Category Archives: s. 074

Cubillo v Commonwealth [2000] FCA 1084 (11 August 2000)

[2000] FCA 1084

ABORIGINES – children -separation – whether forced or consensual – whether application of general policy without regard to individual circumstances

EVIDENCE – demarcation between matters known to a judge personally and matters before a court formally as evidence – trial judge bound by evidence formally before the court – ability of a trial judge to accept part only of a witness’ evidence – weight to attach to documentary evidence – application of the Briginshaw test to a non party witness – whether principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation – rule in Jones v Dunkel – absence of witnesses claimed to be material witnesses – tendency evidence in civil trials – admissibility – s 97 Evidence Act 1995 (Cth) – whether risk of concoction

WRONGFUL IMPRISONMENT – whether applicants detained – wrongful imprisonment and deprivation of liberty – whether detention unlawful – whether statutory powers exceeded – whether application of general policy without regard to individual circumstances

STATUTORY DUTY – whether statutory duty arose – whether statute precluded duty arising – whether statute allowed recovery for breach of statutory duty

NEGLIGENCE / DUTY OF CARE – whether duty owed – whether general duty of care owed in exercise of powers under welfare statutes – whether breach of duty

EQUITY – fiduciary duty – guardianship – exercise of statutory powers over wards – whether Commonwealth owed and breached fiduciary duties to part Aboriginal people – psychiatric injury – defences – limitation statute not applying to equitable actions – limitation by analogy – laches

VICARIOUS LIABILITY – liability of the Commonwealth – whether tortfeasor servant or agent of Commonwealth – application of independent discretion rule – whether chain of command or control – whether Commonwealth controlled the administration of Aboriginal affairs in the Northern Territory as part of its ordinary governmental functions – whether Director of Native Affairs or Welfare subject to the control of the Commonwealth through the Administrator in the performance of his functions

DAMAGES – assessment of damages – loss of cultural, social and spiritual life – loss of entitlements and advantages under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – mitigation – exemplary damages – whether conscious and contumelious disregard for welfare and rights of the applicants – wanton cruel and reckless indifference – aggravated damages

LIMITATION OF ACTIONS – applications for extension of time – whether extensions should be granted – delay in bringing action – persons under disability – prejudice to the Commonwealth – hardship – whether material facts became known to the applicants

Evidence Act 1995 (Cth) ss 55, 60, 73, 74, 97

Gumana v Northern Territory of Australia [2005] FCA 50 (7 February 2005)

[2005] FCA 50

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 (CTH) – whether grant of fee simple “to low water mark” subject to public rights to fish or navigate – whether land grant limited to solid land – whether Fisheries Act 1988 (NT) can validly apply to inter-tidal zone – [51]–[93]

CONSTITUTIONAL LAW – Northern Territory – whether powers of Northern Territory Parliament to legislate within two kilometres of land grant limited by s 73 of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – [98]–[114] – whether Fisheries Act 1988 (NT) meets requirements of s 73 – [115]–[117]

NATIVE TITLE ACT – nature of determination of native title – “Translation” of indigenous right to statutory right in rem – [119]–[142] – right of exclusive possession – whether single right or “bundle of rights” – [235]–[240] – “non-recognition” at common law – public rights to fish and navigate – sacred sites – [242]–[244]

NATIVE TITLE ACT – effect of s 47A where “non-recognition” – [248]–[263] – constitutional validity of s 47A – [264]–[270]

EVIDENCE – evidence of custom – as evidence of fact – not opinion evidence or hearsay evidence – [152]–[162] – inference that custom existed since date of settlement – [196]–[202] – problems with anthropological evidence – [163]–166] – use of written statements in native title cases – [180]–[184]

Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd & Ors [1998] FCA 1580 (20 November 1998)

[1998] FCA 1580

EVIDENCE – documentary evidence – business records – exception to hearsay – effect provisions creating time limit for objections on admissibility of evidence – whether Pt 4.6 Div 1 of  Evidence Act 1995  (Cth) requires Court not to admit evidence for twenty-one days

Evidence Act 1995  (Cth), ss 26, 47-51, 55, 56, 59, 63, 64, 67, 69, 70-75, 135, 166, 167, 168, 169, 190