been necessary in more ordered, pre-settlement times. In assessing how much change is tolerable, before it must be said the pre-settlement normative system no longer exists, guidance is to be taken from para [89] in Yorta Yorta : '... it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty] ... not a normative system rooted in some other, different, society ... it must be shown that the society ... has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.' In other words, one should look for evidence of the continuity of the society, rather than require unchanged laws and customs. No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system is 'rooted in some other, different, society'. Whether or not that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes seem to be the outcome of factors forced upon the community from outside its ranks. The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices. I think the move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system should be regarded as not inconsistent with the maintenance of the pre-settlement community and the continued acknowledgement and observance of its laws and customs. I accept counsel's comment about inconsistency in the evidence concerning place of birth. In pre-settlement times, this was presumably never an issue; babies would usually have been born in their parents' country. However, once again, after settlement difficulties arose; people were dispersed from their traditional country. It would have been natural for the community to respond by regarding birth upon country as not essential to recognition of the person's entitlement to rights over that country; but only provided the person was prepared to commit to an association with that country by living upon it, at least for substantial periods of time, and learning about it. A principle in those terms emerges clearly from the evidence of the Aboriginal witnesses. The changes mentioned by counsel for the State, and counsel for the Commonwealth, raise important issues. There is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta , and ask myself whether the normative system revealed by the evidence is 'the normative system of the society which came under a new sovereign order' in 1829, or 'a normative system rooted in some other, different society', there can only be one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs'. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society. At para 74 above, I mentioned the State's focus on the Perth Metropolitan area; that is, the area of land and waters that is the subject of the separate question. The State's focus was supported by other respondents and, to a point, is legitimate. As I indicated at para 82, I accept the Applicants must establish a connection with the area that is the subject of the separate question; however, I believe they are not required to do so in a manner that is divorced from their asserted connection to the whole claim area. I said that, if the Applicants succeed in demonstrating the necessary connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area. I have reached the conclusion that the Applicants have succeeded in demonstrating the necessary connection between themselves and the whole claim area (excluding the off-shore islands and land and waters below low-water mark). Accordingly, in my opinion, they have established a connection with the Perth Metropolitan Area, which is part of the claim area. However, counsel for the Commonwealth submitted: 'As the subject of the separate proceeding is the existence of native title in respect of only part of the ... claim area, it follows from the ... Applicant's case that any native title in respect of the area of the separate proceeding will be held as either group or individual rights, not communal rights ie as rights deriving from a body of traditional laws and customs said to be observed by a community, but not held by all members of the community.' In Yorta Yorta at [77], Gleeson CJ, Gummow and Hayne JJ explained the requirement, in s 223(1)(c) of the Act, that any proved rights and interests be 'recognised by the common law of Australia'. They said: 'The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are "recognised" in the common law.' (Citations omitted) In the present cases, it is convenient to say immediately, no party has contended that any of the native title rights and interests asserted by the Applicants in Schedule E of their application, if established pursuant to paras (a) and (b) of s 223(1), is not recognised by the common law of Australia. None of the asserted rights and interests is 'antithetical to fundamental tenets of the common law'. All of them are identical, or similar, to rights and interests that have been recognised in earlier determinations of this Court. Accordingly, it is not necessary for me to return to s 223(1)(c) in relation to any particular rights and interests which I might find, on the evidence, to satisfy the requirements of paras (a) and (b) of s 223(1). The Applicants accept, as they must, that their asserted rights and interests do not extend to land or waters over which native title has been extinguished by a past act attributable to the Commonwealth or the State, including a grant of freehold title. Given the extent of urbanisation, and intensive farming, in the claim area (especially the Perth Metropolitan Area) a very large proportion of the claim area will be affected by this exclusion. It is nonetheless important to consider rigorously the Applicants' claim to occupation, use and enjoyment.


case_outcome: followed

case_text: than once, members of the High Court of Australia have observed that the elements of a native title claim depend upon the terms of the Act, not the common law: see The Commonwealth v Yarmirr (2001) 208 1 at [7] ( 'Yarmirr' ), Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at [16] ( 'Ward HC' ), Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [32] ( 'Yorta Yorta' ). In Yorta Yorta at [75], Gleeson CJ, Gummow and Hayne JJ said: 'Native title, for present purposes, is what is defined and described in s 223(1)' of the Act. That subsection reads as follows: '(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.'


case_outcome: applied

case_text: might be expected, having regard to these statements of principle, there are cases in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land: see Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 ( Ward FC1 , first Full Court decision) at [203] - [204], Neowarra v Western Australia [2003] FCA 1402 ( 'Neowarra' ) at [393] and Alyawarr at [69] [71]. In Alyawarr , the Full Court drew attention to the form of the declaration made in Mabo . Notwithstanding evidence that groups and individuals had particular rights and interests in relation to parts of the Murray Islands, the High Court declared 'that the Meriam people' are 'entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'.


