FEDERAL COURT OF AUSTRALIA

Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made on 13 May 2015 in proceeding NSD 2308 of 2011 be set aside.

3.    No order as to costs. Leave for all parties to apply in writing to vary this order within seven (7) days in which event directions will be made in chambers for the issue of costs to be resolved on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

1    I have had the opportunity to read the draft reasons for judgment of Barker J and Bromberg J. On ground 1 of the notice of appeal, I generally agree with the reasons for judgment of Barker J and therefore agree with his Honour that the appeal should be allowed and the primary Judge’s orders of 13 May 2015 should be set aside. That being so, I do not consider it is necessary to deal with ground 4 to dispose of the appeal. However, because the point of difference between their Honours judgments on ground 1 is quite narrow, it is appropriate that I should express my own reasons for coming to this conclusion.

2    The factual background to this appeal, including the critical parts of the transcript before the primary Judge at the hearings conducted on 10 March 2015 and 13 May 2015, are set out in detail in the reasons for judgment of both Barker J and Bromberg J. It is therefore unnecessary for me to repeat that exercise and I will instead rely upon those outlines.

3    It is convenient to begin by identifying the salient features of the jurisdiction of the Court that is under consideration in this appeal. An exclusive jurisdiction is conferred on the Court under s 81 of the Native Title Act 1993 (Cth) (NTA) to “hear and determine applications … that relate to native title”. “Applications … that relate to native title” are native title determination applications that are filed with the Court under s 61: see Lardil Peoples v Queensland [2001] FCA 414; (2001) 108 FCR 453 at [41] per French J (dissenting, but not on this point) and [150]–[153] per Dowsett J. The substantive application in this proceeding is such an application. Moreover, it is a claimant application as defined in s 253 of the NTA. The fact it is a claimant application is particularly significant. That is so because authorisation of the Applicant is fundamental to the initial and continuing validity of all claimant applications.

4    So much is apparent from numerous provisions of the NTA. They include s 61(1) limiting the persons who may make a native title determination application to a person or persons authorised by the native title claim group; s 62(1)(a)(iv) and (v) requiring a claimant application to be supported by an affidavit containing certain information relating to the authorisation of the Applicant; s 84C allowing a party to apply to strike out an application if it does not comply with, among other provisions, ss 61 and 62; s 84D giving the Court certain powers to make orders relating to defects in the authorisation of the Applicant; and s 251B which specifies how a native title claim group is to authorise an Applicant to make a native title determination application on its behalf.

5    The critical importance of the proper authorisation of an Applicant in the scheme of the NTA was underscored by the Full Court in Commonwealth v Clifton (2007) 164 FCR 355; [2007] FCAFC 190 (Clifton). In that matter, the Court concluded that the proper authorisation of the Applicant was so critical that a determination of native title could not be made unless the apposite procedures in the Act had been followed. The Court said (at [57]):

In our view, since the coming into force of the Native Title Amendment Act, those procedures require, as a minimum, that before any determination may be made that native title is held by a particular group, an application as mentioned in s 13(1) must be made under Pt 3 of the Act by a person or persons authorised by that group in the manner required by s 61(1). It is unnecessary on this appeal to determine what, if any, other requirements of Div 1 of Pt 3 of the Act may also be critical to the making of such a determination.

See also Clifton at [22] and [23].

6    It follows that the proper authorisation of the Applicant is a critical component of the Court’s jurisdiction to hear and determine applications that relate to native title. Once this kind of jurisdiction has been conferred on the Court by a statute, such as the NTA, it has the power to make such orders as are necessary and appropriate for the purpose of exercising it. It is unnecessary for me to elaborate upon the nature and extent of those powers because Barker J and Bromberg J have done so more than adequately in their reasons for judgment. In my view, all this means that there is no doubt that the Court had the jurisdiction to consider any dispute about the authorisation of the Gomeroi Applicant, if such a dispute arose in the course of the Gomeroi People’s native title determination application proceeding, and, if one did, the primary Judge had the power to make such orders as she considered necessary and appropriate to resolve it.

7    In my view, therefore, the central issue in this appeal is not whether the primary Judge had the power to make the orders she did, but rather the more fundamental question whether there existed any real dispute about the authorisation of the Gomeroi Applicant which attracted the Court’s jurisdiction under s 81 such that it became necessary and appropriate to exercise that power.

8    In addressing that question, it is convenient to begin by tracing how this matter developed before the primary Judge. It began as an interlocutory application in the nature of an intra parte dispute as to who was entitled to appear on the record as the lawyers for the Gomeroi Applicant. This application appears to have been primarily concerned with the Court’s undoubted jurisdiction to supervise the conduct of the lawyers who appear before it: see Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200 and Ashby v Slipper [2014] FCAFC 15 at [333]–[334] per Siopis J. The primary Judge disposed of that interlocutory application and there is no appeal from those orders. Thereafter, the matter appears to have morphed into a discussion between the primary Judge and counsel for NTSCORP about the existence or otherwise of a dispute with respect to authorisation, specifically the authority of the Gomeroi Applicant to appoint new lawyers to act on its behalf. The primary Judge pointedly conducted this discussion as a part of a directions hearing in the Gomeroi People’s substantive proceeding.

9    There appeared to have been two matters at the centre of this discussion. First, there was resolution number 10(e) which was passed at the meeting of the Gomeroi People held on 10-11 May 2013 expressing an “expectation” that the Applicant “may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group …”. Secondly, there was the letter from the newly appointed lawyer for the Applicant, Mr Hegney, to NTSCORP on 30 January 2015 reminding it of its ethical obligations and stating “… do not contact any of the Applicants (sic), unless by written permission, which is hereby withheld”. Exhibits evidencing both of these matters were tendered by NTSCORP at the hearing on 10 March 2015.

10    As well, it is necessary, in my view, to take into account the particular context in which this discussion occurred. In the first place, the primary Judge had been the docket judge for the Gomeroi People’s substantive proceeding for some time and was therefore likely to have gained some familiarity with the history of that proceeding and any disputes about authorisation or otherwise that had arisen within the Gomeroi native title claim group in the past. Secondly, her Honour is a Judge who is experienced in dealing with native title proceedings and is therefore likely to have been well aware of the range and variety of issues that can arise affecting an Applicant authorised to make and pursue an application on behalf of a native title claim group. That includes the capacity an Applicant has, if so minded, to use the resources and authority at its disposal to frustrate attempts by a native title claim group to review its authority.

