Gardiner v Taungurung Land and Waters Council (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 19 March 2021
• Neutral Citation: [2021] FCA 253
• Court: Federal Court
• Date: 19 March 2021

Federal Court of Australia

Gardiner v Taungurung Land and Waters Council (No 2) [2021] FCA 253

File number(s):	VID 384 of 2020
Judgment of:	MORTIMER J
Date of judgment:	19 March 2021
Catchwords:	NATIVE TITLE – jurisdiction of the Federal Court to remove an Indigenous Land Use Agreement from register of ILUAs where Court has found jurisdictional error in decision of Registrar – whether s 199C of Native Title Act 1993 (Cth) impediment – s 85A of the Native Title Act not applicable to orders for costs
Legislation:	Administrative Decisions (Judicial Review) Act 1997 (Cth) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Native Title Act 1993 (Cth) ss 199C, 85A
Cases cited:	Burragubba v State of Queensland [2015] FCA 1163; 236 FCR 160 Gardiner v Taungurung Land and Waters Council [2021] FCA 80 Kimberley Land Council Aboriginal Corporation v Williams (No 2) [2018] FCA 2058 McGlade v Native Title Registrar (No 2) [2017] FCAFC 84 McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 Murray v Registrar of Native Title Tribunal [2003] FCA 45
Division:	General Division
Registry:	Victoria
National Practice Area:	Native Title
Number of paragraphs:	21
Date of last submission/s:	9 March 2021
Date of hearing:	Determined on the papers
Counsel for the Applicants:	Ms A Sheehan with Ms S Armstrong
Solicitor for the Applicants:	Holding Redlich
Counsel for the First Respondent:	Ms E Longbottom QC with Mr M Albert
Solicitor for the First Respondent:	First Nations Legal & Research Services
Counsel for the Second Respondent:	Mr P Willis SC with Ms L Bennett
Counsel for the Second Respondent:	Victorian Government Solicitor’s Office

ORDERS

		VID 384 of 2020
BETWEEN:	MS MARGARET GARDINER First Applicant ; MR GARY MURRAY Second Applicant ; MS ELIZABETH THORPE (and another named in the Schedule) Third Applicant
AND:	TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION ICN 4191) First Respondent ; STATE OF VICTORIA Second Respondent ; NATIVE TITLE REGISTRAR Third Respondent

order made by:	MORTIMER J
DATE OF ORDER:	19 March 2021

THE COURT ORDERS THAT:

1. The decision of a delegate of the Registrar of the National Native Title Tribunal, dated 30 April 2020, to register the Taungurung Settlement Indigenous Land Use Agreement be set aside.

2. The Registrar of the National Native Title Tribunal be directed to remove forthwith the details of the Taungurung Settlement Indigenous Land Use Agreement from the Register of Indigenous Land Use Agreements.

3. The application for registration of the Taungurung Settlement Indigenous Land Use Agreement be remitted to the Registrar for consideration in accordance with the law.

4. The first and second respondents pay the applicants’ costs of and incidental to the application, including the costs of and incidental to written submissions made pursuant to the Court’s orders made on 9 February 2021, all costs to be fixed by way of a lump sum.

5. On or before 4pm on 2 April 2021 the parties are to file any agreed proposed orders as to the applicants’ lump sum costs.

6. If no proposed orders are filed pursuant to order 5, the question of the appropriate amount for the applicants’ lump sum costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1. On 9 February 2021, the Court published its reasons for the judgment on the applicants’ application for judicial review of a decision by a delegate of the Native Title Registrar to register the Taungurung Settlement Indigenous Land Use Agreement under s 24CK(1) of the Native Title Act 1993 (Cth). The Court upheld the judicial review application: see Gardiner v Taungurung Land and Waters Council [2021] FCA 80. Due to a contention put on behalf of the first respondent at trial (see [129]-[130] of Gardiner), the Court made orders for the filing of submissions on appropriate relief. The parties were also directed to make any submissions they wished to make about the costs of the proceeding.

2. The first respondent and the State were ordered to make their submissions first, as the contention opposing relief was their contention. As it turned out, neither respondent pressed any argument that the applicants were not entitled to the relief which would usually flow from the upholding of a judicial review application under the Administrative Decisions (Judicial Review) Act 1997 (Cth).

3. The first respondent’s initial objections centred on the terms of s 199C of the Native Title Act, which relevantly provides:

(1) Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

…

(c) in any case:

…

(iii) the Federal Court, under subsection (2), orders the details to be removed.

Note: If the details of an agreement are removed from the Register, the agreement will cease to have effect under this Act from the time the details are removed: see subsection 24EA(1) and paragraph 24EB(1)(b).

…

(2) The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.

(3) The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).

4. Although the Court is given jurisdiction under s 199C(2) to “order the Registrar to remove the details of the agreement from the Register” if the preconditions in s 199C are met, there was no objection to competency of the applicants’ AD(JR) Act application. In other words, it was never suggested by either respondent that the Court’s jurisdiction under the AD(JR) Act had been ousted or limited by the terms of s 199C of the Native Title Act. Section 199C is expressly concerned with acts of fraud, undue influence or duress in entering in to an ILUA. It is not concerned with judicial review.

5. In their submissions, the respondents accepted the Court had characterised the delegate’s errors as jurisdictional (see [319] of Gardiner). With varying degrees of detail in their respective submissions, neither respondent sought to contend the delegate’s errors did not affect the exercise of her jurisdiction, and her power to register the ILUA. Therefore they accepted the delegate’s decision should be set aside, the Taungurung ILUA should be removed from the ILUA Register, and the matter remitted to the Registrar for determination of the ILUA registration application according to law.

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