case_text: is convenient to note and adopt some observations about s 223 (1) made in the final submissions by counsel for the applicants: 'In the joint judgment in Yorta Yorta , Mabo ... is cited as providing an explanation of the consequences of sovereignty upon existing indigenous rights and interests in land. The fundamental premise from which the decision in Mabo ... proceeded is that the laws and customs of the indigenous peoples of the country constituted bodies of normative rules which could give rise to and had in fact given rise to, rights and interests in relation to land or waters. The fundamental premise from which the [Act] proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs. As the definition in s.223(1) refers to traditional laws acknowledged "and" (as opposed to "or" ) traditional customs observed, there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom . The Full Court in Alyawarr has stated ... that this does not require fine distinctions to be drawn between legal rules and moral obligations. Nevertheless, there must be some kind of "rules" having a normative content, and those rules must derive from a body of norms or normative system that existed, before sovereignty. In Yorta Yorta , the High Court noted that the reference to a normative "system" of traditional laws and customs may be distracting if undue attention is given to the word "system" , particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws. Similarly, the rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts. The application of common law or Eurocentric concepts of "property" or of "normative systems" is likely to mislead: "The rights and interests under traditional laws and customs will often reflect a different conception of 'property' or 'belonging'. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener." ' (Footnotes omitted. Original emphasis. The concluding quotation comes from the judgment in Yorta Yorta of Gleeson CJ, Gummow and Hayne JJ at [40]. The full reference to Alyawarr is Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; 145 FCR 442.) All of the present claims are communal or group claims, as distinct from individual claims. The concepts of communal and group rights and interests are not defined or explained by the Act. However, it is legitimate to draw on what Brennan J said about such interests in Mabo : see Alyawarr at [69]. His Honour said at 62: 'A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community's lands. The recognition of the rights and interests of a sub-group or individual dependent on a communal native title is not precluded by an absence of a communal law to determine a point in contest between rival claimants. By custom, such a point may have to be settled by community consensus or in some other manner prescribed by custom.' As might be expected, having regard to these statements of principle, there are cases in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land: see Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 ( Ward FC1 , first Full Court decision) at [203] - [204], Neowarra v Western Australia [2003] FCA 1402 ( 'Neowarra' ) at [393] and Alyawarr at [69] [71]. In Alyawarr , the Full Court drew attention to the form of the declaration made in Mabo . Notwithstanding evidence that groups and individuals had particular rights and interests in relation to parts of the Murray Islands, the High Court declared 'that the Meriam people' are 'entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands'. In relation to the last matter, counsel noted something said by Brennan J in Mabo , at 61: 'Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally-based laws and customs as currently acknowledged and observed.' Counsel cited from Sundberg J in Neowarra at [310], Mansfield J in Alyawarr at first instance, [2004] FCA 472 at [156] , and Merkel J in Rubibi Community v State of Western Australia (No 6) [2006] FCA 82 at [115] ( 'Rubibi' ). This submission may be accepted. However, its limitations should be noted. In any communal native title case, it is necessary for the Court to determine whether the claimed native title extends to the whole, or any part, of the claimed area. However, it is not necessary (and it would be inappropriate) for the Court to become involved in issues as to the intracommunal distribution of special rights over portions of the total area, in relation to which native title has been established. The Court leaves it to the community to determine those issues. Alyawarr illustrates the point: see [81], [110]-[112] and paras 2 and 6 of the formal determination, which is set out at 504-505. See also Ward [FC1] at [202]. Of course, if the applicants have no communal native title rights or interests over any identifiable part of the claimed area, but only if the position is that other people have rights over parts of it, the claim will fail. WAFIC supported the position of the State and the Commonwealth. Mr McKenna said: 'It is entirely clear that a central aspect of the claim for native title is identification of a normative system (of traditional laws and customs) under which the native title rights and interests are derived and in respect of which those rights and interests are held by a community, group or individual. It is suggested that the rights that may arise from the different connections in this case give rise to different rights in different areas being held by different people. That is not necessarily a bar to all or some of those people holding all or some of the rights claimed, but it does require a more specific approach than the Applicants advocate.' At a later point in his submissions, while discussing a supposed distinction between proprietary and usufructuary rights, counsel said: 'It is not to the point that the native title rights and interests are characterised as proprietary or usufructory [sic]. The key issue, from WAFIC's perspective, is the traditional law under which those rights (whether proprietary or usufructory [sic] or both) arise and: (a) the group of persons who have those rights under traditional law and custom; and (b) the area over with [sic] the traditional laws and customs mandate the existence of such rights and interests.' Mr Wittkuhn expressed the issue in similar