11    The first matter, the expectation expressed in resolution 10(e), was considered at some length during the exchange between the primary Judge and NTSCORP’s counsel and roundly dismissed by her Honour. That particularly appears from the transcript of the hearing on 10 March 2015 where her Honour: noted the distinction between an expectation and something that was “necessarily legally enforceable”; did not accept a submission that the expectation expressed in resolution 10(e) could be read as a condition; observed that resolution 10(e) had been passed in 2013 and said nothing about the attitude of the Gomeroi native title claim group at the time of the hearing before her; pointed out that there was no evidence before her of any “disjunction” between the Gomeroi Applicant and the Gomeroi native title claim group; noted that it was, instead, Mr Powrie as the Legal Officer of NTSCORP who was making the complaint before her about authorisation; and observed that, if there were a concern about authorisation, the solution for the Gomeroi native title claim group lay in an application under s 66B to replace the Gomeroi Applicant.

12    There was a different outcome, however, in relation to the second matter. Indeed, in my view, it was that matter that ultimately prompted her Honour to make the orders that she did. In relation to that matter, the transcript of the hearing on 10 March 2015 reveals that, having disposed of the first matter in the first 20 pages (approximately) of that transcript, her Honour said (at p 22): “the only thing I would be willing to do is to somehow put in place arrangements so that the fact that Mr Hegney doesn’t consent to a solicitor contacting what he calls ‘his clients’ somehow be got round so that there can be a meeting of the native title claim group”. Her Honour added that “there may be a practical issue” in calling that meeting and she also stated that she intended to: “make whatever directions are seen to be appropriate to facilitate such a meeting occurring if there’s any risk that 16 people, or Mr Hegney, are going to stop, by whatever powers they’ve got - a meeting occurring”.

13    After hearing briefly from the lawyer for the Gomeroi Applicant, the primary Judge then indicated (at p 24) that she intended to make two formal directions. The first was an order dismissing NTSCORP’s interlocutory application. The second led to the orders that are under appeal. It was an order granting leave to NTSCORP to file a set of directions “to facilitate a meeting of the Gomeroi People”. In relation to this order, her Honour answered affirmatively to NTSCORP’s counsel’s question: “… in essence are you asking for proposed directions regarding facilitating correspondence with the applicants? Is that the purpose of the direction?” Her Honour then described how she envisaged the matter proceeding in these terms (at p 24): “I’m saying they [NTSCORP] can do what’s necessary to convene a meeting if they decide that it should be. They may decide that – not going to bother … and if they don’t file or anything, then it all goes away, but if they decide that, as a matter of policy, they think a meeting of the Gomeroi People should be convened, I am going to facilitate it” (emphasis added).

14    As it happened, NTSCORP did decide to file a set of directions. It was those directions that were considered at the further directions hearing held on 13 May 2015. In the course of the discussion preceding the orders made on that date, the primary Judge observed that the “scope of the authority [of the Applicant] was ambiguous” and that authority was a matter for the Gomeroi native title claim group to determine. In this respect, it is worth adding that, at the hearing on 10 March 2015, the primary Judge had observed that the only way she could know for sure what “the actual native title claim group want” was if there were to be a meeting of that claim group.

15    While, on one view, the latter observations may appear to have reopened the first matter, I consider the position that emerges from a fair reading of the transcript of the two hearings taken in the context described above can be summarised in the following terms. There was nothing before the primary Judge to indicate the existence of a dispute about the authorisation of the Gomeroi Applicant but, if NTSCORP decided, as a matter of policy, it wished to convene a meeting of the Gomeroi native title claim group to consider that matter, her Honour was willing to lend the authority of the Court to that decision to overcome the possibility of its implementation being frustrated by the Applicant or its new lawyers.

16    A number of important conclusions flow from this summary. First, and most obviously, the orders of the primary Judge primarily served to facilitate the implementation of a policy decision by NTSCORP. While that decision was undoubtedly affected by the view NTSCORP took about the authorisation of the Gomeroi Applicant, as a policy decision, it was essentially concerned with NTSCORP’s internal machinations. Further, while NTSCORP is a respondent party to the Gomeroi People’s substantive proceeding, the orders were not sought, nor directed to, its role as a party in this proceeding. Secondly, and most importantly, the orders were not directed to resolving an existing dispute in this proceeding about the authorisation of the Gomeroi Applicant. That is so because the only matter advanced by NTSCORP to attempt to show the existence of such a dispute, namely the expectation expressed in resolution 10(e) (the first matter above), was dismissed by the primary Judge. Furthermore, no other matter was advanced by NTSCORP at either hearing and no evidence was produced by it either prior to the 10 March 2015 hearing, or, more importantly, between that hearing and the 13 May 2015 hearing, to attempt to establish that such a dispute existed. If such evidence had existed, I have little doubt that it could, and would, have been produced. After all, the primary Judge was told there were around 400 active members in the Gomeroi native title claim group and there was a two month period between the dismissal of NTSCORP’s interlocutory application on 10 March 2015 and the directions hearing on 13 May 2015 when such evidence could have been gathered.

17    Thus, when her Honour came to make the orders on 13 May 2015, the only matter under active consideration was the facilitation of NTSCORP’s policy decision to convene a meeting of the Gomeroi native title claim group. Even on that matter, beyond speculation from NTSCORP, there was, in my view, no evidence that Mr Hegney, or the Gomeroi Applicant, might attempt to frustrate any attempts by NTSCORP to convene that meeting. In this respect, Mr Hegney’s letter to NTSCORP warning that NTSCORP should not contact its former client, the Gomeroi Applicant, was, in all the circumstances, unexceptional. I do not consider it provided evidence that Mr Hegney or the members of the Gomeroi Applicant might attempt to act in that way. Again, if there was a real prospect of that occurring, I have little doubt the evidence of it could and would have been gathered in the two months adjournment referred to above.

18    In summary, therefore, there was no evidence before the primary Judge of any current dispute about the authorisation of the Gomeroi Applicant within the Gomeroi native title claim group, or the existence of any other issue which was likely to have an impact on the conduct of the Gomeroi People’s substantive proceeding. It would have been different, if, for example, there were some basis for concluding that the Gomeroi People’s proceeding may have been stifled if a meeting of the native title claim group were not called, such as arose in Doctor on behalf of the Bigambul People v State of Queensland (No 2) [2013] FCA 746 at [66]–[68], particularly at [67]. In the absence of any evidence to that effect, I do not consider there was anything to support her Honour exercising the jurisdiction of the Court under s 81 of the NTA. Put differently, the orders under appeal, directed, as they were, to facilitating NTSCORP’s policy decision, did not, in my view, serve any purpose in, or related to, the Gomeroi People’s proceeding.

