Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163

Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163

The proceeding was not dismissed because the Thalanyji (No 1) consent determination did not clearly determine the existence or non-existence of native title in the excluded area and did not clearly preclude a later claim by the same claim group. There was no sufficient basis for res judicata, issue estoppel, Anshun estoppel or broader abuse of process. The Court was also not satisfied under s 190F(6)(a) that the application was not likely to be amended in a way that would lead to a different registration outcome, because the proposed amendments and supporting anthropological and claim group material gave a real chance of satisfying the previously failed registration-test conditions. In...

Jurisdiction
Australia
Judgment Date
23 October 2012
Procedural Posture
Native Title Determination Application (claimant Application) / First Respondent's Interlocutory Application to Dismiss Under S 190 F(6) of the Native Title Act 1993 (cth), or Alternatively Under R 26.01(1)(d) of the Federal Court Rules 2011 (cth) for Abuse of Process
Outcome
First respondent's application to dismiss was dismissed.
Legal Topics
['dismissal of Claimant Application' 'registration Test' 'abuse of Process' 'res Judicata' 'issue Estoppel' 'anshun Estoppel' 'consent Determination']
['native Title' 'civil Procedure'] ['dismissal of Claimant Application' 'registration Test' 'abuse of Process' 'res Judicata' 'issue Estoppel' 'anshun Estoppel' 'consent Determination']

Case Brief

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Procedural Posture

Native Title Determination Application (claimant Application) / First Respondent's Interlocutory Application to Dismiss Under S 190 F(6) of the Native Title Act 1993 (cth), or Alternatively Under R 26.01(1)(d) of the Federal Court Rules 2011 (cth) for Abuse of Process

Legal Issues

  1. 1 ['Whether the Thalanyji (No 2) claimant application should be dismissed as an abuse of process because it was brought by the same claim group after the Thalanyji (No 1) consent determination and dismissal of the balance of that proceeding.' 'Whether the requirements of s 190F(6) of the Native Title Act 1993 (Cth) were satisfied, including whether the application was not likely to be amended in a way that would lead to a different registration outcome.' 'Whether there was any other reason why the application should not be dismissed under s 190F(6)(b).']

Ratio Decidendi

The proceeding was not dismissed because the Thalanyji (No 1) consent determination did not clearly determine the existence or non-existence of native title in the excluded area and did not clearly preclude a later claim by the same claim group. There was no sufficient basis for res judicata, issue estoppel, Anshun estoppel or broader abuse of process. The Court was also not satisfied under s 190F(6)(a) that the application was not likely to be amended in a way that would lead to a different registration outcome, because the proposed amendments and supporting anthropological and claim group material gave a real chance of satisfying the previously failed registration-test conditions. In...

Court Disposition

First respondent's application to dismiss was dismissed.

Orders

  • ['The application of the first respondent to dismiss the application under s 190F(6) of the Native Title Act 1993 (Cth) for abuse of process be dismissed.']