Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98

Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98

The separate questions were inappropriate to answer because they were framed at a high level of generality, covered disparate categories of fishing licences with varying terms, depended on unresolved factual and legal issues including the scope of any public right to fish and possible inconsistency with the Land Rights Act, and could not produce a final judicial determination quelling the controversy. The application to substitute amended questions was refused because those questions remained ambiguous and would not resolve the substantive dispute. The appeal was therefore allowed, the primary judge's answers were set aside, and each separate question was answered 'Inappropriate to answer'.

Jurisdiction
Australia
Judgment Date
23 February 2001
Procedural Posture
Appeal and Cross Appeal From Answers to Separate Questions Before Trial Concerning Commercial Fishing Licences and Aboriginal Land Under the Aboriginal Land Rights (northern Territory) Act 1976 (cth) and Fisheries Act 1988 (nt) / Full Court Appeal From a Judge of the Federal Court of Australia
Outcome
Appeal allowed; primary judge's answers to the separate questions set aside; substituted answers that it was inappropriate to answer each question; application to substitute amended questions refused.
Legal Topics
['aboriginal Land Rights (northern Territory) Act 1976 (cth)' 'commercial Fishing Licences' 'public Right to Fish' 'separate Questions Before Trial' 'appellate Jurisdiction' 'federal Court Rules O 29 R 2']
['aboriginal Land Rights' 'fisheries' 'practice and Procedure' 'administrative Law'] ['aboriginal Land Rights (northern Territory) Act 1976 (cth)' 'commercial Fishing Licences' 'public Right to Fish' 'separate Questions Before Trial' 'appellate Jurisdiction' 'federal Court Rules O 29 R 2']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal and Cross Appeal From Answers to Separate Questions Before Trial Concerning Commercial Fishing Licences and Aboriginal Land Under the Aboriginal Land Rights (northern Territory) Act 1976 (cth) and Fisheries Act 1988 (nt) / Full Court Appeal From a Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether holders of licences granted under s 10 of the Fisheries Act 1988 (NT) were entitled by virtue of the licence, the Fisheries Act or any public right to take fish or aquatic life from waters overlying land granted to the Arnhem Land Aboriginal Land Trust.' 'Whether the public right to fish in tidal waters had been affected by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the deed of grant, or Northern Territory fisheries legislation.' 'Whether the separate questions were appropriate to answer where the agreed facts and the questions did not provide a concrete factual basis for final determination.' 'Whether the Full Court had power on appeal to substitute amended questions for the separate questions answered at first instance.']

Ratio Decidendi

The separate questions were inappropriate to answer because they were framed at a high level of generality, covered disparate categories of fishing licences with varying terms, depended on unresolved factual and legal issues including the scope of any public right to fish and possible inconsistency with the Land Rights Act, and could not produce a final judicial determination quelling the controversy. The application to substitute amended questions was refused because those questions remained ambiguous and would not resolve the substantive dispute. The appeal was therefore allowed, the primary judge's answers were set aside, and each separate question was answered 'Inappropriate to answer'.

Court Disposition

Appeal allowed; primary judge's answers to the separate questions set aside; substituted answers that it was inappropriate to answer each question; application to substitute amended questions refused.

Orders

  • ['The appeal be allowed.' 'The answers to the Separate Questions given by the primary Judge be set aside and substituted with answers that each question is inappropriate to answer.' 'The parties make written submissions on costs within fourteen days from the date of judgment.' 'In the absence of any written...