Foster v Northern Territory of Australia [1999] FCA 1235

FEDERAL COURT OF AUSTRALIA

Foster v Northern Territory of Australia [1999] FCA 1235

ABORIGINAL LANDS – traditional land claims – conservation land reserve – vested in Conservation Land Corporation – whether alienated Crown land – whether corporation a person other than the Crown – vesting of land in corporation – whether estate or interest held by corporation – application to Aboriginal Land Commissioner – jurisdiction of Commissioner – stare decisis – prior decision of High Court on same land and same issue – arguments not agitated before High Court – ratio of High Court decision binding on Federal Court – application for judicial review dismissed. COURTS AND JUDGES – precedent – binding effect of relevant decision by High Court – High Court decision based on challenged assumption – assumption essential step in reasoning – conclusion binding on lower courts – limits of per incuriam rule. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 50(1)(a) Judiciary Act 1903 (Cth), s 39B

R v Kearney; Ex parte Japanangka (1984) 158 CLR 395, followed R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365, cited Attorney-General for Quebec v Attorney-General For Canada [1921] 1 AC 401, cited City of Perth v Crystal Park Ltd (1940) 64 CLR 153, cited Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879, cited Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200, followed Garcia v National Australia Bank Ltd (1998) 155 ALR 614, followed Archer v Howell (1992) 7 WAR 33, cited Ex parte Callinan; Re Russell (1945) 45 SR(NSW) 358, cited Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, followed Cassell & Co Ltd v Broome [1972] AC 1027, cited Schweppes Ltd v Commonwealth of Australia (1944) 45 SR(NSW) 35, cited

Stone, Precedent and Law (1985) Cross and Harris, Precedent in English Law (4th ed 1991) LESLEY FOSTER AND OTHERS v NORTHERN TERRITORY OF AUSTRALIA, CONSERVATION LAND CORPORATION, THE HON JUSTICE H W OLNEY, Acting as the ABORIGINAL LAND COMMISSIONER DG 15 OF 1998 FRENCH, TAMBERLIN AND SACKVILLE JJ 31 AUGUST 1999 (Date of Judgment) 17 SEPTEMBER 1999 (Date Reasons Published) DARWIN