Wharton on behalf of the Kooma People v State of Queensland [2004] FCA 1761

Wharton on behalf of the Kooma People v State of Queensland [2004] FCA 1761

Because the authorisation issue was significant and potentially affected by conflicting reasons, and because determining the extension of time would involve appellate jurisdiction with refusal fatal to leave, the notice of motion should be referred to a Full Court. Since the Bramfield applicants only made clear on the hearing day that the matter should not proceed before the single judge, they were ordered to pay the costs thrown away by the referral.

Jurisdiction
Australia
Judgment Date
01 April 2004
Procedural Posture
Native Title Proceeding; Notice of Motion Seeking Leave to Appeal and Extension of Time / Referral of Notice of Motion to Full Court
Outcome
Notice of motion referred to the Full Court; applicants on the motion ordered to pay costs thrown away by the referral.
Legal Topics
['authorisation to Bring Native Title Application' 'leave to Appeal' 'extension of Time' 'referral to Full Court' 'costs Thrown Away']
['native Title' 'civil Procedure' 'federal Court Appellate Procedure'] ['authorisation to Bring Native Title Application' 'leave to Appeal' 'extension of Time' 'referral to Full Court' 'costs Thrown Away']

Case Brief

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Procedural Posture

Native Title Proceeding; Notice of Motion Seeking Leave to Appeal and Extension of Time / Referral of Notice of Motion to Full Court

Legal Issues

  1. 1 ['Whether the notice of motion seeking leave to appeal from the orders made on 10 December 2003 and an extension of time should be referred to a Full Court.' 'Whether the applicants on the motion should pay costs thrown away by the referral to a Full Court.']

Ratio Decidendi

Because the authorisation issue was significant and potentially affected by conflicting reasons, and because determining the extension of time would involve appellate jurisdiction with refusal fatal to leave, the notice of motion should be referred to a Full Court. Since the Bramfield applicants only made clear on the hearing day that the matter should not proceed before the single judge, they were ordered to pay the costs thrown away by the referral.

Court Disposition

Notice of motion referred to the Full Court; applicants on the motion ordered to pay costs thrown away by the referral.

Orders

  • ['The notice of motion filed on 9 January 2004 be referred to the Full Court of the Federal Court.' 'The applicant on the motion pay the costs of the parties thrown away by reason of the referral of the motion to the Full Court.']