case_title: Burton v President, &c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76


case_outcome: referred to

case_text: First, Brobo's counsel submitted in reply that, whilst a court may have inherent jurisdiction or, in this court, implied incidental power to protect its own process against an abuse, this jurisdiction did not extend to protecting the process of another court. This may state the relevant proposition of law too broadly, although, for present purposes, I accept that the implied incidental power of this court to protect misuse of its process does not extend to protecting the process of the State's Supreme Court. That is a matter for the Supreme Court. See, generally, Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279, where French J referred to this court's "implied incidental power to control its own process and to prevent misuse of it"; also Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214 at 219-220 per French J; Burton v President, &c., of the Shire of Bairnsdale [1908] HCA 57 ; (1908) 7 CLR 76 at 94-95 per Isaacs J; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 392-4; and Spautz at 519-520.


case_text: A review of a registrar's decision under s 35A of the Federal Court of Australia Act 1976 (Cth) is by way of a hearing de novo in the sense that it is a hearing at which the parties may adduce fresh evidence as of right: see Mazukov v University of Tasmania [2004] FCAFC 159 at [24] per Kiefel, Weinberg and Stone JJ and Cottrell v Wilcox [2001] FCA 866 at [8] per Sundberg, Emmett and Finkelstein JJ. Absent any limitation deriving from another source, G & J Gears is entitled to adduce additional evidence on review of the registrar's decision. Apart from the more fundamental objection to the review discussed above, this was not, however, the only difficulty that it faced with respect to the evidence that it wished to adduce on the review. There was a further limitation consequential upon s 459G. That is, the authorities establish that the recipient of a statutory demand cannot apply to have the demand set aside on a ground not raised within the 21 days allowed in s 459G: see Energy Equity Corporation Ltd v Sinedie Pty Ltd [2001] WASCA 419 at [29] per Wallwork J, with whom Steytler J and Olsson AUJ agreed. Under the regime established by the Corporations Act , the Court has no discretion to extend time: compare David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265 (" David Grant ") at 277-278 per Gummow J. Brisbane South Regional Health Authority v Taylor [1996] HCA 25 ; (1996) 186 CLR 541, which was relied on by G & J Gears, is not authority to the contrary since it concerned a relevantly different statutory scheme that expressly conferred discretion to enlarge time. Thus, even if a further extension of time had been obtained, it would not have been open to G & J Gears to rely on any claim other than its trademark infringement claim. Providing its initial affidavit satisfied s 459G(3) , it would have been open to G & J Gears to rely on evidence additional to that filed within the 21 day period to support this ground, being a ground that was raised within this period: see Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 14 ACLC 1703 at 1709 per Sundberg J, applied in Meadowfield Pty Ltd v Gold Coast Holdings Pty Ltd (in liq) [2001] WASCA 360.


case_text: Finally, Brobo's counsel submitted, and I accept, that if a litigant commences separate proceedings to restrain a winding up ( ex hypothesi , in the same court as the winding up proceeding) there will always be a question as to whether the litigant should have presented its defence to the winding up in the winding up proceeding itself: see Perpetual Plantations at 85-6 per Burley J; also David Grant at 279; and Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd [1999] VSC 435 per Byrne J. According to Brobo, there were numerous matters that indicated that G & J Gears should present its defence case in the winding up, including that the Davis affidavit was in non-specific terms and did not show that the purpose of the statutory demand was other than to achieve a winding up (see the discussion at [60] above). I accept Brobo's submission. It would appear likely that G & J Gears will have an opportunity, at the hearing of the winding up petition, to rely on the matters in opposition to the winding up that it could not put forward on its application to set aside the statutory demand. These matters would not appear to fall within the prohibition in s 459S of the Corporations Act .


case_outcome: considered

case_text: Counsel for the applicant referred to Hoffman v Chief of Army [2004] FCAFC 148 ; (2004) 137 FCR 520. In fact, the submission was based on the approach to statutory construction summarised by Gavan Duffy CJ and Dixon J in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9 ; (1932) 47 CLR 1 (at 7) as follows: 'When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'


case_outcome: applied

case_text: As to the second submission, the High Court has held that s 501(2) is a valid law with respect to aliens: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Full Court of this Court held, after it had identified the relevant considerations to the exercise of the power in s 501(2), that the section did not infringe or contravene Chapter III of the Constitution . I will not repeat what I said in Pull at [35]-[37]. 38 The other aspect of the applicant's third submission is his assertion made in his written submissions that the Tribunal member failed to give proper and genuine consideration to the relevant consideration of the expectations of the Australian community. There is no doubt that that is a relevant consideration: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (supra); Direction No 21. 39 Paragraph 2.12 of Direction No 21 provides as follows: 'Expectations of the Australian community 2.12 The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision-makers should have due regard to the Government's view in this respect.' 40 The approach of the Tribunal member was to note that the applicant had accumulated an extensive criminal record in a relatively short time. He referred to the arguments put on the applicant's behalf to the effect that the Tribunal should take a broader view of community expectations. It was put to him that if a person had been in Australia for almost 10 years, the community would expect that he would not be 'dumped' on another country and he should be regarded as Australia's problem. It was put to the Tribunal member that the applicant had been punished by imprisonment and should not be further punished by deportation, and even if he were, the visa cancellation process should be completed while he was still in prison. It was put to the Tribunal member that the community would also expect that the applicant would be rewarded for his attempts at rehabilitation and for a reasonable work history before he was sent to prison. It was put to the Tribunal member that evidence of the applicant's personal circumstances was also relevant to any assessment of expectations. The Tribunal member said: 'In part the broader interpretation advocated depends on shifting factors from the community protection and other considerations categories into the process of evaluating community expectations. While the categories laid down in Direction No 21 cannot be regarded as rigid or inflexible, the approach laid down by the Direction is prima facie the one that the Tribunal should follow.'


case_title: Hoffman v Chief of Army [2004] FCAFC 148 ; (2004) 137 FCR 520


case_text: An error of fact is not a jurisdictional error if there was some evidence upon which the finding of fact could be made. An error of fact might, depending on its nature, indicate that the decision-maker did not give proper and genuine consideration to a matter he or she was bound to consider. That would be a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24. If there is error here, it is not of that nature. The Tribunal member clearly considered and considered thoroughly the best interests of the child and the applicant's relationship with his parents. The finding that his parents had not seen him since his release in early 2005 may or may not be an error, but if it is it is an error of fact. Taking into account the applicant's stay with his family in 2005 might lead one to qualify the finding that if in New Zealand the applicant could still maintain the sort of contact with his family that he had had in the past but, even if it did, that would amount to no more than an error of fact. 37 I reject the applicant's submission that there was a jurisdictional error because the Tribunal member failed to take into account the applicant's three-month stay with his family in 2005.


case_title: Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165


case_outcome: followed

case_text: The applicant's first submission must be rejected. The High Court considered a similar submission in the recent case of Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 81 ALJR 1 (' Nystrom '). That was a case unlike the present because the visa holder in that case was not liable to deportation under s 200 of the Act. However, the observations of the Court do not turn on that fact. Heydon and Crennan JJ said (at [162]-[169]) (footnotes omitted): 'Mr Nystrom's argument that the power to deport and the power to cancel a visa, which will result in removal, deal with the same subject matter is wrong. The power under s 200, as restricted by s 201, to deport non-citizens is a power in respect of the continuing presence in Australia of non-citizens convicted of certain crimes. The power under s 501(2) to cancel a visa of a non-citizen on character grounds (based on a "substantial criminal record") and thereby remove that non-citizen is a much wider power, although it is also for the protection of the Australian community. The powers are distinct and cumulative. Not only do the powers have different purposes, different criteria apply for their exercise. The criteria in respect of a person's criminal record in s 201(c) and s 501(7) are not co-extensive, although there is some overlap between s 201(c) and s 501(7)(a), (b) and (c). Criteria in s 501(7)(d) and (e) give s 501(2) a wider field of operation than that which is covered by s 201(c). Moreover, it was not disputed that different consequences follow when the powers are exercised. A person who is subject to a deportation order is subject to discretionary rather than mandatory detention during any challenge (ss 253(8) and (9)), but will then be deported unless the Minister revokes the order. A person who has a visa cancelled is subject to mandatory detention and removal (s 189) but may apply for a protection visa (s 501E). While the powers are different, with different criteria for their exercise and different consequences when exercised, they are both special powers. The power in s 501(2), construed as it must be, together with ss 501(6) and (7), is not a vague or general power. The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia , upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers. In fact, they are consonant with each other. The provisions have a different legislative history and a different relationship to the constitutional sources of power in s 51(xix) and (xxvii) as already explained. The Act contains two separate but consonant statutory systems for deportation and removal which operate differently, although the final outcome of removal may be the same. Section 201 does not in terms, confer on an alien any "statutory protection" from removal, consequent upon the cancellation of a visa under s 501(2). Here, s 200 has no application. To that extent, the facts here raise the issue of the interaction between s 200, as restricted by s 201, and s 501(2), more squarely than the facts in Jia Legeng . This distinction provides no reason to reconsider the statement in Jia Legeng that s 501 contains a separate statutory power. In fact, the distinction is an illustration of the discrete nature of the powers in question. Further, there is nothing in the relevant legislative history, or the terms of the two provisions, which would warrant "reading down" the power in s 501(2), which rests on s 51(xix), by reference to s 201(b)(i) which, while it applies to "non-citizens", derived its language and purpose from the Act's former resting on s 51(xxvii). Accordingly, the power conferred in s 501(2) is not restricted by the operation of ss 200 and 201.' Gleeson CJ made the following observations at [2] (footnotes omitted): 'As to the issue concerning the effect, if any, upon s 501(2) of the Migration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails.' The reasoning of Gummow and Heydon JJ was to similar effect (at [60]-[70]). I applied this reasoning in the recent decision of Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20 at [31] - [33] (' Pull '). That case was also a case where the visa holder was not liable to deportation under s 200 of the Act.