19    This appeal must therefore be allowed.

Associate:    

Dated:    30 May 2016

REASONS FOR JUDGMENT

BARKER J:

20    Just before Christmas 2011, a native title determination application – or claimant application – was made on behalf of the Gomeroi People claim group pursuant to the Native Title Act 1993 (Cth) (NTA).

21    At that time, the applicant, comprised of some 18 individuals who were authorised by the claim group to make the claimant application, engaged NTSCORP Limited or its retained solicitor, Mr Robert James Powrie, to conduct the proceeding and Mr Powrie was nominated as solicitor on the record in the proceeding.

22    At material times, NTSCORP was the native title representative body (NTRB) under the NTA for the State of New South Wales, within which area the land and waters the subject of the claimant application were situated. Under the NTA, its functions included facilitation and assistance functions (s 203BB) and dispute resolution functions (s 203BF).

23    The applicant was initially authorised to make the claimant application at a meeting of the claim group in June 2011. Then, and at all subsequent material times, s 62A of the NTA provided:

In the case of:

(a)     a claimant application; or

(b)     a compensation application whose making was authorised by a compensation claim group;

the applicant may deal with all matters arising under this Act in relation to the application.

Note: This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.

24    Nearly two years later, on 10 and 11 May 2013, a further meeting of the claim group was held at which the following relevant resolutions, resolution 5 and resolution 10, were passed:

PRIVILEGED AND CONFIDENTIAL

SUMMARY OF RESOLUTIONS

Gomeroi People Native Title Claim Group Meeting

Tamworth West Leagues Club

10-11 May 2013

Resolution #5 – Retention of NTSCORP Services and Legal Representation

The Gomeroi People native title claim group resolve to continue to retain the services of NTSCORP Limited and the legal practice funded by NTSCORP Limited in relation to the Gomeroi People’s native title determination application and related future acts processes on the basis that they act at all times in accordance with the instruction of the Gomeroi native title claim group and Applicants.

Resolution #10 - Authority and Role of the Applicant

The Gomeroi People native title claim group acknowledge the authority and responsibilities of the Applicant as set out in the Native Title Act 1993 (Cth).

The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of a personal interest. These expectations include:

(a)    The Applicant must do all things necessary to implement the resolutions and decisions of the Gomeroi People native title claim group meeting and must not act inconsistently with those resolutions and decisions;

(b)    The Applicant must not disclose to third parties who are not Gomeroi information which is confidential to the Gomeroi People native title claim group;

(c)    The Applicant must not amend, resolve, have listed for trial or discontinue the native tit1e application without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;

(d)     The Applicant must not execute any future act agreement, Indigenous Land Use Agreement or any other agreement that has the effect of extinguishing, impairing or otherwise affecting native title or confirming the prior extinguishment, impairment or effect on native title in the area under claim, unless they are expressly authorised by a resolution of the Gomeroi People native title claim group;

(e)     The Applicant may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application (NSD2308/2011) and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;

(f)     The Applicant must not execute any agreement conferring benefits or obligation on Gomeroi People, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising it to do so;

(g)     The Applicant may not establish a Corporation or other legal entity to hold benefits on behalf of the Gomeroi People native title claim group without first obtaining a resolution of the native title claim group specifically authorising it to do so.

Any person comprising the Applicant may be replaced for acting contrary to these expectations and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.

(Emphasis added.)

25    Notwithstanding the “expectation” recorded in resolution 10(e) concerning the retention of NTSCORP or Mr Powrie (the “Legal Practice funded by NTSCORP”) as the applicant’s lawyers, and without obtaining a resolution of the claim group authorising it to do so, the applicant engaged another solicitor in relation to the conduct of the proceeding. On 20 February 2015, a form 5, notice of change of solicitor, was filed by Sam Hegney, Solicitors, in the Court under the Federal Court Rules 2011 (Cth).

26    On 27 February 2015, NTSCORP filed an interlocutory application, signed by Mr Powrie as “solicitor for the Applicant” and addressed “To Gomeroi People”, seeking the following orders:

(1)    That the form 5, notice of change of solicitor, filed on 20 February 2015, by Sam Hegney, Solicitors be uplifted and returned to Sam Hegney, Solicitors.

(2)    That Mr Powrie be reinstated as solicitor on the record.

(3)    Such other orders as the Court deemed fit.

27    NTSCORP’s application came before the primary judge (Jagot J) on 10 March 2015. Following legal argument, her Honour ordered as follows:

1.    The interlocutory application dated 27 February 2015 be dismissed.

2.    Leave be granted to NTSCORP Ltd to file and serve on Sam Hegney, Solicitor, proposed directions, if any, to facilitate a meeting of the Gomeroi People to determine future legal representation, by 30 April 2015.

3.    The proceeding be listed for directions at 9.30am on 13 May 2015.

4.    Leave be granted to NTSCORP Ltd to request an earlier listing date in the event that the proposed directions are filed and served before 30 April 2015.

28    Pursuant to the terms of that order, on 13 May 2015, following further legal argument, the primary judge made the following further orders:

1.    NTSCORP facilitate a 2 day claim group meeting of the Gomeroi People on, or as soon as possible after, 12 and 13 May 2015 to consider resolution 10(e) of the resolutions carried at the meeting of the claim group in May 2013.

2.    NTSCORP shall engage the services of an independent facilitator to conduct the meeting and independent legal advisor to provide advice to the claim group regarding any issues arising during the course of the meeting.

3.    NTSCORP shall send meeting notices to the claim group and ensure appropriate notices are published.

4.    NTSCORP shall undertake its usual community facilitation functions with members of the claim group prior to the meeting to ensure people are appraised of the reason for the meeting.

