Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 3) [2019] FCA 492

Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 3) [2019] FCA 492

The pleadings required clarification. The State had not identified the particular provisions of the Native Title Agreement relied on for paragraph 8 of its third cross-claim and should do so; once that is done, BTAC must clarify whether it disputes the State's construction on the face of the agreement or relies on other facts, and if so identify those facts and their effect. Paragraph 14(d) of BTAC's defence should remain because the illegality point was neither unarguable nor embarrassing and sufficiently alerted the parties to the argument BTAC sought to run.

Jurisdiction
Australia
Judgment Date
10 April 2019
Procedural Posture
Interlocutory Application to Strike Out Paragraphs of a Defence to a Cross Claim or Alternatively for Further Particulars / Application by the State of Western Australia Concerning Btac's Defence to the Third Cross Claim
Outcome
Interlocutory application allowed in part; paragraph 8 required clarification and paragraph 14(d) was not struck out; costs in the cause.
Legal Topics
['strike Out Pleadings' 'further Particulars' 'material Facts' 'contractual Construction' 'native Title Agreement' 'illegality Pleading']
['practice and Procedure' 'native Title' 'contract'] ['strike Out Pleadings' 'further Particulars' 'material Facts' 'contractual Construction' 'native Title Agreement' 'illegality Pleading']

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Procedural Posture

Interlocutory Application to Strike Out Paragraphs of a Defence to a Cross Claim or Alternatively for Further Particulars / Application by the State of Western Australia Concerning Btac's Defence to the Third Cross Claim

Legal Issues

  1. 1 ["Whether paragraphs of BTAC's defence to the State's third cross-claim should be struck out or further particularised under rr 16.21 and 16.45 of the Federal Court Rules 2011 (Cth)." "Whether BTAC's response to paragraph 8 of the third cross-claim gave fair notice of its position on the construction of the Native Title Agreement and the material facts relied on." "Whether paragraph 14(d) of BTAC's defence, alleging contravention of s 155(1) of the Mining Act 1978 (WA), should be struck out as disclosing no reasonable defence."]

Ratio Decidendi

The pleadings required clarification. The State had not identified the particular provisions of the Native Title Agreement relied on for paragraph 8 of its third cross-claim and should do so; once that is done, BTAC must clarify whether it disputes the State's construction on the face of the agreement or relies on other facts, and if so identify those facts and their effect. Paragraph 14(d) of BTAC's defence should remain because the illegality point was neither unarguable nor embarrassing and sufficiently alerted the parties to the argument BTAC sought to run.

Court Disposition

Interlocutory application allowed in part; paragraph 8 required clarification and paragraph 14(d) was not struck out; costs in the cause.

Orders

  • ['Within 7 days of the publication of this order, the parties provide a signed minute of consent orders giving effect to these reasons.' 'The matter remain listed for a case management hearing on 15 April 2019 at 10.15 am.' 'Costs be in the cause.']