case_text: The applicant seemed to submit that a decision infected by jurisdictional error was not a purported privative clause decision because it was in fact no decision at all. He referred to Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 and Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597.


case_title: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476


case_text: The applicant's first submission must be rejected. The High Court considered a similar submission in the recent case of Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 81 ALJR 1 (' Nystrom '). That was a case unlike the present because the visa holder in that case was not liable to deportation under s 200 of the Act. However, the observations of the Court do not turn on that fact. Heydon and Crennan JJ said (at [162]-[169]) (footnotes omitted): 'Mr Nystrom's argument that the power to deport and the power to cancel a visa, which will result in removal, deal with the same subject matter is wrong. The power under s 200, as restricted by s 201, to deport non-citizens is a power in respect of the continuing presence in Australia of non-citizens convicted of certain crimes. The power under s 501(2) to cancel a visa of a non-citizen on character grounds (based on a "substantial criminal record") and thereby remove that non-citizen is a much wider power, although it is also for the protection of the Australian community. The powers are distinct and cumulative. Not only do the powers have different purposes, different criteria apply for their exercise. The criteria in respect of a person's criminal record in s 201(c) and s 501(7) are not co-extensive, although there is some overlap between s 201(c) and s 501(7)(a), (b) and (c). Criteria in s 501(7)(d) and (e) give s 501(2) a wider field of operation than that which is covered by s 201(c). Moreover, it was not disputed that different consequences follow when the powers are exercised. A person who is subject to a deportation order is subject to discretionary rather than mandatory detention during any challenge (ss 253(8) and (9)), but will then be deported unless the Minister revokes the order. A person who has a visa cancelled is subject to mandatory detention and removal (s 189) but may apply for a protection visa (s 501E). While the powers are different, with different criteria for their exercise and different consequences when exercised, they are both special powers. The power in s 501(2), construed as it must be, together with ss 501(6) and (7), is not a vague or general power. The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia , upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers. In fact, they are consonant with each other. The provisions have a different legislative history and a different relationship to the constitutional sources of power in s 51(xix) and (xxvii) as already explained. The Act contains two separate but consonant statutory systems for deportation and removal which operate differently, although the final outcome of removal may be the same. Section 201 does not in terms, confer on an alien any "statutory protection" from removal, consequent upon the cancellation of a visa under s 501(2). Here, s 200 has no application. To that extent, the facts here raise the issue of the interaction between s 200, as restricted by s 201, and s 501(2), more squarely than the facts in Jia Legeng . This distinction provides no reason to reconsider the statement in Jia Legeng that s 501 contains a separate statutory power. In fact, the distinction is an illustration of the discrete nature of the powers in question. Further, there is nothing in the relevant legislative history, or the terms of the two provisions, which would warrant "reading down" the power in s 501(2), which rests on s 51(xix), by reference to s 201(b)(i) which, while it applies to "non-citizens", derived its language and purpose from the Act's former resting on s 51(xxvii). Accordingly, the power conferred in s 501(2) is not restricted by the operation of ss 200 and 201.' Gleeson CJ made the following observations at [2] (footnotes omitted): 'As to the issue concerning the effect, if any, upon s 501(2) of the Migration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails.' The reasoning of Gummow and Heydon JJ was to similar effect (at [60]-[70]). I applied this reasoning in the recent decision of Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20 at [31] - [33] (' Pull '). That case was also a case where the visa holder was not liable to deportation under s 200 of the Act. 26 As to the second submission, the High Court has held that s 501(2) is a valid law with respect to aliens: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Full Court of this Court held, after it had identified the relevant considerations to the exercise of the power in s 501(2), that the section did not infringe or contravene Chapter III of the Constitution . I will not repeat what I said in Pull at [35]-[37].


case_text: As to the second submission, the High Court has held that s 501(2) is a valid law with respect to aliens: Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 the Full Court of this Court held, after it had identified the relevant considerations to the exercise of the power in s 501(2), that the section did not infringe or contravene Chapter III of the Constitution . I will not repeat what I said in Pull at [35]-[37].


case_outcome: cited

case_text: In NAGM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 , Sackville, Allsop and Jacobson JJ said at [6] that "an order dismissing an application for want of jurisdiction is interlocutory in character, at least where the order does not necessarily finally dispose of the rights of the parties." However in two recent cases, single judges of this Court have specifically considered the nature of summary dismissal under r 13.10 and concluded that it is final in nature: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 at [29] per Graham J; MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [18] per Kenny J.


case_title: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975


case_title: MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507


case_title: Bazos v Doman [2001] NSWCA 347

case_text: No estoppel arises unless the new claim relied on was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it in that proceeding: Anshun at 602-603. However, the concept of relevance is more helpful when considering the failure to raise a defence than a failure to advance a claim: see Gibbs v Kinna at [24] and Egglishaw at [28]. Further, the mere fact that each proceeding is closely related is an insufficient basis to invoke the principle, given that it is concerned with substance and not form and technicalities: Bazos v Doman [2001] NSWCA 347 at [44] per Stein JA (with whom Priestly JA and Beazley JA agreed).


case_text: Unless the alleged unreasonableness is manifest (such as the likelihood of plainly inconsistent judgments) considerable caution should be exercised in summarily dismissing the subsequent application at an early stage of the proceeding when it may be more appropriate for the issue to be considered upon "meticulous examination [of] precisely pleaded defences": Custombuilt Homes Pty Ltd v Dowell [2005] WASCA 221 at [9] per Wheeler JA (with whom Steytler P agreed). 30 The alleged unreasonableness is not manifest. No doubt it would have been more convenient for the issues raised in the current proceeding to have been advanced in New South Wales, but that is not the question. It is not appropriate when considering the Anshun principle to say what a party could reasonably have done. The proper question is, was it unreasonable to do as that party did? In any event there is much force in the view expressed by Wheeler JA in Custombuilt Homes that one should exercise considerable caution in summarily dismissing an application before the issues are crystalised after the filing of a defence. To this one might add "and/or contentions of fact and law". A judgment dismissing the matter before the Court is interlocutory in nature. It would still be open to Kooee to advance its submissions based on the Anshun principle at the trial of the proceeding when the issues will be more clearly defined.


case_text: Before embarking on an examination of the relevant facts which are said to give rise to the operation of the Anshun principle, it is important to bear in mind the parameters of the principle guided by Anshun itself and subsequent judgments of the Full Court of this Court and various State Courts of Appeal. I now turn to those matters. I do so mindful of the fact that whether the principle applies depends on the particular circumstances involved: see Egglishaw v Australian Crime Commission (2007) 164 CLR 224 and Gibbs v Kinna (1999) 2 VR 19 at [23] per Kenny JA (with whom Phillips JA agreed). 6 No estoppel arises unless the new claim relied on was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it in that proceeding: Anshun at 602-603. However, the concept of relevance is more helpful when considering the failure to raise a defence than a failure to advance a claim: see Gibbs v Kinna at [24] and Egglishaw at [28]. Further, the mere fact that each proceeding is closely related is an insufficient basis to invoke the principle, given that it is concerned with substance and not form and technicalities: Bazos v Doman [2001] NSWCA 347 at [44] per Stein JA (with whom Priestly JA and Beazley JA agreed). 7 Other than in special circumstances, the principle applies if it was unreasonable for a claimant to have refrained from raising the new claim in the earlier proceeding: Anshun at 602; Egglishaw at [21]. The issue is not whether it would have been reasonable to advance the claim beforehand because it was possible to do so but whether it was unreasonable to defer reliance: Egglishaw at [24] and [34] and Gibbs v Kinna (per Ormiston JA) at [2]. 9 Another factor indicative of unreasonableness is whether any judgment or order made in the later proceeding would conflict with any judgment or order made in the earlier proceeding: Anshun at 604; Gibbs v Kinna at [25] and Egglishaw at [32]. Putting to one side this factor and the two factors examined in the preceding paragraphs, there still remains a question whether the failure to raise the claim in the earlier proceeding was unreasonable: Egglishaw at [37]. 10 In considering the issue of unreasonableness one must consider all the facts of the case, including the nature of the proceeding, the pleadings, the length and complexity of the foreshadowed trial and the explanation, if any, for the failure to raise the claim in the previous proceeding: Egglishaw at [33] and Gibbs v Kinna at [28].