5.    NTSCORP is to notify the Registrar of the arrangements for the meeting by 24 July 2015.

6.    Vacate the directions hearing of 20 July 2015.

29    The applicant, now the appellant, by notice of appeal filed 4 November 2015 by Sam Hegney, Solicitors, appeals from all of the orders made by the primary judge on 13 May 2015, pursuant to leave to do so granted by Rares J on 14 August 2015, and seeks to set them aside, on the following grounds:

1.     The Court lacked power under the Native Title Act 1993 to make the order dated 13 May 2015.

2.     In the circumstances that NTSCORP was not a party to the proceedings, nor did it represent a party, nor have standing in the proceedings, the Court erred in:

a.     Allowing NTSCORP to participate any further in the proceedings, after dismissing its motion of 27 February 2015;

b.     Considering whether or not to make the proposed orders filed by NTSCORP on 21 April 2015;

c.     Allowing NTSCORP to make submissions to the Court on 13 May 2015.

3.     In the circumstances that no order of the Court is required for NTSCORP to convene a meeting of the claim group under the Native Title Act 1993, the Orders have no utility or legal effect.

4.     The Court’s orders of 13 May 2015, were premised on a legal error which was that the Gomeroi people claim group have power, by a majority vote, to direct the Applicant as to its choice of legal representative.

30    At the hearing of the appeal, the appellant abandoned grounds 2 and 3 of the notice of appeal.

31    Two issues therefore fall to be decided:

(1)    whether, in the circumstances as they then existed, the primary judge was possessed of the power to make the orders that she made on 13 May 2015; and

(2)    whether the orders were premised on the understanding, which was a legal error, that the claim group, by a majority vote, could direct the applicant as to its choice of legal representative.

The primary judge’s decision

32    When the interlocutory application of NTSCORP came on for hearing on 10 March 2015, counsel drew her Honour’s attention to resolutions 5 and 10 and, in particular, 10(e). Minutes of relevant claim group meetings were also in evidence before her Honour. She also received a copy of a letter from Sam Hegney, Solicitors, to NTSCORP dated 30 January 2015 which advised they acted for the applicant, enclosed an authority signed by 16 of the 18 authorised persons, requested transfer of the file, and reminded NTSCORP of “Solicitor’s Rule 3 forbidding a solicitor to contact the client of another solicitor. Therefore do not contact any of the applicants, unless by written permission, which is hereby withheld”.

33    Counsel confirmed that the essence of the submission being made by NTSCORP was that there had been no meeting of the claim group authorising the applicant to terminate the services of NTSCORP, as required by resolution 10(e). On that basis, it contended that the form 5, notice of change of solicitor, should be uplifted and Mr Powrie reinstated as solicitor on the record.

34    Counsel for NTSCORP emphasised the importance of resolution 10 in the case of a “very large” claim group such as the Gomeroi People claim group.

35    The primary judge immediately noted that resolution 10 was about “expectations”, as opposed, she said, “to things that were necessarily legally enforceable”.

36    Counsel nonetheless submitted that the use of the term should be read as a condition of the retainer, in that the applicant could not do things proscribed without claim group authority.

37    Her Honour, by reference to the last paragraph of resolution 10, which indicated that any person comprising the applicant could be replaced for acting contrary to the stated expectations, observed that if the claim group were concerned about a decision made, there was capacity to replace the applicant. Her Honour said:

So in one sense, the solution to this isn’t me making these orders. In one sense, I’m not even sure I can make these orders. The solution is, do the Gomeroi people want to meet and say the applicants have acted contrary to their expectations.

38    Counsel for NTSCORP nonetheless pressed the submission that the central question was whether or not the applicant had terminated the retainer of NTSCORP and Mr Powrie as its principal legal officer.

39    In response to the submission by counsel that, in the circumstances, Mr Powrie remained the solicitor on the record, her Honour observed:

Well, it would be overtaken on its face, leaving aside this dispute. It would be overtaken by the notice of change of solicitor.

40    When counsel for NTSCORP again pressed the submission that there could be no termination of NTSCORP until the applicant obtained a resolution of the claim group specifically authorising it to terminate, the primary judge again referred to the terms of the authorisation as an “expectation”, and said:

That’s the problem, isn’t it? In … it’s an expectation, and if they feel that their expectation hasn’t been fulfilled, and they’re going to have to get together and have a meeting and say to the applicant you’re not acting in accordance of the – the Gomeroi People’s instructions, and accordingly, you either do that or we get rid of you as an applicant.

41    Her Honour added that the problem in reading the expectation as a condition of their retainer was that, in theory, Mr Powrie (personally) could come along and say that the applicant was not doing the right thing and seek relief in relation to matters in issue.

42    After further argument, her Honour stated:

That brings me back to my – the – the solution to this if the claim group don’t want Sam Hegney, they’re going to have to get together and resolve to get rid of him.

43    Following further submissions, her Honour rejected the express submission that the applicant could only terminate the retainer of NTSCORP with the authority of the claim group, observing:

I don’t think that’s what the resolution – I think the solution – I really – when you read the whole of this – see, any person – look at the last sentence:

Any person comprising the applicant may be replaced for acting contrary to these expectations and exceeding the authority.

That’s the solution. If any – if the claim or part of the claim group think that this – that the appointment of – the termination of NTSCORP and the appointment of Sam Hegney is without authority, and a bad thing, and therefore should be undone, then I think they have to convene a meeting. I don’t think the solution is for me to say, in the face of the evidence, that the – the people who are the applicant have appointed Mr Hegney, so ---

44    Counsel for NTSCORP, referring to the power to replace an applicant under s 66B of the NTA, submitted that that was not necessarily the solution, where a “claim group is at disjunction with the applicant”.

45    In response to that submission her Honour stated:

Well, I don’t know that they are at disjunction with the applicant, because this is – this the difficulty you’ve got. This is not the Gomeroi People coming to me to say –this is – this is Mr Powrie.

Her Honour then added – “it’s NTSCORP”.

(Emphasis added.)

46    In response to counsel’s further submission that it was the claim group, pursuant to the “conditions” of authorisation by which they authorised the applicant, her Honour responded that she did not really know, “sitting here today”, what the actual claim group wanted. She added that the only way she could know would be following a meeting of the claim group. Her Honour acknowledged that the claim group had expressed their views in 2013 by making the resolutions, but added that she did not know what they wanted “here in 2015”.

47    In the result, it is plain that it was not contended before her Honour – indeed it expressly was not contended – that the applicant, by 16 of the 18 named applicants, could not, by majority, terminate the retainer of NTSCORP/Mr Powrie and instruct Sam Hegney, Solicitors, to be its solicitor on the record. The only question put by NTSCORP was whether the expectation in resolution 10(e) should be read as a condition of their retainer which provided an impediment to the applicant so acting. In that regard, her Honour plainly did not accept that submission.

