VB (deceased) v State of Western Australia

Federal Court of Australia|2012-09-06|Before: North J, Gilmour J

Submissions for the varying of a judgment 1 The applicant seeks to vary certain orders to rectify a clerical mistake. Pursuant to the Federal Court Rules 2011 (Cth), the Court may vary or set aside a judgment or order after it has been entered if there is an error arising in a judgment or order from an accidental slip or omission per rule 39.05(h), or if there is a clerical mistake in the judgment or order pursuant to r 39.05(g) (the slip rule).

The application of the slip rule to native title determinations 2 In Lovett v Victoria (No 4) (2011) 195 FCR 198, North J made orders using what was then O 35, r 7 of the Federal Court Rules 1979 (Cth), to vary a determination in native title. His Honour considered whether the orders were better made using s 13(1)(b) of the Native Title Act 1993 (the Act) and found at [8]: It is open to the Court to make orders amending the Part A determination under either s 13 of the Act or O 35, r 7 of the Federal Court Rules. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35, r 7(2)(f) and (3) would be regarded as appropriate in the circumstances. 3 Accordingly, there are two questions which need to be determined: first, whether the requested variation is to correct an error arising from an accidental slip or omission; and second, whether the fulsome notification required by the Act is appropriate in the circumstances.

The nature of the error 4 The error is in the numbering of a reserve referred to in subpara 2(a) of Sch 4 to the Orders of the Court of 26 May 2011 (Original Orders). The subpara refers to "Reserve 1101". 5 There is no Reserve 1101 within the area set out as determined by the Original Orders. 6 Schedule 4 of the Original Orders sets out those areas to which ss 47A or 47B of the Act apply to disregard prior extinguishment, as per para 13 of Atachment B of the Original Orders. 7 It is clear that prior extinguishment cannot be disregarded in an area that is not within the area determined by the Original Orders. 8 Schedule 4 should refer to "Reserve 1011" rather than "Reserve 1101" and it is clear that this is an accidental slip or clerical error, whereby the two middle digits of the reserve number were unintentionally reversed.

Original intent of the parties 9 Reserve 1011 exists within the determined area. It covers an area of land adjacent to Walcott Inlet and is set aside for the same purpose as that referred to in subpara 2(a) of Sch 4. 10 Subparagraph 2(a) also refers to the Reserve as "Easton Location 29". Reserve 1011 is at "Easton Location 29". 11 Reserve 1011 is depicted in the map at Sch 1, Attachment 1 as being an area to which ss 47A or 47B of the Act applies, but unless the reference to "Reserve 1101" in subpara 2(a) is taken to be an error, it is not mentioned in Sch 4. 12 Reserve 1011 is referred to in para 1(a)(i) of Sch 5 of the Original Orders. That reference includes the same description of the purpose of the reserve as is included in the reference to Reserve 1101 in subpara 2(a) of Sch 4. 13 It is clear that the original intent of the parties was that subpara 2(a) of Sch 4 should refer to "Reserve 1011", not "Reserve 1101".

Whether arising from accidental slip or omission 14 I find that the parties would not have knowingly included a reference to a reserve that did not exist in the area the subject of the proceedings and I make orders accordingly.

Whether the notification required by section 13 of the Act is appropriate 15 Correcting the accidental slip or clerical error by replacing the reference to "Reserve 1101" with a reference to "Reserve 1011" does not alter the effect of the Original Orders. 16 I do not, in these circumstances, consider that the onerous notification requirements set out in s 13 of the Act are necessary or appropriate. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Native Title Act 1996(Cth)ss s

Federal Court Rules 1979(Cth)

Federal Court Rules 2011(Cth)r 39.05(g), (h)

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