case_title: Gibbs v Kinna (1999) 2 VR 19

case_text: Before embarking on an examination of the relevant facts which are said to give rise to the operation of the Anshun principle, it is important to bear in mind the parameters of the principle guided by Anshun itself and subsequent judgments of the Full Court of this Court and various State Courts of Appeal. I now turn to those matters. I do so mindful of the fact that whether the principle applies depends on the particular circumstances involved: see Egglishaw v Australian Crime Commission (2007) 164 CLR 224 and Gibbs v Kinna (1999) 2 VR 19 at [23] per Kenny JA (with whom Phillips JA agreed). 5 The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant's right to have the merits of a claim adjudicated and may result in a serious injustice if applied too readily. To do otherwise would be to hamper free access to the courts without careful consideration of the consequences: see Ling v Commonwealth [1996] FCA 1646 ; (1996) 68 FCR 180 at 182 per Wilcox J and Gibbs v Kinna at [33]. 6 No estoppel arises unless the new claim relied on was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it in that proceeding: Anshun at 602-603. However, the concept of relevance is more helpful when considering the failure to raise a defence than a failure to advance a claim: see Gibbs v Kinna at [24] and Egglishaw at [28]. Further, the mere fact that each proceeding is closely related is an insufficient basis to invoke the principle, given that it is concerned with substance and not form and technicalities: Bazos v Doman [2001] NSWCA 347 at [44] per Stein JA (with whom Priestly JA and Beazley JA agreed). 7 Other than in special circumstances, the principle applies if it was unreasonable for a claimant to have refrained from raising the new claim in the earlier proceeding: Anshun at 602; Egglishaw at [21]. The issue is not whether it would have been reasonable to advance the claim beforehand because it was possible to do so but whether it was unreasonable to defer reliance: Egglishaw at [24] and [34] and Gibbs v Kinna (per Ormiston JA) at [2]. 8 In considering the issue of unreasonableness, it is first necessary to determine whether the subject matter of the subsequent claim could have been raised in the earlier proceeding: Anshun at 598; Gibbs v Kinna at [23] and Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1 at [37] , per Lindgren J. Next, to invoke the principle, it must be shown that the same or substantially the same facts will arise for consideration in the new proceeding as arose in the earlier proceeding: Gibbs v Kinna at [23]. These two factors were described by Kenny JA in Gibbs v Kinna at [23] as "...necessary but not sufficient considerations for the application of the principle...". 9 Another factor indicative of unreasonableness is whether any judgment or order made in the later proceeding would conflict with any judgment or order made in the earlier proceeding: Anshun at 604; Gibbs v Kinna at [25] and Egglishaw at [32]. Putting to one side this factor and the two factors examined in the preceding paragraphs, there still remains a question whether the failure to raise the claim in the earlier proceeding was unreasonable: Egglishaw at [37]. 10 In considering the issue of unreasonableness one must consider all the facts of the case, including the nature of the proceeding, the pleadings, the length and complexity of the foreshadowed trial and the explanation, if any, for the failure to raise the claim in the previous proceeding: Egglishaw at [33] and Gibbs v Kinna at [28].


case_text: Kooee points to Primus' application for a declaration in the proceeding in this Court for a declaration that the release provisions of the Separation Deed are void and of no affect against it with respect to the matters the subject of this proceeding. Primus says that in New South Wales it relied on the release provisions to defeat an argument by Kooee that Primus had been negligent in the provision of information required under the Separation Deed. Primus says that, in this Court, it wishes to allege that the release provisions are ineffectual to protect Kooee from allegations that it misled and deceived Primus, and made misrepresentations which led to Primus entering into the Separation Deed. It relies on the principle referred to in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (New York Deli case) [1988] FCA 40 ; (1988) 39 FCR 546 at 560-561 to the effect that exclusion clauses can't operate to defeat claims made under s 52 of the Trade Practices Act . Primus contends that a ruling to that effect would not lead to a judgment inconsistent with that in New South Wales which concerned an examination of entitlements under the Separation Deed itself and not any claims based on a statutory remedy or allied contractual claims. 22 The application and statement of claim in the current proceeding came to Kooee's attention in January 2008. In a letter to Primus' solicitors dated 30 January 2008, the solicitors for Kooee said that the Federal Court proceeding came as a surprise to Kooee as it arose out of the same series of transactions that were the subject of the New South Wales case. The letter asked for the reasons why the subject matter of the "Victorian proceeding" was not raised in the "NSW proceedings". In a reply letter, dated 15 February 2008, the solicitors for Primus took issue with the suggestion that the current proceeding arose out of the same series of transactions as in the New South Wales litigation. After identifying the different nature of the two sets of proceedings, the letter said: The quantification of loss in the current proceedings will have regard to the amount of the debt recovered (and not recovered) in the NSW proceedings, but there is no question of double recovery. 23 The letter also stated, no doubt on instructions, that: Our client [Primus] was unaware of the potential availability of the causes of action which found the present proceedings at the time the NSW proceedings were instituted. Having sought and received legal advice as to its rights, our client determined to initiate the current proceedings promptly.


case_title: Ling v Commonwealth of Australia [1996] FCA 1646 ; (1996) 68 FCR 180

case_text: The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant's right to have the merits of a claim adjudicated and may result in a serious injustice if applied too readily. To do otherwise would be to hamper free access to the courts without careful consideration of the consequences: see Ling v Commonwealth [1996] FCA 1646 ; (1996) 68 FCR 180 at 182 per Wilcox J and Gibbs v Kinna at [33].


