Sebastian v State of Western Australia [2008] FCA 926

FEDERAL COURT OF AUSTRALIA

Sebastian v State of Western Australia [2008] FCA 926

ABORIGINES – Native Title – motion for summary dismissal under s 31A Federal Court of Australia Act 1976 (Cth) of motion for interlocutory injunctive relief – whether the "Rubibi applicant" still the registered native title claimant and native title party and thereby entitled to negotiate with the State of Western Australia future acts on behalf of the Yawuru Community, including the Walman Yawuru clan – s 30 Native Title Act 1993 (Cth) – whether Rubibi applicant had ceased to be the registered native title claimant – s 30(2) of the Native Title Act – whether Rubibi applicant, even if it was the registered native title claimant had been authorised to make original application to the Court – ss 61 and 251B Native Title Act – whether Rubibi applicant entitled to negotiate on behalf of the Yawuru Community, including the Walman Yawuru clan with the State.

COSTS – proceedings under Native Title Act 1993 (Cth) – whether s 85A of the Act had application – if so whether applicant in motion engaged in unreasonable conduct such as to enliven s 85(2) displacing prima facie rule that each party bear his or her own costs.

Native Title Act 1993 (Cth), ss 29(2)(b), 30(1)(a); 30(2), 56(1), 57(2), 61(1), 66B, 85A, 189A(b), 190(4)(d), 190C, 193(2)(e), 223(1), 225(c), 251B, 253 Native Title Amendment (Technical Amendments) Act 2007 s100 Federal Court of Australia Act 1976 (Cth) ss 22, 23, 31A, 43

Australian Competition & Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386 referred to Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659referred to Boston Commercial Services Pty Ltd v GE Capital Finance Australasian Pty Ltd (2006) 236 ALR 720 cited Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 cited James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 referred to Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47 cited Rubibi Community v The State of Western Australia (No 3) (2002) 120 FCR 512 referred to Rubibi Community v The State of Western Australia (No 5) [2005] FCA 1025 referred to Rubibi Community v The State of Western Australia (No 6) [2006] FCA 82 referred to Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459 referred to The State of Western Australia v Sebastian [2008] FCAFC 65referred to White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 cited