terms. I accept the submission of the State, which is supported by other respondents, that the Applicants must establish a connection with the area that is the subject of the separate question; that is, the land and waters included in Part A (as delineated on the map attached to the order of 21 December 2005 and the appended map 2), the Perth Metropolitan Area. However, I do not accept the submission, expressly or implicitly made by the State and other respondents, that the Applicants must demonstrate this connection in a manner that is specific to the Perth Metropolitan Area and divorced from their asserted connection to the whole claim area. The Perth Metropolitan Area is part of the claim area. If the Applicants succeed in demonstrating the necessary s 223(1) connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area. The whole includes its parts. In their written closing submissions, counsel for the Applicants sought to justify a broadly-worded determination about occupation, use and enjoyment in this way: 'The rights and interests which the Noongar people currently possess under their traditional laws and customs are the same as the rights and interests which existed at sovereignty, notwithstanding adaptations and changes to the relevant laws and customs. The Noongar people still assert and exercise those rights and interests to the extent to which they are able to do so. Within the Metropolitan Claim area, they still hunt for kangaroo in the Perth hills and for turtles in the local swamps. They continue to protect and to pass on knowledge about their sacred sites and about the Wagyl . They still "speak for" that country, principally, these days, through their involvement in site surveys and by registering and otherwise acting to protect, their sacred sites. The Noongar people have a history, well before the commencement of the [Act], of taking strong protest action to prevent development within Perth which might harm sites associated with the Wagyl. The obvious practical difficulties which stand in the way of the Noongar people exercising a right of exclusive possession, occupation, use and enjoyment in an urban and semi-urban environment, does not preclude the Court from recognising the existence of that right. ... the definition of "native title" and of "native title rights and interests" in s.223(1), is "directed to the possession of the rights or interests, not their exercise" . The following passage from the judgment of Merkel J in [Rubibi] at [117], is on point: "I have some concern as to how a right of exclusive possession and occupation can operate in any practical way in urban and other areas in common use by the general community. However, as was explained in Neowarra, the difficulty in practical enforcement of a native title right is not a proper ground for denying its existence. Further, as usage is closely linked with the issue of extinguishment I have concluded that the existence and extent of the right is to be considered in that context, rather than in the context of practicality." In this proceeding, the Court is determining the existence and the content of native title as a separate question, without regard to the issue of extinguishment.' (Citations omitted) Counsel referred to a comment of Sundberg J in Neowarra at [364]: "Because the rights and interests of Aboriginal peoples must be possessed under their traditional laws and customs, they must be looked at from the perspective of the claimants; as the anthropologists put it, from an emic as opposed to an etic perspective. Section 223(1)(c) would seem to confirm that the 'rights and interests' in par (a) are to be viewed emically, and then must pass the test posed by par (c), namely that the Aboriginally-viewed rights or interests are recognised by the common law ..." Counsel went on: 'The Aboriginal witnesses gave evidence using various terms and concepts to describe their rights and interests as derived from their laws and customs. While the witnesses did not use the common law expression " possess, occupy, use and enjoy the land to the exclusion of all others ", that is what the rights and entitlements of which they gave evidence amounts to.' Counsel cited Ward HC , where Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [88]-[89]: 'It may be accepted that, ... "a core concept of traditional law and custom [is] the right to be asked permission and to "speak for country". It is the rights under traditional law and custom to be asked permission and to "speak for country" that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing. The expression "possession, occupation, use and enjoyment ... to the exclusion of all others" is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of "possession" of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify how rights and interests possessed under traditional law and custom can properly find expression in common law terms.' Paragraph (e) asserts a right to control access and use of the lands and waters by all Aboriginal people, not only Noongars. However, the evidence justifies only recognition of a right concerning Aboriginal people who seek access to, or use of, the claim area in accordance with traditional law and custom. Upon that basis, the criterion is acknowledgement of the binding force of traditional law and custom. Such a criterion avoids the reproach levied in Alyawarr at [151] of being based merely upon Aboriginality. I think para (e) should be included. Paragraphs (f) and (g) are uncontroversial and amply supported by the evidence. They should be included in any determination. However, the wording needs to be tightened in such a manner as to relate these rights directly to land and waters. The concluding part of Schedule E asserts a claim of 'exclusive possession, occupation, use and enjoyment' of the following six listed types of area: (a) any areas where there has been no previous extinguishment of native title; (b) any area of natural water resources that is found not to be tidal; (c) any areas affected by category C and D past and intermediate period acts; (d) s47 Pastoral leases held by native title claimants; (e) s47A Reserves act covered by claimant applications; and/or (f) s47B Vacant Crown Land Covered by claimant applications.