48    The primary judge concluded this dialogue with counsel for NTSCORP by stating:

HER HONOUR: … the only thing I would be willing to do is to somehow put in place arrangements so that the fact that Mr Hegney doesn’t consent to a solicitor contacting what he calls ‘his clients’ somehow be got round so that there can be a meeting of the native title claim group. I’m willing to make some orders that make it possible for the Gomeroi people to meet and for NTSCORP to do practical things that allow a meeting of the Gomeroi people to take place, then the Gomeroi people can decide. They can decide, ‘We’re going to go with Mr Hegney,’ or ‘We’re going to go with,’ – because that’s what should have happened anyway.

So I’m very – I just don’t think that the answer to this problem is making orders 1, 2 and 3 because I really – at the moment Mr Hegney is on the record, but I can see that there may be a practical issue. There should be a meeting of the – if they – people want it, of the Gomeroi people and then they get to decide. That’s the solution to this and I will make whatever directions are seen to be appropriate to facilitate such a meeting occurring if there’s any risk that 16 people or Mr Hegney are going to stop – by whatever powers they’ve got – a meeting occurring. So that’s what I’m willing to do.

MR GREGORY:    Yes, your Honour.

HER HONOUR: I’m not willing to make the orders in the interlocutory application, though. So I don’t know what directions I’m willing to make in terms of substance, but I’m happy to give NTSCORP an opportunity to think about what direction should be – or whether they need them; I don’t know. I just don’t understand the practicalities of getting a meeting together - - -

MR GREGORY:     Well - - -

HER HONOUR:    - - - or how it happens. I just don’t know all that.

MR GREGORY:    Yes. I think that would be appropriate, your Honour. I mean, it’s obviously very difficult with such a large claim group and access to the applicants will obviously be important, but - - -

HER HONOUR: That’s what I – so I would be minded to dismiss the interlocutory application, but grant leave for a set of directions to be filed and served by NTSCORP to facilitate a meeting of the Gomeroi people.

(Emphasis added.)

49    When counsel for the applicant began to make submissions, the primary judge made it clear that what she was saying was that she was going to “dismiss the application” to reinstate Mr Powrie as solicitor on the record.

50    So far as the proposal by the primary judge to give NTSCORP “the right … to call a meeting”, as counsel for the applicant put it, and sought to challenge that proposition, the primary judge referred to resolution 5, to the effect that the claim group had earlier resolved to continue to retain the service of NTSCORP and the legal practice funded by NTSCORP, and indicated she would give leave to NTSCORP to file and serve on Sam Hegney, Solicitors, a set of directions to facilitate a meeting of the claim group.

51    Her Honour then formally dismissed NTSCORP’s interlocutory application, but granted leave to NTSCORP to file and serve proposed directions to facilitate the meeting she had in mind to determine future legal representation.

52    Her Honour added that she was not saying that NTSCORP had to convene such a meeting, indeed it did not have to. But if it did, the directions would apply.

53    On 13 May 2015, when the matter came back before the primary judge to consider proposed directions, different counsel appeared on behalf of the applicant and submitted there had not been the opportunity on 10 March 2015 to make submissions about the orders regarding the meeting. Counsel questioned whether such orders could be made at the behest of NTSCORP, which was not a party to the proceeding and did not represent the applicant.

54    Counsel also pressed a contention concerning the utility of any such orders in the light of apparent alternative plans for a claim group meeting to be organised in any event.

55    Counsel further argued, however, that if the Court were to make an order to facilitate a meeting to determine future legal representation, that could be taken as a determination by the Court that the claim group had the power to direct the applicant as to who its legal representatives were.

56    To that last proposition, the primary judge indicated that that was the issue that the minutes and resolutions gave rise to. Her Honour added:

There was, obviously, an argument that that’s true that that’s what they intended … [t]hat’s the point. That’s why I’m saying to them to have a meeting. If they don’t want that power, then they don’t reserve it to themselves. If they do, they can reserve it to themselves, so that’s the whole point.

57    Counsel pressed the argument that it would be a remarkable thing to find that people other than the applicant had the power to decide who the applicant’s legal representative was; to which the primary judge responded that it would depend on the scope of the authority, observing:

So the scope of the authority was ambiguous. That’s why we’re here.

58    To a submission by counsel that the primary judge had not made a positive ruling that the claim group did have the power to determine who their representative should be, her Honour added:

But that’s for them. If they want to authorise the applicant but the applicant is only authorised on the basis that X is the solicitor on the record, that’s the authorisation. So that’s entirely a matter – that’s why the meeting is being held.

59    After further submissions and exchange concerning the power of a claim group to instruct an applicant as to who its legal representative should be, counsel for the applicant again expressed the concern that the form of order made authorising NTSCORP to hold a meeting, could be taken to indicate that the Court had formed a view and had made a determination that it was open to claimants to dictate who the legal representative engaged by an applicant should be. Counsel submitted that it would be premature for the Court to decide that and it would be better, if there were to be orders about a meeting, that the orders simply gave directions to facilitate the holding of a meeting and that it be silent as to what the meeting could do. At that point, the purpose of the meeting, stated in the proposed orders of NTSCORP, included “reauthorisation” of the applicant.

60    In those circumstances, the question on 13 May 2015 appeared to become more about the purpose of any meeting, rather than the power of the Court to require a meeting on any terms; although counsel for the applicant restated that the primary position was that “we don’t want to see any orders made”; suggesting, however, that, if orders were to be made, they should be in a less prejudicial form than proposed.

Did the Court lack power under the NTA to make the order dated 13 May 2015?

61    That the NTA is legislation of an historic nature that was intended to provide, as its Preamble states, a “special procedure” for the just and proper ascertainment of native title rights and interests, is well understood.

62    The Preamble relevantly adds that it is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation. It does this by providing for NTRBs.

63    The objects of the NTA, stated in s 3, include the main object in para (c), “to establish a mechanism for determining claims to native title”.

64    Division 1 of Pt 3 of the NTA makes provision for applications to the Federal Court in relation to native title and compensation. Section 61 deals with native title and compensation applications. Part 4 deals with determinations of the Federal Court. Section 81 confers exclusive jurisdiction on the Federal Court to deal with applications filed in the Court that relate to native title.

