Dale v State of Western Australia [2011] FCAFC 46

FEDERAL COURT OF AUSTRALIA

Dale v State of Western Australia [2011] FCAFC 46 Citation: Dale v State of Western Australia [2011] FCAFC 46

Appeal from: Dale v State of Western Australia [2009] FCA 1201

Parties: BETTY DALE, TIM DOUGLAS, CANE HICKS, DALLAS HICKS, WILFRED HICKS AND ERNIE RAMIREZ v STATE OF WESTERN AUSTRALIA, ROBERT LOWDEN, JOE RINKENS, WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL INC, DA & PG COOK (PYRAMID STATION), PG & DA COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), DM & JA SAMBELL (WARAMBIE STATION), YALLEEN PASTORAL CO PYT LTD, SHIRE OF ROEBOURNE, AUSTRALIAN MARITIME SAFETY AUTHORITY AND COMMONWEALTH OF AUSTRALIA, TELSTRA CORPORATION LIMITED, AUSTEEL PTY LTD, VERONICA PATRICIA DEVINE, CP & RS HILBERS, MINERALOGY PTY LTD, PIONEER CONSTRUCTION MATERIALS PTY LTD, BHP PETROLEUM, BP DEVELOPMKENTS AUSTRALIA PTY LTD, CHEVRON ASIATIC LTD, JAPAN AUSTRALIA LNG (MIMI) PTY LTD, MITUI IRON ORE DEVELOPMENT PTY LTD, NIPPON STEEL AUSTRALIA PTY LTD, NORTH MINING LIMITED, NORTH WEST SHELF PTY LTD, ROBE RIVER MINING CO PYT LTD, SHELL DEVELOPMENT (AUSTRALIA) PTY LTD, SUMITOMO METAL AUSTRALIA PTY LTD, WOODSIDE ENERGY LTD, SANTOS OFFSHORE PTY LTD, JEAN LOCKYER & ORS FOR THE KURAMA/MARTHUDUNERA PEOPLE (WAD 6090/98), COSSACK PEARLS PTY LTD & DAMPIER PEARLING COMPANY, INTROX PTY LTD and VIOLET SAMSON & ORS

File number: WAD 204 of 2009

Judges: MOORE, NORTH & MANSFIELD JJ

Date of judgment: 31 March 2011

Catchwords: NATIVE TITLE – appellants claimed native title rights and interests over large area of land in north west Western Australia – claim area substantially overlapped other claims to native title rights and interests of different native title claim groups – part of claim area of appellants consolidated with other competing claims over that part of the claim area in an earlier determination by court that the appellant native title claim group in the consolidated claim did not establish continuity of existence as a group since sovereignty – determination in consolidated claim that native title rights and interests over consolidated claim area held by differently constituted native title claim group – appellants then separately pursued claim for determination of native title rights and interests over remaining (unconsolidated) part of their claim area – present claim therefore concerns whether native title exists in remaining areas that were not the subject of the determination in the consolidated claim – application under O 20 r 4 of the Federal Court Rules by State of Western Australia for summary dismissal of the claim – issue estoppel – whether same issue had been decided in consolidated claim determination – whether claim should be dismissed as an abuse of process – held that claim should be dismissed as abuse of process as one critical issue as to whether the claim group was a native title group which existed since sovereignty and had maintained the necessary connection to its claim area since then had been decided adversely to it on evidence in essence the same as that now proposed to be relied upon