case_outcome: affirmed

case_title: SZGXO v MIMA [2006] FMCA 929

case_text: The appellant in SZGXO is a citizen of the People's Republic of China. Her application for a protection visa was refused by a delegate of the Minister and on review by the Refugee Review Tribunal. An application for review to the Federal Magistrates Court was dismissed by Scarlett FM: SZGXO v Minister for Immigration & Multicultural Affairs [2006] FMCA 929. 7 At the hearing before the Tribunal the appellant in SZGXO had complained that she could not understand the interpreter and the presiding Tribunal member. However, the Tribunal found that nothing in the way the appellant answered the questions suggested that she had not understood them. Nor, except on one occasion when the interpreter misheard the appellant, did the interpreter misunderstand her. 8 Before the Federal Magistrate the appellants alleged bias on the part of the Tribunal arising from the fact that the appellant had received little formal education and because of this the Tribunal did not believe she had operated a business in China. They also alleged that the Tribunal did not comply with the Migration Act 1958 when making its decision. 9 His Honour found no evidence of bias. The Tribunal had addressed all of the appellants' claims. No particulars had been provided for the alleged failure to follow procedures required by the Act. There was no breach of s 424A. The Tribunal had referred to independent country information in relation to the obtaining of passports in China but information of this type was excluded from the operation of s 424A(1) by s 424A(3)(a). 10 In their notice of appeal to this Court the appellants relied on the following grounds: • The Tribunal failed to carry out its statutory duty according to section 424A ; • The Tribunal had bias; and • The Tribunal failed to consider the claims. In addition, in oral submissions at the hearing of the appeal, while repeating the allegation of bias, the appellant in SZGXO said that all of the evidence of her sister and herself was "kept in China" and she was not given the opportunity to provide this evidence. She also said that she was not asked to give evidence. She thought that, like procedures in China, she was only required to answer questions asked of her. 11 In my opinion, the conclusion of the Federal Magistrate was correct for the reasons his Honour gave. There was no breach of s 424A. As to the complaint of bias in relation to the appellant's education, the following passage from the Tribunal's reasons is relevant: "I do not accept that the applicant operated a business in China. I consider that the applicant's evidence in relation to this issue was particularly unpersuasive. I would not necessarily expect a person operating a business to have a very sophisticated understanding of business practices, particularly when the person concerned lacked a formal education. However, in my view, even a business person without a formal education would be able to provide details of matters such as the overheads involved in operating the business, which the applicant appeared unable to do. I am of the view that this would be the case even if the business concerned was a small business. Even allowing for the applicant's lack of education and sophistication I am of the view that her account of running a business was not persuasive." 12 Clearly the Tribunal was not saying that because the appellant lacked formal education, therefore it did not accept that she was running a business. Rather, it took into account in her favour the fact that she lacked a formal education. Nevertheless, the Tribunal drew a conclusion that the appellant's lack of understanding of the alleged business suggested that there was in fact no such business. 13 The way the Tribunal dealt with this issue would not suggest to a fair minded observer that the Tribunal was approaching the matter with some preconceived ideas adverse to the appellants. Still less does it show evidence of actual bias against the appellants. The complaints about evidence being kept in China do not seem to have been put to the Magistrate or the Tribunal. No error on the part of the Magistrate is demonstrated. 14 Finally I should say that in my opinion the appellants' claims, even if true, would not make out a Convention ground for persecution. In her initial protection visa application the appellant in SZGXO said that the officials who arrested and detained her and her sister "did that for political purposes, they worry that if we disclosed all these (sic) to the public that would be a big problem for their political career. Therefore we became their political enemy." 15 I agree with the view of the delegate, Ms Gillian Craven, that this would amount to no more than self-interest on the officials' part, a desire for revenge and/or an attempt to reinstate their system of extortion and/or to protect themselves against future accusations. 16 In my view, the political opinion of which the Convention speaks must be the opinion, actual or imputed, of the asylum seeker. This opinion must relate to matters which can be characterised as political, that is to say, matters which concern how a country is or ought to be governed. The appellants' claims do not show that they had, or were believed to have, any such opinion.


case_title: SZGXZ v MIMA [2006] FMCA 928

case_text: The appellant's sister submitted her own application for a protection visa which was refused both before the Tribunal and on appeal before the Federal Magistrates Court: SZGXZ v Minister for Immigration & Multicultural Affiairs [2006] FMCA 928. The appellant's sister's appeal raises the same claims and grounds and was heard at the same time. 3 In essence, the claim as presented to the Tribunal centred on the appellant and her sister's complaints regarding extortion by police and officials in connection with a clothing shop which they owned. They claim that the police closed down the shop and they were both arrested and imprisoned for two weeks during which time they were physically and mentally mistreated. 4 The appellants also claim that they were only released when the SZGXO appellant's husband paid a large bribe. The appellants complained to higher level officials regarding their treatment, but instead of re-opening their shop the officials searched the appellants' home and threatened to punish them more severely.


case_outcome: cited

case_text: This approach has been approved by the Full Court: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211 ; Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (No 2) [2003] FCAFC 163 ; and in Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11].


case_outcome: referred to

case_text: On 13 October 2008 I made final orders, except as to costs, which gave effect to reasons for judgment dated 12 September 2008: Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393. There was divided success in the proceedings. 2 These reasons concern the question of costs, as to which it was agreed that the Court should resolve this upon written submissions without the need for a further appearance.


case_text: It has been recognised that ordering costs on an "issues" basis can lead to difficulties in assessment: Spotwire Pty Ltd v Visa International Service Association [2004] FCA 1481 at [13] . Indeed the Court is reluctant generally to proceed on this basis: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1568 at [40] .


case_text: In Hughes v Western Australian Cricket Association (Inc) [1986] FCA 511 ; (1986) 8 ATPR |P40-748 at 48,136, Toohey J said the following upon the question of the apportionment of costs in circumstances such as the present: (a) ordinarily, costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order; (b) where a litigant has succeeded only on a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which it has failed; (c) a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs. "Issue" in that sense, does not mean a precise issue in the technical pleading sense, but any disputed question of fact or law. (citations omitted)


case_outcome: discussed

case_text: Imtrade submits that costs should follow the event. The "event" it says can be considered as the commercial result, so that a successful litigant may recover all its costs where the objective sought by the litigation is achieved, even though the litigant does not succeed on every issue in the litigation: O'Keefe Nominees Pty Ltd v BP Australia Ltd, Trade Practices Commission (Intervener) [1995] FCA 1079 ; (1991) 128 ALR 718 per Spender J at 720, citing New South Wales Dairy Corporation v Murray-Goulburn Co-operative Co Ltd (1989) 14 IPR 75.