case_text: The legal principle sought to be invoked by Kooee is usually described as Anshum estoppel having its roots in Australia in the judgment of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589: see especially at 598 and 602-603, per Gibbs CJ, Mason and Aichin JJ. The question for determination in the current proceeding is whether the Anshun principle applies to require Primus' proceeding in this Court to be dismissed without adjudication of its merits. 4 Before embarking on an examination of the relevant facts which are said to give rise to the operation of the Anshun principle, it is important to bear in mind the parameters of the principle guided by Anshun itself and subsequent judgments of the Full Court of this Court and various State Courts of Appeal. I now turn to those matters. I do so mindful of the fact that whether the principle applies depends on the particular circumstances involved: see Egglishaw v Australian Crime Commission (2007) 164 CLR 224 and Gibbs v Kinna (1999) 2 VR 19 at [23] per Kenny JA (with whom Phillips JA agreed). 5 The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant's right to have the merits of a claim adjudicated and may result in a serious injustice if applied too readily. To do otherwise would be to hamper free access to the courts without careful consideration of the consequences: see Ling v Commonwealth [1996] FCA 1646 ; (1996) 68 FCR 180 at 182 per Wilcox J and Gibbs v Kinna at [33]. 6 No estoppel arises unless the new claim relied on was so relevant to the subject matter of the first proceeding that it would have been unreasonable not to rely on it in that proceeding: Anshun at 602-603. However, the concept of relevance is more helpful when considering the failure to raise a defence than a failure to advance a claim: see Gibbs v Kinna at [24] and Egglishaw at [28]. Further, the mere fact that each proceeding is closely related is an insufficient basis to invoke the principle, given that it is concerned with substance and not form and technicalities: Bazos v Doman [2001] NSWCA 347 at [44] per Stein JA (with whom Priestly JA and Beazley JA agreed). 7 Other than in special circumstances, the principle applies if it was unreasonable for a claimant to have refrained from raising the new claim in the earlier proceeding: Anshun at 602; Egglishaw at [21]. The issue is not whether it would have been reasonable to advance the claim beforehand because it was possible to do so but whether it was unreasonable to defer reliance: Egglishaw at [24] and [34] and Gibbs v Kinna (per Ormiston JA) at [2]. 8 In considering the issue of unreasonableness, it is first necessary to determine whether the subject matter of the subsequent claim could have been raised in the earlier proceeding: Anshun at 598; Gibbs v Kinna at [23] and Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1 at [37] , per Lindgren J. Next, to invoke the principle, it must be shown that the same or substantially the same facts will arise for consideration in the new proceeding as arose in the earlier proceeding: Gibbs v Kinna at [23]. These two factors were described by Kenny JA in Gibbs v Kinna at [23] as "...necessary but not sufficient considerations for the application of the principle...". 9 Another factor indicative of unreasonableness is whether any judgment or order made in the later proceeding would conflict with any judgment or order made in the earlier proceeding: Anshun at 604; Gibbs v Kinna at [25] and Egglishaw at [32]. Putting to one side this factor and the two factors examined in the preceding paragraphs, there still remains a question whether the failure to raise the claim in the earlier proceeding was unreasonable: Egglishaw at [37]. 25 The claims raised in the current proceeding were relevant to the subject of the earlier proceeding given that the same parties were agitating issues concerning the breakdown of their commercial relationship. However, the fact that the New South Wales litigation and this proceeding are closely related is insufficient to invoke the Anshun principle. The question remains whether it was unreasonable for Primus to defer reliance on its current claims. 26 Based in large part on the inadequacy of the response of Primus' solicitor when asked why he did not raise the current issues earlier, the subject matter of the current claims could have been raised in the New South Wales Supreme Court at first instance. This may have been done by way of an amendment to that proceeding; with the original New South Wales claims raised in addition or in the alternative. 30 The alleged unreasonableness is not manifest. No doubt it would have been more convenient for the issues raised in the current proceeding to have been advanced in New South Wales, but that is not the question. It is not appropriate when considering the Anshun principle to say what a party could reasonably have done. The proper question is, was it unreasonable to do as that party did? In any event there is much force in the view expressed by Wheeler JA in Custombuilt Homes that one should exercise considerable caution in summarily dismissing an application before the issues are crystalised after the filing of a defence. To this one might add "and/or contentions of fact and law". A judgment dismissing the matter before the Court is interlocutory in nature. It would still be open to Kooee to advance its submissions based on the Anshun principle at the trial of the proceeding when the issues will be more clearly defined. 31 This is not a clear case for the invocation of the Anshun principle. The critical facts will differ substantially from the essential facts which were relevant in New South Wales, where the Separation Deed was the main focus of the Court's analysis as distinct from the conduct of Kooee over a confined period. There is no risk of inconsistent judgments or orders. It was not unreasonable for Primus to refrain from advancing its current claims before the Supreme Court of New South Wales.


case_text: There is a further consideration in support of the view that Primus did not act unreasonably in not raising the issues in the current application in the New South Wales Supreme Court proceeding. That reason would defeat the current motion even if the view that the facts are not substantially the same is in error. The reason is that no judgment or order can be made in the current proceeding which will conflict with any judgment or order made in New South Wales. The judgments in New South Wales give effect to the Separation Deed by interpreting the rights of the parties under it. Any judgment in this proceeding will focus on the conduct of Kooee in the six month or so period leading up to the termination of the VSPA to examine whether Kooee engaged in conduct of the kind which caused compensable damage to Primus. As Einstein J said at [10] in Primus Telecommunications Pty Ltd v Kooee Communications Limited [2007] NSWSC 91: The VSPA received only minimal attention during the hearing. It is likely sufficient for present purposes to do no more than to set out the recitals and some detail from the schedules. 29 An examination of the entirety of those reasons gives no cause for concern of any likely embarrassment in the sense that this Court will be required to consider taking a contrary view on any issue to that taken by Einstein J or the Court of Appeal. On this ground alone the motion must be dismissed. It is not unreasonable to defer the bringing of a claim which could have been brought in an earlier proceeding if there is no likelihood of inconsistent orders or judgments. In this context the submissions of Primus on the deed of release issue referred to at [21] above are persuasive.


case_text: A finding of relevant unreasonableness is not to be made lightly. It is a severe test different from a test of severe inconvenience. The starting point should be free access to the courts: R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 per Bryson JA. 13 Primus, from 2000 until 2005, supplied telecommunications carriage services to Kooee for re-sale to customers of Kooee. Primus carried out functions in Kooee's name such as billing, revenue collection, call centre support and customer relations. A written agreement known as the Virtual Service Provider Agreement or the VSPA regulated the commercial relationship between Primus and Kooee. Amongst other things, the VSPA provided for the distribution of revenue collected by Primus between Primus and Kooee resulting from the re-sale of telecommunications services to Kooee's customers. The parties entered into the VSPA in July 2000. A "letter agreement" dated 14 April 2003 extended the operations of the VSPA until 1 August 2006. 14 During the operation of the VSPA, Primus and Kooee had a difference of opinion about the operation of the provisions of the VSPA which dealt with the distribution of income between Primus and Kooee and, in particular, the amounts owing to Kooee by Primus out of the revenue collected by Primus.


case_outcome: distinguished

case_text: Kooee also submitted that the current proceeding is an abuse of process. It based that submission on the judgment of the High Court in Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 where at 392-393 Mason CJ, Deane and Dawson JJ held that it would be an abuse of process to allow a party to litigate afresh a matter which has already been disposed of in earlier proceeding. That is because it would be manifestly unfair to do so. No such abuse of process arises here. The matter sought to be now litigated is entirely different in character to that disposed of in the earlier proceeding. The earlier litigation resolved a dispute about the meaning of the Separation Deed. This proceeding concerns a dispute about the circumstances which led to its making. 33 The Court will order as follows: 1. The respondent's motion of 3 March 2008 is dismissed. 2. The respondent pay the applicant's costs of and associated with the motion. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 10 July 2008 Counsel for the Applicant: Mr R Garratt QC with Mr D Priestley Solicitor for the Applicant: Browne & Co Counsel for the Respondent: Mr J Duncan with Mr D Sulan Solicitor for the Respondent: Aleco Vrisakis Date of Hearing: 27 May 2008 Date of Judgment: 10 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1027.html


case_text: In considering the issue of unreasonableness, it is first necessary to determine whether the subject matter of the subsequent claim could have been raised in the earlier proceeding: Anshun at 598; Gibbs v Kinna at [23] and Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ; (2004) 146 FCR 1 at [37] , per Lindgren J. Next, to invoke the principle, it must be shown that the same or substantially the same facts will arise for consideration in the new proceeding as arose in the earlier proceeding: Gibbs v Kinna at [23]. These two factors were described by Kenny JA in Gibbs v Kinna at [23] as "...necessary but not sufficient considerations for the application of the principle...".


case_outcome: discussed

case_text: The Validation of Titles and Actions Act 1994 (NT) was amended by the Validation of Titles and Actions Amendment Act 1998 (NT) (the ' Amendment Act (NT) ') to include provisions to the same effect as ss 23D and 23DA of the NTA : see now Validation Act , ss 9JA, 11. The Amendment Act ( NT ) came into force on 1 October 1998. The enactment of these provisions allows the Territory to legislate to the same effect as s 23C of the NTA in respect of previous exclusive possession acts attributable to the Territory: NTA , s 23E. 94 The Validation Act adopts the meaning of 'previous exclusive possession act' given in s 23B of the NTA , 'which meaning in so far as it relates to the Territory is set out in Schedules 1 and 2 to the [ Validation Act ]': s 3A(1). In the event of any inconsistency between the Schedules to the Validation Act and s 23B of the NTA, the latter prevails: s 3A(2). 95 Schedule 1 to the Validation Act provides that an act is a 'previous exclusive possession act' if 'it is valid (including because of Division 2 ... of Part 2 of the Commonwealth Act' ). This definition is identical to s 23B(2)(a) of the NTA, except for the addition of the bolded words. It will be seen that Schedule 1 does not refer to an act which is valid because of the operation of s 4 of the Validation Act . According to the applicants, it follows that a past act which was invalid because of the existence of native title, but was validated by s 4 of the Validation Act , is not a previous exclusive possession act. The respondents take a different view of the effect of the definition in Schedule 1 (see section 26.1.1, below) . 548 The Commonwealth recognises that if the right to protect sites is merely intended to encompass a right to control the ceremonial activities of other Aboriginal people, Attorney-General (NT) v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16 (' Ward (FC) (No 2) ') supports the proposition that the right could survive the grant of a pastoral lease. Mr Hughston formally submitted that, in this respect, Ward (FC)(No 2) was incorrectly decided. 549 Otherwise the Commonwealth appears to accept that the non-exclusive rights claimed by the applicants, if they existed as native title rights and interests, were not extinguished by the grant of the pastoral leases.