65    Prior to amendments made to the NTA by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act), there was no requirement for a native title determination application to be authorised by any prescribed statutory process, such as s 251B; nor was there any express reference to the “applicant”.

66    Prior to those amendments, by s 61(1) and the Table that then governed the making of a native title determination application, “Persons who may make application” were described as a person or persons “claiming to hold the native title either alone or with others”.

67    A native title determination application, such as the claimant application filed here, is now to be made, as para (1) of the Table in s 61 states, by:

A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

68    Section 251B of the NTA states what it means for a person or persons to be authorised by all the persons in the native title claim group, as follows:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)     where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)     where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

69    Both by para (1) of the s 61 Table and s 61(2)(c), the person who made the application or the persons jointly, is the “applicant”.

70    Section 61(2)(d) expressly provides that none of the other members of the native title claim group is the applicant.

71    Section 253 of the NTA complements these provisions and provides that “applicant” has a “meaning affected by subsection 61(2)”. The main import of this definition, and the use of the expression “affected by”, suggests that it is not open to argue, as perhaps it had been prior to the 1998 Amendment Act, that the claim group was the “applicant” for the purposes of the NTA, or for the Federal Court of Australia Act 1976 (Cth) (FCA Act) or Rules made thereunder.

72    It is in this context that one comes to s 62A of the NTA, which relevantly deals with the power of the applicant in the following terms:

In the case of:

(a)     a claimant application; or

(b)     …

the applicant may deal with all matters arising under this Act in relation to the application.

Note:     This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.

73    It may be said, therefore, to be beyond debate that the “applicant” as defined, for the purposes of the NTA, is quite separate from the claim group (even though the persons authorised to be an applicant must also be members of the claim group).

74    The reasons for having a designated “applicant” for a claimant application seem clear. Without such a designated applicant, dealings between those who brought a claim and third parties, including a legal representative, might prove difficult or be productive of accountability concerns.

75    Prior to the 1998 Amendment Act, s 31 created a right to negotiate, requiring the “Government party” to negotiate in good faith with the “native title parties”. By s 253 of the Act as originally enacted, “native title party” had the meaning given by s 29(2)(a) and (b) and s 30. Thus, in relation to a native title determination application, any “registered native title claimant” was a “native title party”. In turn, the expression “registered native title claimant” under s 253, meant a person whose name appeared on the Register of Native Title Claims “as the person who is taken to be the claimant in relation to the land or waters”. Under s 66(1) as originally enacted, once accepted under s 63, the Registrar of Native Title Claims was, amongst other things, required to record details of an application in the Register of Native Title Claims. In short, the person or persons who claimed to hold the native title, either alone or with others, was taken to be the “claimant” who, under s 31, enjoyed the right to negotiate.

76    The 1998 Amendment Act, by the introduction of a formal “applicant”, who was “authorised” under s 251B of the NTA, was calculated to make clear precisely who the applicant was both for the benefit of the claim group and for third parties. It was also calculated to guard against the possible abuse of the right to negotiate procedure by registered claimants in those cases where the claim was made on the basis the claimants held native title with others, but who were not specifically authorised by the others and failed to account to them for their actions. Section 31, after the 1998 Amendment Act, empowered the applicant, as the “registered native title claimant”, and so “native title party”, to be a “negotiation party”: see ss 29(2)(b)(i), 30A, 31, 253.

77    Section 62A, in this regard, is intended to lay out the metes and bounds of the power of an applicant. It is not an unlimited power, however. It enables the applicant to “deal with all matters arising under this Act in relation to the application”. The relevant circumscribing expressions are “matters”, “arising under this Act” and “in relation to the application”. As the note to s 62A states, the section deals only with claimant applications or compensation applications. This helps to give meaning to the expression “in relation to the application”. Thus, an applicant is not authorised to make an Indigenous Land Use Agreement (ILUA), to which subdivs B to E of Div 3 of Pt 2 of the NTA apply. The result is that an ILUA needs to be approved under those other provisions of the NTA by the claim group, not simply by an applicant, although it is often considered that an applicant may well be able to negotiate the terms of an ILUA subject to its approval by the claim group. By contrast, an agreement made under s 31 may be made by the applicant alone. See generally Justice Darryl Rangiah and Justin Carter, “The Role of the ‘Applicant’ in Native Title Disputes” (2013) 87 ALJ 761.

78    The Explanatory Memorandum to the Native Title Amendment Bill 1998 (Cth), at [25.41], says very little about the nature or extent of the power of an applicant, save largely to repeat the terms of s 62A. It does, however, state that an example of a matter that an applicant could deal with, “would be attending a mediation conference convened under section 86B”. It also adds:

This ensures that all those who deal with the applicant in relation to matters arising under the NTA can be assured that the applicant is authorised to do so.

79    As a result, there can be little doubt that the power of the applicant includes the power to instruct lawyers to act on behalf of the applicant in making and maintaining a claimant application.

80    However, in my opinion, the terms of s 62A of the NTA do not mean that, in authorising the person or persons to be the applicant, under s 251B, the claim group may not limit the authority of the applicant effectively to act on its behalf, if it so wishes.

81    The primary requirement under s 251B(a) or (b), is that the claim group “authorise a person or persons to make a native title determination application … and to deal with matters arising in relation to it”. There is, in my view, no reason why the power to authorise should not include the power to authorise conditionally.

82    For it to be suggested that the claim group has only two choices, to authorise an applicant without limitation on authority or to not authorise the applicant at all, would be to subvert the otherwise clear understanding to be drawn from the terms of ss 61, 62, the Form 1 application, and also, as discussed below, the terms of s 66B, which enables an applicant to be replaced by the authority of the claim group, that an applicant’s authority to act and to continue to act is subject to the claim group’s ultimate control.

83    In this regard, s 66B of the NTA deals expressly with the question of replacing an applicant and by subs (1) and (2), provides the following process:

Application to replace applicant in claimant application

(1)     One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)     one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)     the person consents to his or her replacement or removal;

(ii)     the person has died or become incapacitated;

(iii)     the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)     the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)     the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note:    Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

Court order

(2)     The Court may make the order if it is satisfied that the grounds are established.

(Emphasis added.)

84    It may be seen that, by para (1)(a)(iii), an applicant may be replaced on the basis that the relevant person or persons are no longer authorised by the claim group to make the claimant application and to deal with matters arising in relation to it. It follows, under that ground, that the claim group may, for whatever reason motivates it, remove the current authorisation of an applicant and invest another applicant with the relevant authority to make the application and deal with matters arising in relation to it.