case_title: O'Keefe Nominees Pty Ltd v BP Australia Ltd, Trade Practices Commission (Intervener) [1995] FCA 1079 ; (1991) 128 ALR 718


case_title: Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1987) 17 FCR 211


case_title: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229


case_title: Spotwire Pty Ltd v Visa International Service Association [2004] FCA 1481


case_outcome: approved

case_text: However, in the course of argument, counsel for the plaintiffs made it clear that the form of direction sought was based upon, and confined to, a direction of the kind made by Austin J in Re One.Tel Networks Holdings Pty Ltd (2001) 40 ACSR 83 (' One.Tel '), and/or by Hodgson J in Re Vartex Petroleum Industries Pty Ltd (Unreported, Supreme Court of New South Wales, Hodgson J, 17 August 1989) (' Vartex' ). It was accepted by counsel for the plaintiffs that the revised form of direction would be appropriate in the circumstances and the defendants did not oppose a direction expressed in those more limited terms. 23 Similar views have been expressed in other cases. In One.Tel , Austin J said that there is some doubt as to whether directions of a court given under a section of this kind can bind anyone, even a party to the application, citing Best & Less : at 93 [37]. In Vartex , Hodgson J was less equivocal, stating that a direction would not bind a director of the company who was represented before the court. 26 In One.Tel, Austin J made a similar observation, at 98 [65]: 'In these circumstances, it seems to me that a direction in terms of [the proposed direction] is justified. I hesitate to use the word "declare", which suggests a binding declaration of right rather than a direction having the more limited significance that I have described. I note that the word "declare" is used in some of the cases, no doubt in a special sense, but I have decided it would be better to use the word "direct", which is sanctioned by s 424 itself. While Hodgson J in Vartex Petroleum indicated a willingness to direct that the proposed sale was not "improper" by virtue of the mere fact that it was from a receiver to the mortgagee, I would prefer not to use the word "improper", which might suggest a conclusion with respect to the factual circumstances of the sale and the bona fides of the plaintiff.' 27 Other limits on the court's power to give directions under s 424 have been discussed in the authorities. In particular, the authorities make it clear that it is not appropriate for the court to give directions about the commercial propriety or reasonableness of a transaction that the receiver proposes to enter into: see One.Tel at 91 [30], 92 [33] and 93 [38]; and Best & Less at 247, 249 and 250. In Franbridge Pty Ltd v Societé & Generale Finance Corporation Pty Ltd (1994) 14 ACSR 304 (' Franbridge') , Einfeld J refused to make directions to the effect that a particular transaction was not improper and, more particularly, that the receiver had acted reasonably: at 308, 309. 36 The cases make it clear, however, that it may be appropriate to make a direction to the effect that a particular transaction is not unlawful solely because the counter-party to the transaction is a company associated with the entity which appointed the receivers and managers. This is precisely what was done by Hodson J in Vartex. In that case, his Honour referred to the principle of mortgage law that a mortgagee cannot exercise a power of sale in favour of itself ('the mortgagee principle') and went on to find that the mortgagee principle does not apply so as to prevent a receiver appointed by a mortgagee from selling the mortgage property to the mortgagee who appointed him. The same approach was adopted by Austin J in One.Tel at 95-97 [51]-[60]. Moreover, in Re Actwane Pty Ltd [2002] NSWSC 572 (' Actwane' ), Austin J followed the approach in Vartex and One.Tel and made a direction that: '... notwithstanding the principle of mortgage law that the mortgagee cannot exercise a power of sale in favour of itself, it would not be unlawful for the plaintiff to... enter into an agreement with Temujin Securities Pty Ltd solely by reason of the fact that the Appointor of the Receiver and Manager under a Deed of Appointment dated 1 August 2001 is also the director and sole shareholder of Temujin Securities Pty Ltd.' 38 In the circumstances that I have described and in the light of the authorities I have discussed, I consider that it is appropriate in this case to make a direction in the revised form sought by the plaintiffs. That form closely adheres to the form of order made by Hodson J in Vartex. In my view, it is much clearer to provide that the Contract is not 'unlawful solely by reason of' the relationship between TIGA and Thorney than to use the form of words which appeared in the originating process in this case, namely 'notwithstanding the relationship between' TIGA and receivers' appointor, Thorney. I appreciate that Austin J in One.Tel used the form of words 'notwithstanding' etc, but I prefer the more direct expression 'not unlawful solely by reason of'. I also note that Austin J used the expression 'solely by reason of' in Actwane . 39 Like Austin J in One.Tel and Hodson J in Vartex , I would stress that the direction is intended to establish only that the Contract is not unlawful by reason of the relationship between TIGA and Thorney. The direction does not deal with the position of the plaintiffs under the law concerning the proper exercise of powers of sale by a receiver and manager, which depends upon considerations relating to good faith, proper procedure and fair price. I am not expressing any view about those matters; nor is it appropriate to do so in a summary procedure such as this, where a limited direction only was sought. However, I would add that nothing I have seen on the evidence before me suggests any impropriety on the part of the receivers and managers. 42 Several grounds were advanced by the defendants in support of the application. Firstly, the originating process filed by the plaintiffs sought a direction that was expressed in wider terms (the defendants say significantly wider) than the revised form ultimately obtained by the plaintiffs without opposition from the defendants. The original form of the direction concerned not only the lawfulness of entering into the Contract with TIGA, notwithstanding its relationship with Thorney, but also sought a direction that the Contract was not 'improper' 'on the facts and in the circumstances presently known to them'. The defendants submitted that the original form was suggestive that the plaintiffs were seeking a direction from the Court which went towards the commercial reasonableness of the plaintiffs' conduct, and was a direction of the kind that Austin J refused to make in One.Tel . 43 Secondly, the defendants argued that their appreciation of the wide scope of the original form of the direction was a reasonable one in view of Mr White's affidavit of 15 February 2006. Paragraph 152 of the affidavit expressed Mr White's belief that he had taken all reasonable care in selling the Lake Federation property and had performed his obligations under s 420A(1) of the Corporations Act to sell the property for market value, and that he had sufficiently tested the market so as to obtain an offer that was not less than market value. Mr White's affidavit does, to some extent at least, tend to support the defendant's view that they thought they were coming to oppose a direction which sought court approbation of the reasonableness of the receivers' conduct. Perhaps another factor relevant to the defendants' appreciation of the scope of the direction sought by the plaintiffs is the form of the special condition and definition of 'Court Approval' in the Contract. 45 In opposition to the defendants' application for costs, counsel for the plaintiffs submitted that, as a matter of substance, the direction sought by the plaintiffs was always confined within the limits indicated by the Vartex and One.Tel cases. Counsel for the plaintiffs also submitted that the lengthy affidavit by Mr White was entirely appropriate because the Court needed to have before it a full account of the transactions that had led up to the contract of sale in question. I accept the latter point that the affidavit material was entirely appropriate in supporting the discretionary order that was sought from the Court, even assuming it was always limited in the form of the direction that I have made. However, I consider that the defendants were affected in their opposition to the direction because of the wider way in which it was originally cast.


