District Council of Streaky Bay v Wilson [2021] FCAFC 181

Federal Court of Australia

District Council of Streaky Bay v Wilson [2021] FCAFC 181 Appeal from: Wilson v State of South Australia (No 4) [2020] FCA 1805

File number: SAD 5 of 2021

Judgment of: MORTIMER, PERRY AND SC DERRINGTON JJ

Date of judgment: 18 October 2021

Catchwords: NATIVE TITLE – appeal from determination of native title – whether the construction of public works in the nature of major earthworks – whether construction in time or by validation sufficient to extinguish native title in relevant parts of the land – in the alternative whether a lease had been granted which constituted a previous exclusive possession act which extinguished native title in the land PRACTICE AND PROCEDURE – whether Court could receive fresh evidence on appeal – whether new evidence would have led to a different result at trial – whether appellant exercised reasonable diligence to be made aware of evidence before trial – futher, where leave sought to raise new ground on appeal – where question live at trial – whether inadvertence can explain a failure at trial to nominate the correct provision

Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1A), 27 Federal Court Rules 2011 (Cth) Pts 20, 24, r 36.57 Native Title Act 1993 (Cth) ss 23B(2), 23B(7), 24IB, 24ID, 24JB(2), 85A, 87A, 229(4), 232A, 242, 249A, 251D, 253 Native Title Amendment Act 1998 (Cth) Sch 5 Associations Incorporations Act 1956-1965 (SA) Law of Property Act 1936 (SA) ss 28, 29(1) Local Government Act 1934 (SA) s 666C Native Title (South Australia) Act 1994 (SA) ss 31(2), 32, 34, 36F, 36G Real Property Act 1886 (SA) ss 41, 166