case_text: However, a Full Court of this Court has held that the transitional provisions of the NTAA 1998 do not require a claim made before the commencement of that Act to comply with the new authorisation requirements, at least in the absence of a material change in the composition of the compensation claim group: Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77, at [84], per Stone J; De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 (' De Rose (FC) (No 1) '), at [26]-[28], per curiam . The respondents do not suggest that the Application changed the compensation claim group in a manner that required the applicants to comply with s 61(1) and s 61(3) of the NTA (as amended). Nor has any suggestion been made that the applicants' attempt in final submissions to further amend the Points of Claim requires compliance with s 61(1) and s 00061(3) of the NTA. Accordingly, no issue arises concerning authorisation of the compensation claim.


case_text: Dr Perry relied on authorities that establish that a registered proprietor under the Real Property Act of an estate or interest in land acquires an indefeasible title to that estate or interest notwithstanding that the dealing pursuant to which registration was obtained was void: Breskvar v Wall [1971] HCA 70 ; (1971) 126 CLR 376 at 385-386, per Barwick CJ; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 ; (2004) 220 CLR 472, at [52], per McHugh ACJ, Hayne and Heydon JJ. Dr Perry submitted that the fact the grant of the fee simple estate or lease (in the case of CL 256) was invalid by reason of the operation of s 10(1) of the RD Act does not prevent the grantee obtaining an indefeasible title upon the estate or interest being brought under the Real Property Act , just as a person registering a forged transfer obtains an indefeasible title to the registered estate provided he or she acts without fraud: Frazer v Walker [1967] AC 589; Breskvar v Wall , at 385-386, per Barwick CJ.


case_title: Browne v Dunn (1893) 6 R 67

case_text: A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ. 301 These authorities demonstrate that, subject to the operation to the rule in Browne v Dunn, a failure to cross-examine a witness does not necessarily mean that the Court is bound to accept the evidence of that witness. Nonetheless, general observations of the kind expressed by Professor Sutton about the reliability of some of his informants cannot substitute for an evaluation of their evidence given on oath or affirmation in open court. Generally speaking, if particular features of the evidence given by indigenous (or other) witnesses have not been challenged in cross-examination, there need to be cogent reasons for rejecting that evidence. An example might be where two Aboriginal witnesses have given contradictory evidence in relation to the same issue, in which case it may be necessary to choose between the two versions. However, the question still remains as to whether the evidence adduced by the applicants is sufficient to establish the essential elements of their case. 302 The Commonwealth tendered statements from seven witnesses as follows: • Yami Lester, who gave evidence concerning, among other topics, his role as a member of ARAC in 1974-1975, including his participation during that period in site inspections and in consultations with the traditional owners of Uluru. • Kane Hardingham, who was an Environment Manager with Voyages Hotels and Resorts Pty Ltd, based at Yulara. Mr Hardingham gave evidence that in June 2001 a number of Aboriginal women showed him a site located in a pit within the boundaries of Connellan Airport. He was told that the Two Sisters sat at this site. • Colin French, a Project Manager with Geoscience Australia, who gave evidence as to whether the sites for a possible airport and town marked on drawings prepared in 1974 corresponded to the sites at which Connellan Airport and the tourist facilities were ultimately constructed. • Ian Cawood, formerly an Assistant Ranger at Ayres Rock - Mt Olga National Park, who gave evidence of his experiences in the course of his extensive involvement with the area, including his participation in the work undertaken by ARAC from 1974 to 1976. Ian Cawood first arrived at Uluru in 1960 in order to work in the family business, the Ayres Rock Chalet. He remained at Uluru until 1982. For the last 14 years of his stay Mr Cawood worked with Derek Roff as Assistant Ranger at the Ayres Rock-Mount Olga National Park. • Nicholas Browning, who worked with the Australian Presbyterian Board of Missions at Fregon and Everard Park (Mimili) for various periods from 1966-1974 and thereafter with the Department of Aboriginal Affairs in Alice Springs (1974-1981). Mr Browning gave detailed evidence of his work with ARAC and his involvement in consultations undertaken through that body in order to identify and locate Aboriginal people with interests in and around Uluru. Mr Browning knew Paddy Uluru and Reggie Uluru during his time at Fregon and Mimili. Mr Browning acquired fluency in the Yankunytjatjara, Pitjantjatjara and Luritja languages. • Ivan Cebelo, who was employed in the construction of Connellan Airport from December 1995 until December 1996. Mr Cebelo gave evidence that the registered site now known as Katartitja was excavated in 1996. Mr Cebelo also authenticated contemporary photographs of the site and the surrounding area. • Creed Lovegrove, who was Director of Welfare in the Northern Territory (1972-1974) and subsequently Director of Aboriginal Affairs (NT) (1974-1977). Mr Lovegrove gave evidence of his role in the consultations carried out under the auspices of ARAC in 1974 and 1975. Three of these witnesses, namely Messrs Lester, Browning and Cawood, were cross-examined. 303 The Commonwealth submits that the evidence of the seven witnesses who provided statements is supported by contemporary documentary evidence (such as the records of ARAC) and corroborated by a number of witnesses called on behalf of the applicants, including some senior Aboriginal people. According to the Commonwealth, the evidence establishes the following propositions: • the Commonwealth's decision to establish the Town of Yulara was made in deference to Aboriginal concerns over the presence of tourist facilities in close proximity to Uluru; • the site for the Yulara township and airstrip was decided upon following extensive consultations with local Aboriginal people and with other senior Aboriginal people from the region; • the site for the Yulara township and airstrip was agreed upon and approved by the Aboriginal people who were consulted; • particular care was taken to ensure that the site for the proposed township and airstrip did not contain any culturally sensitive areas, such as sacred sites; • at the date when Aboriginal approval was obtained for the location of the proposed township and airstrip, the Application Area did not contain any culturally sensitive areas, such as sacred sites; and • at the time Julia Munster and Kevin Murphy (both of whom were anthropologists engaged by the Central Land Council) carried out a cultural survey in 1996 of the proposed extensions to the airstrip and associated works, there were no culturally sensitive areas or sacred sites within the airport and, in particular, within the site of the proposed works.


case_title: Bulstrode v Trimble [1970] VR 840

case_text: A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ.


case_text: The Self-Government Act was enacted pursuant to s 122 of the Constitution , which empowers the Commonwealth Parliament to 'make laws for the government of any territory ...': Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51 ; (1992) 177 CLR 248, at 265-266, per Mason CJ, Dawson and McHugh JJ. The Self-Government Act came into force on 1 July 1978, as did the Self-Government Regulations. 708 Section 5 of the Self-Government Act established the Northern Territory of Australia 'as a body politic under the Crown'. Subject to the Self-Government Act , the Legislative Assembly has power with the assent of the Administrator or the Governor-General, to make laws for the peace, order and good government of the Territory: ss 6, 13. 709 Section 57(1) of the Self-Government Act gives all laws of the Territory in force on 1 July 1978: 'the same operation as they would have had if [the Self-Government] Act had not been enacted, subject to alterations or repeal by or under an enactment'.


case_text: In one of its earliest decisions, the High Court applied a longstanding rule of construction that statutes 'are not to be construed as interfering with vested interests unless that intention is manifest': Clissold v Perry [1904] HCA 12 ; (1904) 1 CLR 363, at 373, per Griffith CJ. In that case, the High Court held that a person who had a mere possessory interest in land, having entered as a trespasser, nonetheless had a statutory right to compensation upon the land being resumed. The principle stated in Clissold v Perry has subsequently been applied in many cases. As Professors Pearce and Geddes point out (S tatutory Interpretation in Australia (5 th ed, 2001), at [515]-[517]), the principle has two aspects. Legislation is presumed not to authorise the acquisition of property rights without adequate compensation; and legislation is presumed not to interfere with vested property rights.


case_text: Native title is recognised and protected in accordance with the NTA : s 10. Section 11, which was described in Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr (HC) ') , at [7], as perhaps the most important of the NTA 's protection provisions, provides that: 'native title is not able to be extinguished contrary to this Act.'