case_text: However, in the course of argument, counsel for the plaintiffs made it clear that the form of direction sought was based upon, and confined to, a direction of the kind made by Austin J in Re One.Tel Networks Holdings Pty Ltd (2001) 40 ACSR 83 (' One.Tel '), and/or by Hodgson J in Re Vartex Petroleum Industries Pty Ltd (Unreported, Supreme Court of New South Wales, Hodgson J, 17 August 1989) (' Vartex' ). It was accepted by counsel for the plaintiffs that the revised form of direction would be appropriate in the circumstances and the defendants did not oppose a direction expressed in those more limited terms. 23 Similar views have been expressed in other cases. In One.Tel , Austin J said that there is some doubt as to whether directions of a court given under a section of this kind can bind anyone, even a party to the application, citing Best & Less : at 93 [37]. In Vartex , Hodgson J was less equivocal, stating that a direction would not bind a director of the company who was represented before the court. 25 In Vartex , Hodgson J was careful to point out that the direction he proposed to make had a very limited operation. The direction in Vartex was to the effect that a particular agreement for sale would not be improper merely because the purchaser was the appointor of the receivers. His Honour said that such advice would say nothing about the possibility that the sale may be improper because of particular dealings which may or may not have occurred between the appointor and the plaintiff, or on any other grounds unconnected with the mere identity of the purchaser as the mortgagee. 36 The cases make it clear, however, that it may be appropriate to make a direction to the effect that a particular transaction is not unlawful solely because the counter-party to the transaction is a company associated with the entity which appointed the receivers and managers. This is precisely what was done by Hodson J in Vartex. In that case, his Honour referred to the principle of mortgage law that a mortgagee cannot exercise a power of sale in favour of itself ('the mortgagee principle') and went on to find that the mortgagee principle does not apply so as to prevent a receiver appointed by a mortgagee from selling the mortgage property to the mortgagee who appointed him. The same approach was adopted by Austin J in One.Tel at 95-97 [51]-[60]. Moreover, in Re Actwane Pty Ltd [2002] NSWSC 572 (' Actwane' ), Austin J followed the approach in Vartex and One.Tel and made a direction that: '... notwithstanding the principle of mortgage law that the mortgagee cannot exercise a power of sale in favour of itself, it would not be unlawful for the plaintiff to... enter into an agreement with Temujin Securities Pty Ltd solely by reason of the fact that the Appointor of the Receiver and Manager under a Deed of Appointment dated 1 August 2001 is also the director and sole shareholder of Temujin Securities Pty Ltd.' 37 In the present case, the deed of charge dated 17 October 2003 provides that the receiver and manager from appointment is the agent of the chargor, Lake Federation. As Hodson J pointed out in Vartex , the consequence of that agency is that the sale of property by the receivers and managers to a company associated with the appointor does not infringe the mortgage principle: see also Franbridge at 308 and Actwane at [13]-[15]. 38 In the circumstances that I have described and in the light of the authorities I have discussed, I consider that it is appropriate in this case to make a direction in the revised form sought by the plaintiffs. That form closely adheres to the form of order made by Hodson J in Vartex. In my view, it is much clearer to provide that the Contract is not 'unlawful solely by reason of' the relationship between TIGA and Thorney than to use the form of words which appeared in the originating process in this case, namely 'notwithstanding the relationship between' TIGA and receivers' appointor, Thorney. I appreciate that Austin J in One.Tel used the form of words 'notwithstanding' etc, but I prefer the more direct expression 'not unlawful solely by reason of'. I also note that Austin J used the expression 'solely by reason of' in Actwane . 39 Like Austin J in One.Tel and Hodson J in Vartex , I would stress that the direction is intended to establish only that the Contract is not unlawful by reason of the relationship between TIGA and Thorney. The direction does not deal with the position of the plaintiffs under the law concerning the proper exercise of powers of sale by a receiver and manager, which depends upon considerations relating to good faith, proper procedure and fair price. I am not expressing any view about those matters; nor is it appropriate to do so in a summary procedure such as this, where a limited direction only was sought. However, I would add that nothing I have seen on the evidence before me suggests any impropriety on the part of the receivers and managers. 44 Thirdly, the defendants point to Hodgson J's view in Vartex concerning the costs of an opposing director. It appears from Hodgson J's reasons for judgment that the form of direction sought in Vartex was wider than the one ultimately made and, in the result, Hodgson J ordered that the costs of the director be paid out of the funds in the hands of the receiver: see also Actwane . The defendants sought a similar order in the present case. 45 In opposition to the defendants' application for costs, counsel for the plaintiffs submitted that, as a matter of substance, the direction sought by the plaintiffs was always confined within the limits indicated by the Vartex and One.Tel cases. Counsel for the plaintiffs also submitted that the lengthy affidavit by Mr White was entirely appropriate because the Court needed to have before it a full account of the transactions that had led up to the contract of sale in question. I accept the latter point that the affidavit material was entirely appropriate in supporting the discretionary order that was sought from the Court, even assuming it was always limited in the form of the direction that I have made. However, I consider that the defendants were affected in their opposition to the direction because of the wider way in which it was originally cast. 46 The plaintiffs have not obtained the full ambit of the relief which they originally sought. In the circumstances, I propose to make an order to the same effect as the order which Hodgson J made in Vartex . I will order that the costs of the defendants of and incidental to the application be paid out of the funds in the hands of the plaintiffs in their capacity as receivers and managers of Lake Federation. 47 Pursuant to s 424 of the Corporations Act , I will make a direction in the revised form sought by the plaintiffs, that: It is not unlawful solely by reason of the relationship between TIGA (Ballarat) Pty Ltd (ACN 117 812 030) ('TIGA') and the appointor of the plaintiffs, Thorney Properties (Ballarat) Pty Ltd (ACN 106 693 725), for the plaintiffs to enter into the contract of sale dated 17 January 2006 ('Contract') between Lake Federation Pty Ltd (receivers and managers appointed) ('Lake Federation') and TIGA in respect of the property described in Sch 1 of the Contract. 48 I will also order that the defendants' costs of and incidental to the application be paid out of the funds in the hands of the plaintiffs as receivers and managers of Lake Federation. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 15 May 2006 Counsel for the Plaintiffs: S Gardiner Solicitor for the Plaintiffs: Corrs Chambers Westgarth Counsel for the Defendants: MW Gerkens Solicitor for the Defendants: FCG Legal Pty Ltd Date of Hearing: 20 April 2006 Date of Judgment: 20 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/559.html