85    Further, by para (1)(a)(iv), the applicant may be replaced on the basis that the relevant person or persons has “exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it”.

86    It will be appreciated that, while any member or members of the claim group may make the application to replace an applicant, by virtue of s 66B(1)(b), the Federal Court may not make the replacing order unless that member or those members seeking the order are authorised by the claim group “to make the application and to deal with matters arising in relation to it” – the “application” in question, in a case such as the present, being the primary claimant application.

87    Thus, s 66B is premised on an understanding that individual members of a claim group cannot successfully agitate for the replacement of an applicant without the ultimate authority of the claim group itself.

88    For present purposes, the significance of s 66B(1)(a)(iv) is that it recognises the power of the claim group, when initially authorising the applicant, to limit the authority given to the applicant to make a claimant application and to deal with matters arising in relation to it.

89    On the face of it, by resolution 10, the claim group placed limits on the authority of the applicant in relation to the engagement of lawyers to run the claim. That resolution, and resolution 10(e) in particular, did not, and did not purport to, comprise a term of the contract of retainer made by the applicant with NTSCORP/Mr Powrie.

90    On the face of it, the limitation in resolution 10(e), while expressed in terms of “expectation”, made it clear to the applicant that it had a limited authority on the question of a change of lawyer, which, if not met, would mean it had exceeded the authority given to it by the claim group and was liable to be replaced as applicant under s 66B – should the claim group (according to the relevant voting procedure prescribed by s 251B) take a dim view of its conduct.

91    I consider, therefore, and with respect, that the primary judge was correct to accept, in the course of argument with counsel on both 10 March 2015 and 13 May 2015, that it would be open to the claim group, under s 66B, to authorise the replacement of the applicant for exceeding the authority that the claim group had given to the applicant, having regard to the materials then before the Court.

92    Similarly, the remarks made by the primary judge to the effect that the resolution of any dispute as to who should be the solicitor on the record for the applicant could be resolved by the claim group by the s 66B mechanism, were also correct. Indeed, to be “66B’d” is a well understood concept amongst applicants and communities who are involved in claimant applications.

93    The only question on this appeal is whether, in the circumstances as they prevailed on 10 March 2015 and 13 May 2015, once the primary judge had formed the view that the contract of retainer between the applicant and NTSCORP/Mr Powrie was not subject to a “condition” concerning approval of the claim group to a change of solicitor, and dismissed NTSCORP’s interlocutory application, there was any jurisdiction in the Court to make the orders facilitating the calling and conduct of a meeting of the claim group by NTSCORP for s 66B purposes.

94    NTSCORP submits that, having regard to the Court’s jurisdiction under s 81 of the NTA to hear and determine native title applications generally, and its power under s 23 of the FCA Act to make such orders as it thinks appropriate in relation to matters in which it has jurisdiction, and also the power it has under R 1.32 of the Rules to make any orders it considers “appropriate in the interests of justice”, it was empowered to make the orders that the primary judge made on 13 May 2015. The Court’s case management powers and s 37M of the FCA Act are also referred to by NTSCORP.

95    It contends that the orders made by the primary judge do not purport to usurp the statutory functions conferred on an applicant under s 62A and merely require that NTSCORP convene a meeting to consider resolution 10(e). It submits that, in circumstances where the primary judge expressed “very real concerns” as to whether the claim group wanted their representative to change solicitors, it was appropriate for the primary judge to make those orders, and that s 62A cannot be read as expressly or impliedly ousting the power of the Court under s 23 or in the exercise of an implied incidental power, or more generally, to regulate the proceeding. Section 23, it is submitted, in particular, was enlivened.

96    The appellant, however, submits that the NTSCORP submissions do not correctly characterise the statements made by the primary judge, and that there was, and is, no evidence of the claim group expressing any concern about the change of the legal representative before her Honour.

97    When it comes to the exercise of the Court’s power under s 23, that power, as has been often recognised, enables the Court to make orders that serve the effectual exercise of its jurisdiction, including to prevent any abuse or frustration or interference with its processes: Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at [35]; [1998] HCA 30; Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 243-244; [2001] HCA 63; AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 4) [2006] FCA 1050 at [7]. This may be referred to as an implied jurisdiction, or power.

98    The question here is not whether the Court has the jurisdiction to make orders, in an appropriate case, of the kind now under challenge, but whether its jurisdiction or power to do so was enlivened in this case.

99    The primary judge, in that regard, appears initially, on 10 March 2015, to have considered orders to facilitate the holding of a claim group meeting were appropriate because of the statements made in the letter from Sam Hegney, Solicitors to NTSCORP dated 30 January 2015, referring to proper practice and advising NTSCORP/Mr Powrie not to contact “any of the applicants”, and withholding permission in that regard to do so. As noted, at [48] above, her Honour expressly said that she would be willing to put in place some arrangements “so that the fact that Mr Hegney doesn’t consent to a solicitor contacting what he calls ‘his clients’ somehow be got round so that there can be a meeting of the native title claim group”. Her Honour considered that there may be a “practical issue”, which may reasonably be interpreted to mean that there was a risk that the 16 of the 18 persons within the applicant who had approved Mr Hegney acting for the applicant, or Mr Hegney, might seek to prevent a meeting occurring.

100    In my view, it is on the strength of that letter, when taken with the terms of resolution 10(e), that her Honour considered the Court’s jurisdiction or power to make the challenged orders was enlivened.

101    The orders made on 13 May 2015, did not merely facilitate, but required the holding of a claim group meeting organised by NTSCORP, by reference to its functions as a NTRB. In my view, the Court’s jurisdiction to make the orders was not enlivened in the circumstances as they then existed.

102    The difficulty with comprehending that the Court had jurisdiction to make such orders in the circumstances as they then existed, is that, as the primary judge said, there was nothing before the Court to indicate what the current views of the members of the claim group were, so far as the question of the applicant’s conduct in apparent excess of authority was concerned. There was no basis to doubt the power of the applicant, under s 62A, to change lawyers. And there was no basis to think that the claim group would wish to cavil with the applicant’s decision. Only NTSCORP were complaining, and its complaint was on the basis of breach of the lawyer’s retainer – a false argument.

103    There was no evidence before the Court to suggest that there was currently any issue between the claim group as a whole, or even certain members of it, about the appropriateness of the decision of the applicant to change lawyers.

