Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales (No 2) [2010] FCA 1477

Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales (No 2) [2010] FCA 1477

The notices of motion were dismissed because the proceedings already stood dismissed under the self-executing orders of 1 October 2010, the applicants had not served the further material and amended native title application on the other parties, the other parties had not had an adequate opportunity to consider that material, and there was doubt whether the applicants' material was complete. In those circumstances there could be no favourable exercise of discretion to vary the orders or adjourn the motions.

Jurisdiction
Australia
Judgment Date
16 December 2010
Procedural Posture
Native Title Determination Application / Notices of Motion Seeking to Vary Self Executing Orders Dismissing the Proceedings
Outcome
The notices of motion filed 17 November 2010 were dismissed.
Legal Topics
['variation of Orders' 'self Executing Dismissal Orders' 'extension of Time' 'procedural Fairness']
['native Title' 'civil Procedure'] ['variation of Orders' 'self Executing Dismissal Orders' 'extension of Time' 'procedural Fairness']

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Procedural Posture

Native Title Determination Application / Notices of Motion Seeking to Vary Self Executing Orders Dismissing the Proceedings

Legal Issues

  1. 1 ['Whether the Court should vary the orders made on 1 October 2010 to extend time for filing and service of an amended native title determination application and material for the preliminary question.' 'Whether discretion should be exercised in favour of the applicants where the proceedings already stood dismissed for non-compliance with the orders of 1 October 2010.' 'Whether fairness to other parties required service of all material and an adequate opportunity to consider it before the motions could be determined.']

Ratio Decidendi

The notices of motion were dismissed because the proceedings already stood dismissed under the self-executing orders of 1 October 2010, the applicants had not served the further material and amended native title application on the other parties, the other parties had not had an adequate opportunity to consider that material, and there was doubt whether the applicants' material was complete. In those circumstances there could be no favourable exercise of discretion to vary the orders or adjourn the motions.

Court Disposition

The notices of motion filed 17 November 2010 were dismissed.

Orders

  • ['The notice of motion filed 17 November be dismissed.' 'Reserve the costs of the motion filed 17 November 2010.' 'In respect of the orders made on 1 October 2010, otherwise order pursuant to Order 36 Rule 6 of the Federal Court Rules that the date on which the order is entered not be the date on which the order was...