case_text: A number of cases indicate that a direction under s 424 of the Corporations Act has the limited force I have described. In Deputy Commissioner of Taxation v Best & Less (Wollongong) Pty Ltd (1992) 7 ACSR 245 (' Best & Less' ), Lockhart J said that the extent to which directions of the court under s 424 and similar sections can bind anyone is a matter of considerable doubt: at 246. His Honour said that the court plainly cannot give directions as to the rights of persons who are not parties to the hearing of the application. Moreover, even if persons are joined as parties to the application, his Honour said that it is doubtful they can be bound in a sense that can give rise to an issue estoppel. Lockhart J added at 246 that: '[i]t would still be open for a company or person to sue a receiver and manager... for breach of duty, even if he had followed the court's instruction, although he could rely upon the giving of those directions if he seeks relief under s 1318 of the Corporations Law.' 23 Similar views have been expressed in other cases. In One.Tel , Austin J said that there is some doubt as to whether directions of a court given under a section of this kind can bind anyone, even a party to the application, citing Best & Less : at 93 [37]. In Vartex , Hodgson J was less equivocal, stating that a direction would not bind a director of the company who was represented before the court. 27 Other limits on the court's power to give directions under s 424 have been discussed in the authorities. In particular, the authorities make it clear that it is not appropriate for the court to give directions about the commercial propriety or reasonableness of a transaction that the receiver proposes to enter into: see One.Tel at 91 [30], 92 [33] and 93 [38]; and Best & Less at 247, 249 and 250. In Franbridge Pty Ltd v Societé & Generale Finance Corporation Pty Ltd (1994) 14 ACSR 304 (' Franbridge') , Einfeld J refused to make directions to the effect that a particular transaction was not improper and, more particularly, that the receiver had acted reasonably: at 308, 309. 35 The cases decided under s 424 show a distinct disinclination on the part of courts to make any direction that approves, or appears to approve, the undertaking of a commercial transaction by a receiver. Likewise, the courts have resisted the notion that they should make a direction under s 424 that a receiver has acted reasonably in the performance of his duties pursuant to s 420A. There is a good reason for this caution. Unless directions are carefully worded, they might give a false public perception that the court is placing its imprimatur upon a particular transaction: see Lockhart J in Best & Less at 249 and Franbridge , where Einfeld J said at 308: 'The court should not be asked to make orders, give directions or make declarations that would convey to the public, quite wrongly, for the reasons Lockhart and Hodgson JJ point out, that the court is giving judicial approval to the sale after due consideration in accordance with regular procedures when, however the words are hedged, in fact it is not doing that at all.'


case_text: The same view has been expressed in the context of the provision of the Corporations Act that permits directions to be given for the benefit of a liquidator of a company. In Re Ansett Australia Ltd and Mentha (2001) 39 ACSR 355 (' Re Ansett' ) at 370 [59], the Court referred approvingly to the following passage in the judgment of McLelland J in Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679-680: 'Modern Australian authority confirms the view that s 479(3) "does not enable the court to make binding orders in the nature of judgments" and that the function of a liquidator's application for directions "is to give him advice as to his proper course of action in the liquidation; it is not to determine the rights and liabilities arising from the company's transactions before the liquidation".'


