District Council of Streaky Bay v Wilson

• Jurisdiction: Australia Federal only
• Judgment Date: 18 October 2021
• Neutral Citation: [2021] FCAFC 181
• Date: 18 October 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

District Council of Streaky Bay v Wilson [2021] FCAFC 181

Appeal from:	[2020] FCA 1805
File number:	SAD 5 of 2021
Judgment of:	MORTIMER, PERRY AND SC DERRINGTON JJ
Date of judgment:	18 October 2021
Catchwords:	NATIVE TITLE – appeal from determination of native title – whether the construction of public works in the nature of major earthworks – whether construction in time or by validation sufficient to extinguish native title in relevant parts of the land – in the alternative whether a lease had been granted which constituted a previous exclusive possession act which extinguished native title in the land ; PRACTICE AND PROCEDURE – whether Court could receive fresh evidence on appeal – whether new evidence would have led to a different result at trial – whether appellant exercised reasonable diligence to be made aware of evidence before trial – futher, where leave sought to raise new ground on appeal – where question live at trial – whether inadvertence can explain a failure at trial to nominate the correct provision
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24(1A), 27 Federal Court Rules 2011 (Cth) Pts 20, 24, r 36.57 Native Title Act 1993 (Cth) ss 23B(2), 23B(7), 24IB, 24ID, 24JB(2), 85A, 87A, 229(4), 232A, 242, 249A, 251D, 253 Native Title Amendment Act 1998 (Cth) Sch 5 Associations Incorporations Act 1956-1965 (SA) Law of Property Act 1936 (SA) ss 28, 29(1) Local Government Act 1934 (SA) s 666C Native Title (South Australia) Act 1994 (SA) ss 31(2), 32, 34, 36F, 36G Real Property Act 1886 (SA) ss 41, 166
Cases cited:	Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; 207 ALR 539 Anderson v Wilson [2000] FCA 394; 97 FCR 453 Banjima People v Western Australia (No 2) [2013] FCA 868; 305 ALR 1 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Bodney v Bennell [2008] FCAFC 63; 167 FCR 84 Canale v GW and R Mould Pty Ltd [2018] VSCA 346 Commonwealth v Baume [1905] HCA 11; 2 CLR 405 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Daniel on behalf of Ngarluma People v Western Australia [2004] FCA 1388; 212 ALR 51 Living and Leisure Australia Ltd v Commissioner of State Revenue [2018] VSCA 237; 108 ATR 736 Margarula v Northern Territory [2016] FCA 1018; 257 FCR 226 N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd [2014] FCA 288; 220 FCR 166 Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 Neowarra v State of Western Australia [2003] FCA 1402 at [659] Northern Land Council v Quall (No 3) [2021] FCAFC 2 Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 Peterson v Western Australia [2017] FCA 1056 Roberts on behalf of the Widjabul Wia-Bal People v Attorney-General of New South Wales [2020] FCAFC 103 Rubibi Community v State of Western Australia (No 7) [2006] FCA 45 Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179 University of Wollongong v Metwally (No 2) [1985] HCA 28; 158 CLR 447 Walsh v Lonsdale (1882) 21 Ch D 9 Walton Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387 Western Australia v Brown [2014] HCA 8; 253 CLR 507 Wik Peoples v State of Queensland [1996] HCA 40; 187 CLR 1 Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487
Division:	General Division
Registry:	South Australia
National Practice Area:	Native Title
Number of paragraphs:	213
Date of last submissions:	29 September 2021
Date of hearing:	30 August 2021
Counsel for the Appellant:	Mr D Billington
Solicitor for the Appellant:	Mellor Olsson Lawyers
Counsel for the First to Seventh Respondents:	Ms S Phillips with Ms A Sibree
Solicitor for the First to Seventh Respondents:	South Australia Native Title Services Ltd
Counsel for the Eighth Respondent:	Mr S Whitten
Solicitor for the Eighth Respondent:	Attorney-General’s Department of South Australia
Solicitor for the Ninth Respondent:	The Ninth Respondent submitted to any order of the Court save as to costs

ORDERS

		SAD 5 of 2021
BETWEEN:	DISTRICT COUNCIL OF STREAKY BAY Appellant
AND:	CAROLINE WILSON (and others named in the Schedule) First Respondent

order made by:	MORTIMER, PERRY AND SC DERRINGTON JJ
DATE OF ORDER:	18 October 2021

THE COURT ORDERS THAT:

1. Leave is granted to amend the application for leave to appeal in terms of the proposed amended application for leave at annexure CD-03 to the affidavit of Ceilia Divakaran sworn on 28 June 2021.

2. The interlocutory application filed on 28 June 2021 for leave to adduce further evidence in support of the amended application for leave to appeal is, to the extent necessary, granted.

3. Leave to appeal in the terms of the draft notice of appeal at annexure CD-03 to the affidavit of Ceilia Divakaran sworn on 28 June 2021 is granted.

4. To the extent that the interlocutory application filed on 28 June 2021 seeks leave to adduce fresh evidence on the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth), that application is refused.

5. The interlocutory application filed on 6 September 2021 to further amend the draft notice of appeal dated 28 June 2021 in terms of annexure CD-05 to the affidavit of Ceilia Divakaran sworn on 6 September 2021 is refused.

6. The appeal is dismissed.

7. The appellant is to pay the costs of the first-to-seventh respondents and the eighth respondent of and incidental to the application referred to in Order 5 as agreed or, if not agreed, to be determined by a Registrar.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT: Introduction and overview

1. In 1997, the...