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

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

Because the Court had upheld the judicial review application on the basis of jurisdictional error, and s 199C of the Native Title Act did not restrict the Court's judicial review jurisdiction, the registration decision was to be set aside, the ILUA details removed from the Register, and the registration application remitted. Section 85A did not justify departing from the usual costs order in this AD(JR) Act proceeding, so the successful applicants were entitled to costs against the first and second respondents, to be fixed as a lump sum.

Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Judicial Review Application Concerning Registration of an Indigenous Land Use Agreement / Determination of Relief and Costs After the Application Was Upheld
Outcome
The applicants obtained relief setting aside the registration decision, directing removal of the ILUA from the Register, remitting the registration application, and obtaining costs against the first and second respondents.
Legal Topics
['indigenous Land Use Agreement Registration' 'judicial Review' 'jurisdictional Error' 'removal From Register of Indigenous Land Use Agreements' 'costs Discretion']
['native Title' 'administrative Law' 'costs'] ['indigenous Land Use Agreement Registration' 'judicial Review' 'jurisdictional Error' 'removal From Register of Indigenous Land Use Agreements' 'costs Discretion']

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Procedural Posture

Judicial Review Application Concerning Registration of an Indigenous Land Use Agreement / Determination of Relief and Costs After the Application Was Upheld

Legal Issues

  1. 1 ["Whether the Court should set aside the delegate's decision to register the Taungurung Settlement Indigenous Land Use Agreement and direct removal of its details from the Register of Indigenous Land Use Agreements after finding jurisdictional error." 'Whether s 199C of the Native Title Act 1993 (Cth) prevented or limited relief in a judicial review proceeding.' 'Whether s 85A of the Native Title Act 1993 (Cth) applied to the costs of the judicial review proceeding.']

Ratio Decidendi

Because the Court had upheld the judicial review application on the basis of jurisdictional error, and s 199C of the Native Title Act did not restrict the Court's judicial review jurisdiction, the registration decision was to be set aside, the ILUA details removed from the Register, and the registration application remitted. Section 85A did not justify departing from the usual costs order in this AD(JR) Act proceeding, so the successful applicants were entitled to costs against the first and second respondents, to be fixed as a lump sum.

Court Disposition

The applicants obtained relief setting aside the registration decision, directing removal of the ILUA from the Register, remitting the registration application, and obtaining costs against the first and second respondents.

Orders

  • ['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.' 'The Registrar of the National Native Title Tribunal be directed to remove forthwith the details of the Taungurung Settlement...