case_text: The Commonwealth cites several first instance decisions as authorities to the contrary of Ward (FC) (No 2) . Leaving aside the fact that I am bound by Ward (FC) (No 2), each of these cases is distinguishable. In Lardil Peoples v Queensland [2004] FCA 298 , Cooper J was concerned with native title rights over certain waters which rights were expressed to be good against all the world other than people exercising public rights of fishing, navigation or innocent passage, or other rights lawfully conferred by statute. Cooper J, with respect, correctly considered that a formulation in these terms amounted to an attempt to control access to and use of the land in a manner that was inconsistent with the reasoning in Ward (HC) : see at [188]. Lardil Peoples v Queensland did not involve any native title right of the kind dealt with either in para 5(e) of the determination in Ward (FC) (No 2) or in the determination made in De Rose (FC) (No 2). Similarly, the passages cited from Daniel v Western Australia [2003] FCA 666 , at [134]-[136], and Neowarra v Western Australia [2003] FCA 1402 , at [475], do not directly bear on a native title right to make decisions about the use and enjoyment of land by Aboriginal peoples bound by traditional laws and customs.


case_text: Dr Willis has given evidence as an expert anthropologist in other proceedings, including De Rose v South Australia [2002] FCA 1342 (' De Rose (FCA) '). Initially, the applicants indicated that they wished to rely on Dr Willis' report as that of an expert containing the opinions of an anthropologist with specialist knowledge of the people of the eastern Western Desert. Ultimately, however, the applicants did not persist with that approach and tendered his statement simply as an account of his own observations and experiences as an initiated Pitjantjatjara man. This approach had the necessary consequence that some opinions expressed by Dr Willis were not admitted into evidence, since he was not put forward as a person having specialised knowledge based on his training, study or experience for the purposes of s 79 of the Evidence Act .


case_title: De Rose v South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325


case_text: A number of other propositions were endorsed in Ward (HC). They were recently summarised in De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 (' De Rose (FC) (No 2) '), at [145], as follows: (the references are to paragraphs in Ward (HC) ). '(i) Native title rights and interests are properly to be seen as a bundle of rights, the separate components of which can be extinguished separately (at [76]-[77]). (ii) Where a grant of rights in land is made pursuant to statute, the question (so far as extinguishment is concerned) is whether the rights are inconsistent with native title rights and interests in respect of the land [(at [214])]. This is an objective inquiry which requires identification of and a comparison between two sets of rights, one deriving from traditional laws and customs and the other from 'the new sovereign authority that came with settlement' (at [78], [82]). Reference to the use of land is relevant only to the extent that it focuses attention upon the rights pursuant to which the land is used (at [78]). (iii) Rights held under an interest in land less than a fee simple estate, such as a lease, can be inconsistent with the continued existence of native title rights and interests and therefore can extinguish them (at [80]). (iv) There is no such thing as degrees of inconsistency of rights: "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency ... Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise " ( at [82]). (Emphasis added.) (v) Section 23G(1)(b)(i) of the NTA contemplates that a previous non-exclusive possession act, such as a pre- RD Act pastoral lease, may grant rights and interests that are inconsistent with native title rights and interests and extinguish the latter (at [192]; see, too, Wilson v Anderson, at [46]). Where that occurs, no question of suspension of native title arises. (vi) Section 23G(1)(b)(ii) of the NTA addresses the case where there is an inconsistent grant of rights which, apart from the NTA and its State [or Territory] counterpart, would not extinguish native title rights and interests. The example given is a post-1975 grant which, by operation of the RD Act , was ineffective to extinguish native title rights and interests (at [82]). (This seems to involve reading the expression "the grant of rights" in s 23G(1)(b) as including a purported grant, given that the RD Act would, apart from the NTA , presumably render the grant invalid.)' To these six propositions derived from Ward (HC) two others can usefully be added: (vii) Reference to the use of land in the context of extinguishment may distract attention from the true inquiry, namely whether rights have been created in third parties that are inconsistent with native title rights and interests. Use of land may suggest, or even demonstrate, that such rights have been created, but the basic inquiry is about inconsistency of rights, not use (at [215]). (viii) The metaphor of a 'bundle of rights' is useful in two respects: 'It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom' (at [95]). (Emphasis added.)


case_title: Dobbie v Davidson (1991) 23 NSWLR 625

case_text: The effect of the statutory exceptions to indefeasibility was that a wide range of unregistered interests in land received protection from what otherwise would be the indefeasible title conferred on the first registered proprietor of the fee simple estate, by virtue of s 69 of the Real Property Act . The following interests were protected from s 69 of the Real Property Act : the interest of any person in adverse possession of the land (or part of it); an 'omitted' easement (which expression encompasses an easement which is simply not on the register: Dobbie v Davidson (1991) 23 NSWLR 625, at 627; Williams v State Transit Authority of NSW [2004] NSWCA 179 ; (2004) 60 NSWLR 286 at [105] [109], per Mason P); the interest of a proprietor of land included in a certificate of title by wrong description; public rights of way and easements enjoyed by the public; and a short-term lease held under an unregistered instrument or agreement.


case_title: Elkington v Shell Australia Ltd (1993) 32 NSWLR 11


case_title: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553


case_text: As I have noted, prior to the 1998 amendments, the NTA did not affect an act that was valid when done and which was effective at the time it was done to extinguish or impair native title. In Mabo (No 2), the High Court recognised that in Australia native title to land survived the Crown's acquisition of sovereignty (at 69, per Brennan J). From the outset, however, the High Court accepted that native title rights and interests: 'are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown'. Mabo (No 2) at 110, per Deane and Gaudron JJ; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 (' Fejo '), at [42]-[48].


case_text: I note in passing that at the time the 1997 Explanatory Memorandum was circulated (9 March 1998), litigation was under way to challenge the apparently clear proposition that the grant of a freehold estate in land necessarily extinguished all native title rights and interests in that land. The challenge had failed in the Federal Court on 27 February 1998 ( Fejo v Northern Territory (1998) 152 ALR 477), but in early March 1998 an appeal from this decision was apparently in contemplation. Part of that appeal was ultimately removed to the High Court and the challenge was finally rejected by the High Court on 10 September 1998, shortly before the NTAA came into force. 758 The 1997 Explanatory Memorandum stated (par 5.1) that Div 2B was to be inserted in Part 2 of the NTA in order to achieve points 2 and 4 of the 10 Point Plan. Those points relevantly provided as follows: 'Point 2 Confirmation of extinguishment of native title on "exclusive" tenures States and Territories would be able to confirm that 'exclusive' tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included. ... Point 4 Native title and pastoral leases As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under [Point] 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist. All activities pursuant to, or incidental to, "primary production" would be allowed on pastoral leases...'


