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Law Society Northern Territory
Issue no. 1
Law Society Northern Territory
N O T I C E B O A R D L A W S O C I E T Y N T Court decided for itself the penalties to be imposed and ordered total penalties of $20.6m (that is, an increase compared to the trial judges total penalties of $17.1m). JANUARY/FEBRUARY C O N S T I T U T I O N A L L A W / D E F A M A T I O N P R A C T I C E A N D P R O C E D U R E Trial by jury in the Federal Court? Section 39 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) provides that civil trials are to be without a jury unless the Court or a judge otherwise orders. Section 40 of the Federal Court Act is a broad discretionary power of the Court in civil proceedings to direct trial of issues with a jury. In Wing v Fairfax Media Publications Pty Ltd  FCAFC 191 (27 Novembr 2017), the Full Court determined an interlocutory application seeking an order pursuant to s 40 of the Federal Court Act that, to the extent permitted by law, the proceeding be heard by a jury. This was in relation to the applicants claim for damages for defamation under the Defamation Act 2005 (NSW) (the NSW Defamation Act). The Court had jurisdiction because the applicant alleges that the matter complained of was published in (among other places) the Australian Capital Territory: Crosby and Another v Kelly (2012) 203 FCR 451. There was a constitutional law issue before the Full Court by reason of an alleged inconsistency between ss 21 and 22 of the the NSW Defamation Act and ss 39 and 40 of the Federal Court Act for the purposes of s 109 of the Constitution (Cth). The parties agreed (as did the Court) that ss 21 and 22 of the NSW Defamation Act were inconsistent with ss 39 and 40 of the Federal Court Act within s 109 of the Constitution (at  and , Allsop CJ and Besanko J). The point on which the parties disagreed was whether the Court in exercising the discretion under s 40 of the Federal Court Act may have regard to ss 21 and 22 of the NSW Defamation Act. The Full Court held ss 21 and 22 of the NSW Defamation Act did not apply to the proceeding and the sections were not relevant to the exercise of the discretion in s 40 of the Federal Court Act (at -, Allsop CJ and Besanko J, and , Rares J). The Full Court also dismissed the respondents interlocutory application under s 40 of the Federal Court Act seeking an order that the proceeding be heard by a jury (at , Allsop CJ and Besanko J, and , Rares J). In doing so, the Full Court considered the authorities and principles relevant to exercising the discretion to order a trial by jury in the Federal Court (at -, Allsop CJ and Besanko J, and -, Rares J). Justice Rares noted at  that in the forty years of the existence of ss 39 and 40 in the Federal Court Act, Ra 183 FCR 148 is the only occasion on which a judge has ordered a jury trial :.. Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 was in fact a decision of Rares J. In Wing, Rares J agreed Allsop CJ and Besanko J with that his view of the certain factors in Ra was erroneous (at -, Allsop CJ and Besanko J, and - Rares J). E Q U I T Y / N A T I V E T I T L E Fiduciary duties of persons constituting an applicant for bringing a native title determination application In Gebadi v Woosup (No 2)  FCA 1467 (7 December 2017) the Court considered fiduciary obligations that arise in equity in the context of statutory arrangements under the Native Title Act 1993 (Cth) (the Act). The applicants were persons who brought proceedings in a representative capacity on behalf of the Ankamuthi People. The respondents (Mr Woosup and Ms Tamwoy) were formerly two of thirteen persons authorised by the Ankamuthi native title claim group to prosecute the native title determination application under s 61 of the Act. The main issues in the case were summarised by Greenwood J at : ... the central contention in these proceedings is that Mr Woosup and Ms Tamwoy owed fiduciary obligations to the Ankamuthi native title claim group when acting as applicant and that they failed to discharge those obligations. In the case of Mr Woosup, it is said that he has taken for his own benefit, benefits payable under the Gulf agreement for and on behalf of the Ankamuthi native title claim group. The first question is whether Mr Woosup and/or Ms Tamwoy owe fiduciary obligations to the Ankamuthi native title claim group, that is to say, are they in a fiduciary relationship with that group? The second question is, if fiduciary obligations are owed by either of them to the claim group, what are the obligations so owed? The third question is, have either of them failed to discharge those obligations? ... As to whether and how fiduciary obligations arose, Greenwood J held at  that the applicable principles ... are the essential principles which determine whether a person has accepted or assumed fiduciary obligations to another. The context in the case of Mr Woosup and Ms Tamwoy, in accepting and undertaking to act as persons constituting the applicant, is the relevant context but the principles to be applied in determining whether they owed fiduciary obligations to the native title claim group are the same principles determined in our jurisprudence for deciding whether a person has, in all the circumstances, assumed particular fiduciary obligations to another. At