Federal Court of Australia
Federal Court of Australia
Glencore Coal Pty Limited v Franks [2021] FCAFC 61 Appeal from: Glencore Coal Pty Limited v Franks [2020] FCA 1801
File number(s): NSD 1357 of 2020
Judgment of: REEVES, PERRY AND ABRAHAM JJ
Date of judgment: 27 April 2021
Catchwords: PRACTICE AND PROCEDURE – application for release from implied Harman undertaking with respect to expert report borne out of mediation process in discontinued native title proceedings – report sought to be used by Glencore Coal for purpose of making representations regarding application under s 10 of Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Heritage Act) by former applicants in the native title proceeding – where s 10 of Heritage Act concerns an exercise of executive power of a largely political character – consideration of circumstances in which a release from the implied Harman undertaking has been granted and applicable principles – whether primary judge erred in declining to exercise discretion to grant release from implied Harman undertaking – where strong public interest exists in ensuring Aboriginal peoples are not deterred from agreeing to the use of court processes in native title proceedings to assist in resolving their claims – appeal dismissed
Legislation: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10 Federal Court Rules 2011 (Cth) rr 23.01, 34.120–34.128 Native Title Act 1993 (Cth) ss 61, 82, 86A, 86B
Cases cited: Ashby v Slipper (No 2) [2016] FCA 550; (2016) 343 ALR 351 Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 Australian Trade Commission v McMahon (1997) 73 FCR 211 BCI Finances Pty Ltd (in liq) v Commissioner of Taxation [2015] FCA 679 Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd [2018] VSC 666 Boronia Park Preservation Group Inc v MSMG Developments Pty Ltd (No 2) [2015] NSWLEC 155 Chapman v Luminis Pty Ltd (No 5) [2000] FCA 1407 Crest Homes Plc v Marks [1987] 1 AC 829 House v The King (1936) 55 CLR 499 In the matter of Bluemine Pty Ltd (in liq) [2019] NSWSC 1474 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 Prime Finance Pty Ltd v Randall [2009] NSWSC 361 Sinnott v Chief of Defence Force [2020] FCA 643 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd [2019] FCA 1464 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 Perry M and Lloyd S (eds), Australian Native Title Law (Thomson Reuters, 2nd ed, 2018)
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