case_title: Frazer v Walker [1967] 1 AC 589


case_text: The operation of s 10 of the RD Act has been considered in some detail by the High Court in Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70, Mabo (No 1), the Native Title Act Case, and Ward (HC). The propositions set out below are derived from those cases. 662 1. The 'rights' referred to in s 10(1) of the RD Act are human rights, not necessarily legal rights enforceable under municipal law: Mabo (No 1) , at 217, per Brennan, Toohey and Gaudron JJ. The human rights protected by s 10(1) include those referred to in art 5 of the Convention, notably the right to own and inherit property. That right encompasses an immunity from arbitrary deprivation of property and for this purpose 'property' includes native title rights and interests: Ward (HC), at [116]. 663 In the Native Title Act Case the High Court pointed out (at 437) that s 10(1) of the RD Act , confers equality of enjoyment of the human right to own and inherit property on 'persons of a particular race'. Their Honours continued: 'The [RD Act] does not alter the characteristics of native title, but it confers on protected persons rights or immunities which, being recognised by "the tribunals and all other organs administering justice", allow protected persons security in the enjoyment of their title to property to the same extent as the holders of titles granted by the Crown are secure in the enjoyment of their titles. "Property" in the context of the human rights with which we are concerned includes land and chattels as well as interests therein. Where, under the general law, the indigenous "persons of a particular race" uniquely have a right to own or to inherit property within Australia arising from indigenous law and custom but the security of enjoyment of that property is more limited than the security enjoyed by others who have a right to own or to inherit other property, the persons of the particular race are given, by s 10(1), security in the enjoyment of their property "to the same extent" as persons generally have security in the enjoyment of their property. Security in the right to own property carries immunity from arbitrary deprivation of the property. Section 10(1) thus protects the enjoyment of traditional interests in land recognised by the common law'. (Emphasis added.) 664 2. Section 10(1) of the RD Act applies in two different situations, insofar as State laws are concerned. If a State law omits to make a right universal, for example, by failing to confer that right on a person of a particular race, s 10(1) operates to confer the right on a person of that race. In this situation, the right conferred by the RD Act (a Commonwealth law) complements the right created by the State law. Because the RD Act shows no intention to occupy the field for the purposes of s 109 of the Constitution , the provisions of the State law remain unaffected: Gerhardy v Brown, at 98; Ward (HC), at [106]. Thus if a State law provides for the extinguishment of land titles, but provides compensation only in respect of titles other than native title rights and interests, the extinguishment remains valid, but the right to compensation is extended by operation of s 10(1) of the RD Act to the native title holders: Ward (HC) at [108]. 665 The second situation is where the State imposes or authorises a discriminatory burden or prohibition, for example a law forbidding people of a particular race from enjoying a human right enjoyed by persons of another race. In this situation, as was pointed out by Mason J in Gerhardy v Brown, at 98-99: 's 10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s 10 and the prohibition contained in the State [or Territory] law'. If a State law, for example, extinguishes only native title rights and interests and leaves other titles intact, s 10(1) operates to remove the discriminatory burden of extinguishment. The reason is that the State law, to that extent, is inconsistent with s 10(1) of the RD Act and is rendered invalid by s 109 of the Constitution : Ward (HC), at [108]. 666 3. Section 10(1) of the RD Act is directed to the case where some people enjoy rights but others do not enjoy those rights, or do so to a more limited extent. Rights may be enjoyed unequally even if the laws concerned do not have a purpose that can be identified as discriminatory: Ward (HC), at [105]. It follows that s 10(1) does not require that the relevant law, or an act authorised by that law, be 'aimed at' native title rights and interests. Nor does it require the law to make an explicit distinction based on race. 667 Instead, s 10(1) of the RD Act is directed at 'the practical operation and effect' of the impugned legislation and is 'concerned not merely with matters of form but with matters of substance': Ward (HC) , at [115] citing Mabo (No 1), at 230, per Deane J and Gerhardy v Brown , at 99, per Mason J. Consequently, if a power is conferred by legislation which is non-discriminatory on its face and the power is exercised in a manner that is discriminatory as a matter of fact, s 10(1) is engaged: Ward (HC) , at [126]. 668 4. Because native title is held by members of a particular race, interference with the enjoyment of native title is capable of amounting to discrimination on the basis of race. In Ward (HC) , it was held (at [122]) that Mabo (No 1) and the Native Title Act Case should be taken as having rejected the proposition that native title can be treated differently from other forms of title simply because it has characteristics different from other property rights and derives from different sources. As was said in Ward (HC) , at [121]: 'the [RD Act] must be taken to proceed on the basis that different characteristics attaching to the ownership or inheritance of property by persons of a particular race are irrelevant to the question whether the right of person of that race to own or inherit property is a right of the same kind as the right to own or inherit property enjoyed by persons of another race. In this respect the [RD Act] operates in a manner not unlike most other anti-discrimination legislation which proceeds by reference to an unexpressed declaration that a particular characteristic is irrelevant for the purposes of that legislation.' 669 It follows that in considering whether the holders of native title do not enjoy the same rights, or enjoy them to a more limited extent, than the holders of other forms of title, s 10(1) of the RD Act does not require a comparison between the content of native title rights and interests and the content of non-native title rights to determine whether they are equivalent. The fact that native title has unique characteristics, including its vulnerability to extinguishment by legislative or executive action, is not a basis for denying the application of the RD Act to native title.


case_title: Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59 ; (2004) 220 CLR 472


case_text: Prior to 1998, the applicants in native title claims or other litigation under the NTA were not constrained by the rules of evidence. Until the NTAA 1998 substituted a new s 82 for the original version, s 82(3) provided that the Court, in conducting proceedings under the NTA, was not bound by 'technicalities, legal forms or rules of evidence'. Section 82(1) of the NTA now provides that the Court is bound by the rules of evidence, except to the extent it otherwise orders. Regrettably, as I observed in an interlocutory judgment in the present case, the applicants paid insufficient attention to the laws of evidence, especially in relation to the so-called Yulara Anthropology Report prepared by Professor Peter Sutton and Ms Petronella Vaarzon-Morel: see Jango v Northern Territory (No 2) [2004] FCA 1004 (' Jango (No 2) '), at [8]. Among other consequences, this has led to an unnecessary increase in the costs of conducting the case. 39 The validation and extinguishment regime established by the NTA , of which the compensation provisions form part, is extraordinarily complex. In this section of the judgment I outline the compensation regime, referring to the validation and extinguishment provisions only to the extent necessary to understand that regime. 40 Section 13(2) of the NTA provides that if the Court is making a determination of compensation in accordance with Div 5 of Part 2 , and an approved determination of native title has not previously been made in relation to the whole or part of the area concerned, the Court: 'must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made'.


case_text: Section 10 of the RD Act was enacted to implement art 5 of the Convention : Mabo v Queensland [1988] HCA 69 ; (1988) 166 CLR 186 (' Mabo (No 1)' ). The legislation, at least in large measure, is an exercise of the power of the Commonwealth Parliament to make laws with respect to external affairs pursuant to s 51(xxix) of the Constitution ( Koowarta v Bjelke-Petersen [1982] HCA 27 ; (1982) 153 CLR 168), although its application to the Territories is supported by s 122 of the Constitution : Ward (HC), at [129].


case_text: In 1911, the Acceptance Act came into force. The effect of the surrender of the Northern Territory by South Australia and its acceptance by the Commonwealth was to confer on the Commonwealth Parliament exclusive power to make laws for the government of the Territory: Constitution , s 122 ; Kruger v Commonwealth [1997] HCA 27 ; (1996) 190 CLR 1, at 49-50, per Dawson J; Ward (HC), at [390]. The Acceptance Act continued all laws in force in the Territory at the time of the acceptance, but provided that all such laws could be altered or repealed under any law of the Commonwealth: s 7. All estates and interests held by any person from the State of South Australia within the Northern Territory continued to be held from the Commonwealth on the same terms and conditions: s 10. 125 The Northern Territory (Administration) Act 1910 (Cth) (' Administration Act ') empowered the Governor-General to make ordinances having the force of law in the Northern Territory, although either House of Parliament could disallow an ordinance: s 13. This was essentially the position until 1947, when the Administration Act was amended to create a Legislative Council for the Northern Territory. The Legislative Council was given power to make ordinances for the peace, order and good government of the Territory, subject to the assent of the Administrator and a power of disallowance vested in the Governor-General: Administration Act , ss 4U, 4V, 4W. In 1978, the Northern Territory was established as a body politic under the Crown and the Legislative Assembly was given power to such laws for the peace, order and good government of the Territory: Self-Government Act , ss 5, 6. 126 In 1914, according to Mr Tindale, a vast area of South Australia extending north-west from the Victorian border for over 3,200 kilometres, was in a severe drought that lasted until mid-1915. However, because of local summer thundershowers, the situation in the eastern Musgrave Ranges was nearly normal. The drought forced Pitjantjatjara people to the west to shift eastward. By 1916 they had usurped the territory of some Yankunytjatjara people in the eastern Musgraves, in turn forcing them southwards: N B Tindale, Aboriginal Tribes of Australia: Their Terrain, Environmental Controls, Distribution, Limits and Proper Names (Uni of California, 1974), at 69.