case_title: Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674


case_text: Other limits on the court's power to give directions under s 424 have been discussed in the authorities. In particular, the authorities make it clear that it is not appropriate for the court to give directions about the commercial propriety or reasonableness of a transaction that the receiver proposes to enter into: see One.Tel at 91 [30], 92 [33] and 93 [38]; and Best & Less at 247, 249 and 250. In Franbridge Pty Ltd v Societé & Generale Finance Corporation Pty Ltd (1994) 14 ACSR 304 (' Franbridge') , Einfeld J refused to make directions to the effect that a particular transaction was not improper and, more particularly, that the receiver had acted reasonably: at 308, 309. 35 The cases decided under s 424 show a distinct disinclination on the part of courts to make any direction that approves, or appears to approve, the undertaking of a commercial transaction by a receiver. Likewise, the courts have resisted the notion that they should make a direction under s 424 that a receiver has acted reasonably in the performance of his duties pursuant to s 420A. There is a good reason for this caution. Unless directions are carefully worded, they might give a false public perception that the court is placing its imprimatur upon a particular transaction: see Lockhart J in Best & Less at 249 and Franbridge , where Einfeld J said at 308: 'The court should not be asked to make orders, give directions or make declarations that would convey to the public, quite wrongly, for the reasons Lockhart and Hodgson JJ point out, that the court is giving judicial approval to the sale after due consideration in accordance with regular procedures when, however the words are hedged, in fact it is not doing that at all.' 37 In the present case, the deed of charge dated 17 October 2003 provides that the receiver and manager from appointment is the agent of the chargor, Lake Federation. As Hodson J pointed out in Vartex , the consequence of that agency is that the sale of property by the receivers and managers to a company associated with the appointor does not infringe the mortgage principle: see also Franbridge at 308 and Actwane at [13]-[15].


case_text: In Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270 at 279-280, the High Court said that the powers conferred by s 447A are wide, but they are not entirely without limit. The High Court found that there is nothing on the face of s 447A(1) that suggests it should be read down; it confers power to make orders which will have effect in the future. Their Honours said that the orders contemplated by s 447A(2) go beyond a curial determination of what is the effect of existing provisions of the Part in relation to a particular company, and contemplate orders that alter how Part 5.3A is to operate in relation to a particular company under administration. 30 The power under s 447A is extremely wide. This may explain the preparedness of the Goldberg J in Re Ansett to give directions approving a particular agreement to be entered into by the administrators. In that case, Goldberg J noted that it is not the role of the court to make a commercial judgment for the liquidators or administrators or to substitute its judgment for their judgment, but then added at 371: [A]lthough courts will not pronounce upon the commercial prudence of a particular transaction, they will act in an appropriate case to protect liquidators and administrators from claims that they have acted unreasonably in entering into particular transactions. That protection will remain so long as the liquidators or administrators have made a full and fair disclosure to the court of all facts material to the subject-matter under consideration.' 31 In Re Ansett , Goldberg J give a direction under s 447A that the Court approved a particular contractual arrangement that the administrators proposed to enter into.


case_text: Another case to similar effect is Re Ansett Australia Ltd (2002) 41 ACSR 605 at 615-616 [44]-[46] and 618 [54]. In that case, Goldberg J acknowledged that the Court should not give directions as to whether or not a decision made by the administrators is a commercial decision. However, his Honour said at 616 [46]: '... where issues as to the propriety or reasonableness of the conduct undertaken, or the decision made, by an administrator is called in question, it is open to the court to give a direction which, in substance, sanctions or approves the conduct undertaken, or decision made, by the administrator.' 33 His Honour also said that in so far as it might be thought that it was implicit in his reasons for directing that the administrators may properly perform and give effect to the agreement, that was a necessary and inevitable consequence of a consideration of the propriety and reasonableness of the conduct of the administrators in entering into and seeking to perform and give effect to the agreement: at 618 [54]. 34 It therefore seems that, while ss 424 and 447A of the Corporations Act have their respective limits, the courts have been prepared to go further into the commercial arena in making directions under the wider power conferred by s 447A than they have in giving directions to receivers under s 424.


case_title: Re Actwane Pty Ltd [2002] NSWSC 572

case_text: The cases make it clear, however, that it may be appropriate to make a direction to the effect that a particular transaction is not unlawful solely because the counter-party to the transaction is a company associated with the entity which appointed the receivers and managers. This is precisely what was done by Hodson J in Vartex. In that case, his Honour referred to the principle of mortgage law that a mortgagee cannot exercise a power of sale in favour of itself ('the mortgagee principle') and went on to find that the mortgagee principle does not apply so as to prevent a receiver appointed by a mortgagee from selling the mortgage property to the mortgagee who appointed him. The same approach was adopted by Austin J in One.Tel at 95-97 [51]-[60]. Moreover, in Re Actwane Pty Ltd [2002] NSWSC 572 (' Actwane' ), Austin J followed the approach in Vartex and One.Tel and made a direction that: '... notwithstanding the principle of mortgage law that the mortgagee cannot exercise a power of sale in favour of itself, it would not be unlawful for the plaintiff to... enter into an agreement with Temujin Securities Pty Ltd solely by reason of the fact that the Appointor of the Receiver and Manager under a Deed of Appointment dated 1 August 2001 is also the director and sole shareholder of Temujin Securities Pty Ltd.'