case_title: Lardil Peoples v Queensland [2004] FCA 298


case_title: Mabo v Queensland [1988] HCA 69 ; (1988) 166 CLR 186


case_text: The Commonwealth points out that Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 (' Mabo (No 2) '), decided that the extinguishment of native title by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title rights and interests does not entitle the native title holders to compensation. It follows, so it is said, that any general right to compensation must be created by statute. The mere fact that native title has been extinguished does not create a right to compensation. The Commonwealth also says that an act which occurred prior to the enactment of the NTA , which at the time was both valid and effective to extinguish native title, is not affected by the NTA (although the NTA confirms the extinguishment of native title by a valid 'previous exclusive possession act'). 635 Assuming (contrary to the Commonwealth's principal submissions and my findings) that the applicants have established the existence of native title rights and interests over the Application Area at the date of the compensation acts, the Commonwealth submits that compensation is payable to them only if: • the act in question was valid, but a right to compensation was created by s 10(1) of the RD Act so as to confer upon the native title holders the same rights as the holders of other forms of title ( NTA , s 45); • the act in question was invalid by reason of the existence of native title (being a 'past act' as defined in the NTA , s 228), but was validated by the NTA or equivalent State or Territory legislation ( NTA , s 20); or • the act was a 'previous exclusive possession act' within s 23B of the NTA which extinguishes native title under Div 2B of the NTA , but only to the extent that native title rights were not extinguished otherwise than under the NTA ( NTA, s 23J). 636 The Commonwealth accepts that the grants of fee simple estates over Crown land within the Application Area do not of themselves extinguish any native title rights and interests that may have survived the grant of the nineteenth century pastoral leases. The same concession is made in relation to CL 256. The concessions are said to be dictated by reasoning in Ward (HC), based on s 10(1) of the RD Act , in relation to certain leases of Crown land in the Territory. The Commonwealth accepts that the circumstances in Ward (HC) cannot be distinguished from those of the present case. 637 Nonetheless, the Commonwealth contends that any surviving native title rights and interests over the Application Area (other than the Lasseter Highway) were extinguished before the NTA or the Validation Act came into force. This result is said to flow from the operation of the so-called indefeasibility provisions of the South Australian Torrens system statute, the Real Property Act which, as amended by Territory laws, was then in force in the Territory. According to the Commonwealth, the Real Property Act conferred an indefeasible title on each grantee which title validly extinguished any surviving native title rights and interests. There was no inconsistency with s 10(1) of the Real Property Act , so it is argued, because the Real Property Act treats unregistered native title rights and interests in the same way as other unregistered interests in land brought under the Real Property Act . I deal with this argument later (see section 24.3, below). 638 The Commonwealth submits that, in these circumstances, native title holders are not entitled to compensation for the extinguishment of their rights and interests over the Application Area. Neither s 20 nor s 23J confers any right to compensation, since the extinguishment took place independently of the NTA and the Validation Act. The Commonwealth also submits that the construction of the Public Works by the Territory validly extinguished any surviving native title rights and interests independently of the operation of the NTA or the Validation Act . Thus no entitlement to compensation arises under the NTA in respect of the extinguishment of those rights and interests.


case_text: In any claim for determination of native title, or for compensation for loss or impairment of native title rights and interests, the NTA is 'determinative': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta (HC) ') , at [32], [70]. Accordingly, even if native title was extinguished under common law rules which are taken to have applied prior to the commencement of the NTA , it is still necessary to consider the application of the statute (and its State and Territory counterparts) to any act said to have extinguished native title: Wilson v Anderson [2002] HCA 29 ; (2002) 213 CLR 401 , at [45]-[47], per Gaudron, Gummow and Hayne JJ.


case_title: Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606


case_title: Neowarra v Western Australia [2003] FCA 1402


case_text: Section 50(1) of the Self-Government Act provides that: 'The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms'. Section 50(1) is designed to impose a statutory restriction on the Legislative Assembly similar to the restriction imposed on the Commonwealth Parliament by s 51(xxxi) of the Constitution : Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38 ; (1996) 190 CLR 513, at 542-543, per Brennan J. It follows that a law passed by the Legislative Assembly which provides for the acquisition of property otherwise than on just terms will be ultra vires the Legislative Assembly. 711 Part IV of the Self-Government Act is headed: 'The Administration'. Section 31 provides as follows: 'The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory imposed or conferred by or under this Part extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities.' Section 31 must be read with s 35 of the Self-Government Act , which states that: 'The regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority.' 712 At all material times, reg 4(1) of the Self-Government Regulations has provided that, subject (relevantly) to subreg (4), the Ministers of the Territory are to have executive authority in respect of a number of matters including the following: 'Matters in respect of which duties, powers, functions or authorities are imposed or conferred by or under another Act in force in the Territory on a Minister or the Territory ... Land, public and private (including internal waters) ... Surface transport regulation (including ... roads and bridges ...) ... Public works.' Regulation 4(3) states that the inclusion of any matters in subreg (1) 'does not derogate from or affect the generality of any other matter specified in that subregulation'. 750 As I have noted, prior to the 1998 amendments, the NTA did not affect an act that was valid when done and which was effective at the time it was done to extinguish or impair native title. In Mabo (No 2), the High Court recognised that in Australia native title to land survived the Crown's acquisition of sovereignty (at 69, per Brennan J). From the outset, however, the High Court accepted that native title rights and interests: 'are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown'. Mabo (No 2) at 110, per Deane and Gaudron JJ; Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 (' Fejo '), at [42]-[48].


case_text: The preamble to the NTA contains what a Full Court of this Court has recently described as the 'moral foundation' on which the legislation rests: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Group [2005] FCAFC 135 ; (2005) 145 FCR 442 (' Alyawarr Case '), at [63]. The preamble recites the factors that led Parliament to enact the NTA . These include the following: • the Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement; • they have been progressively dispossessed of their lands, largely without compensation; and • as a consequence, they have become, as a group, the most disadvantaged in Australian society. 30 The intention of the people of Australia is said to be: '(a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.' 31 The Court in the Alyawarr Case observed (at [63]) that the legislative intention to recognise, protect and support native title stands despite the inclusion in the NTA of substantive provisions which are adverse to native title rights and interests and indeed provide for their extinguishment and for the validation of past acts. The competing policies are reflected in the objects of the NTA, stated in s 3 as follows: 'The main objects of this Act are: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and (c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts ... invalidated because of the existence of native title.' 561 In the Alyawarr Case , decided after argument in the present case had concluded, a Full Court considered the extinguishing effect of pastoral leases that had been granted over the claim area, a large tract of land near Tennant Creek in the Northern Territory. Most of the leases contained reservations in favour of Aboriginal people in terms similar to those contained in PL 456 and PL 1804 in the present case. None of the pastoral leases remained in force at the time the Alyawarr proceedings were commenced. 562 The following was common ground before the Full Court in the Alyawarr Case : • The pastoral leases were previous non-exclusive possession acts attributable to the Territory (at [123]). • The right to exclude all others from the claim area was extinguished by the grant of pastoral leases conferring rights inconsistent with the native title right to control access (at [42]). • The applicants retained the rights to hunt, fish and gather on the land, to use the resources of the land (such as food, plants, trees, charcoal, ochre and stone) and to have access to and the use of water on the land (at [121]). 563 The Full Court held that the following rights of the applicants had not been extinguished by the grant of the pastoral leases: • To live on the land, to camp, to erect shelters and other structures and to travel over and visit any part of the land and waters (at [133]). The Court rejected the Territory's contention that a native title right of permanent settlement was inconsistent with the rights of a pastoral lease holder (at [131]). • To engage in cultural activities, conduct ceremonies and participate in cultural practices on the land. The Court held that this right included the right to teach people on the land about the physical and spiritual attributes of places and areas of importance (at [135]). • To have access to, maintain and protect places and areas of importance on or in the land (at [138], [140]). The Court held that the word 'protect' was appropriate, since it did not imply that the applicants were entitled to exclude others entirely from the relevant places and areas (at [139]-[140]). • To share or exchange subsistence and other traditional resources obtained on or from the land. The Court rejected the applicants' contention that they had a right to trade in the resources of the land, on the ground that the evidence fell short of establishing the existence of any such traditional right (at [157]).


case_title: Paulette v The Queen [1977] 2 SCR 628

case_text: Callinan J acknowledged that there were Canadian authorities to the effect that caveats could not be lodged to protect Aboriginal title under the Torrens system. However, the decision of the Supreme Court of Canada in Paulette v The Queen [1977] 2 SCR 628, turned on the fact that the land had never been granted by the Crown and was not the subject of any registered title (see Paulette v The Queen, at 630). The decision therefore said nothing about whether native title rights and interests could be protected by caveat after a Crown grant had issued in respect of the land. His Honour considered that other Canadian decisions turned on the particular provisions of the Torrens statutes in force: see Uukw v British Columbia (1987) 37 DLR (4 th ) 408, followed in Skeetschestn Indian Band v British Columbia (Registrar of Land Titles) [2001] 1 CNLR 310 (both decisions of the British Columbia Court of Appeal).


case_text: A failure to cross-examine a witness on contentious issues may have at least two consequences: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at 587, per Samuels JA (with whom Meagher JA agreed). First, the so-called rule in Browne v Dunn (1893) 6 R 67, which reflects a principle of procedural fairness, may prevent the cross-examining party asking the court not to accept the evidence of the witness on that particular issue: J D Heydon, Cross on Evidence (6 th Aust ed, 2000), at [17460]. Secondly, the failure to cross-examine may provide a cogent reason for accepting the witness's evidence, particularly if it is not contradicted: Precision Plastics Pty Ltd v Demir [1975] HCA 27 ; (1975) 132 CLR 362, at 371. However, there is no rule that evidence which is unchallenged in cross-examination must be accepted by the trier of fact, especially if it appears to be inherently incredible or is contradicted by other credible evidence: Bulstrode v Trimble [1970] VR 840, at 849, per Newton J; Ellis v Wallsend District Hospital , at 586-588, per Samuels JA; Elkington v Shell Australia Ltd (1993) 32 NSWLR 11, at 17, per Kirby ACJ.