104    The most that could be said was that, in light of resolution 10(e), there might possibly be an issue and that the advice given in the letter of Sam Hegney, Solicitors to NTSCORP not to contact “the applicants”, pointed to a potential demarcation dispute. However, all that this evidentiary material added up to, in my judgement, was that there had been a change of lawyer at the election of the applicant and that NTSCORP/Mr Powrie was concerned at that development. The expression of any other concern was entirely speculative.

105    There were no circumstances, in my view, that then gave the Court jurisdiction to make orders designed to prevent any abuse, even any potential abuse, of the processes of the Court, because the question of abuse was entirely speculative. There was no proper foundation for considering that the integrity of the process by which the claim group might act under s 66B was compromised. The lawyer’s letter was just a lawyer’s letter pointing out the obvious.

106    I do not doubt that, depending on circumstances, the Court may well be apprised of a jurisdiction and power to make orders that bear upon the question of appointment of solicitors and the calling or conduct of a claim group meeting for the purposes of s 66B of the NTA. In this case, however, I do not consider that, in the circumstances as they prevailed at material times, there were any circumstances that enlivened the Court’s jurisdiction to make relevant orders under s 23 of the FCA Act or, for that matter, by reference to any “inherent jurisdiction” to make case management orders (State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394 at [13]-[16] (Allsop P); [2011] NSWCA 200), or by reference to s 37M of the FCA Act or R 1.32.

107    NTSCORP further submits that, in exercising the jurisdiction conferred by s 81 of the NTA to hear and determine applications filed in the Court that relate to native title, the Court has the power to order a NTRB, and so NTSCORP, to carry out statutory functions conferred under s 203BC and s 203BF of the NTA. It is submitted that NTSCORP sought the authority of the Court to aid in the exercise of those functions. The submission is made that the situation is analogous to a trustee seeking orders from the Court to perform their functions. In that regard, it is submitted that it is not to the point that NTSCORP could itself call a meeting of the claim group without the order of the Court.

108    The analogy of a trustee is, like so many analogies raised in legal argument, of limited utility. Various responses are available, including that made on behalf of the appellant, that the applicant, being the trustee, by analogy, was not seeking instructions as it already held full and unfettered authority to proceed as it saw fit pursuant to s 62A of the NTA. No issue concerning NTSCORP’s power to convene a claim group meeting was, in my view, before the Court at material times. That the claim group was being impeded, or threatened, in relation to the conduct of a meeting for s 66B purposes was not in evidence before the Court. That there was any issue in that regard was, as I have already said, entirely speculative.

109    NTSCORP, in responding to a contention made by the appellant that the relationship between the claim group and the applicant is analogous to the division of power between corporate organs, submits that the proceeding in the Court is unique and that this is an imperfect analogy and of little utility. By contrast, it submits, in native title proceedings, like in a class action under the FCA Act, the use of an applicant serves a practical purpose of selecting representatives as a proxy for the interests of the entire affected group. In that context, NTSCORP refers to Pt IVA of the FCA Act and s 33ZF, which confer broad general powers on the Court to make orders in representative proceedings under that Part.

110    While NTSCORP does not press the reference to Pt IVA powers any further, I consider this is for good reason. Plainly, those express powers under Pt IVA only apply in respect of a representative proceeding as constituted under that Part of the FCA Act. The Court’s extensive powers, exercisable at its own motion, enable it to supervise class actions in the public interest. While a native title proceeding may, by way of analogy, reasonably be compared with such a representative action, the fact is that the structure and terms of the NTA govern the process by which an applicant is authorised by a claim group to make a claimant application and the process by which a claim group may withdraw that authority or applicant status subsequently. It is this feature of authorisation, in particular, that distinguishes a proceeding under the NTA from a representative proceeding under Pt IVA of the FCA Act. Unless this authorisation process can, in some sensible way, be said to be subject to threat, the Court’s jurisdiction to make orders designed to protect the integrity of the authorisation process cannot arise.

111    In short, I do not accept the submission that because, under s 81, the Court has the power to hear and determine a claimant application made by the applicant on behalf of the claim group, the Court is thereby empowered, at large, to interfere in the applicant’s choice of solicitor to conduct the proceeding on its behalf. I accept that if there were some relevant controversy before the Court concerning the authority of the lawyers to act or the function of the claim group to deal with the applicant’s authority, the Court might have the power, under s 23 of the FCA Act, to prevent any perceived or potential abuse of the processes of the Court, and to make orders designed to quell that controversy. But, as stated above, I do not believe there was any extant controversy concerning the entitlement of the current solicitor on the record, Sam Hegney, Solicitors, to represent the applicant in the proceeding, or the claim group to exercise its functions concerning the applicant’s authority, when the primary judge made the challenged orders.

112    In short, if there is to be any change of applicant, it will have to result from the claim group exercising its undoubted statutory powers under s 66B of the NTA to withdraw the current authority of the applicant to conduct the proceeding and to replace the applicant with another. It lies in the statutory capacity of NTSCORP to lend its assistance to this process, if it be pursued. If any issues subsequently arise that properly give rise to the Court’s power to prevent an abuse of its processes, any relevant party can duly apply to the Court for relief.

113    For these reasons, I consider ground 1 of the appeal succeeds.

Were the orders of 13 May 2015 premised on a legal error that the claim group had the power to direct the applicant as to its choice of legal representative?

114    In my view, having regard to the reasons given in relation to ground 1, I consider the claim group has the power, under s 251B of the NTA, to limit the scope of the authority of an applicant, including as to the appointment of its legal representative.

115    To so find, does not, however, mean that in every case a claim group will or should so limit the authority of an applicant.

116    In this case, I do not consider that the orders of 13 May 2015 made by the primary judge, were premised on an understanding that the claim group had the power to direct the applicant as to its choice of legal representative.

117    Rather, the material order made on 13 May 2015, was that the claim group consider resolution 10(e). There was no premise to that order that the claim group might direct the applicant as to its choice of legal representative. Rather, it was an order that appears to have been made on the correct understanding that the claim group has a wide authority, under s 66B, simply to replace the applicant either generally, under para (1)(a)(iii), or because there had been an excess of authority, under para (1)(a)(iv).

118    For this reason, ground 4 fails.

Conclusion and order

119    For these reasons, I would allow the appeal.

Associate:

Dated:    30 May 2016

REASONS FOR JUDGMENT

BROMBERG J:

120    The central issue on this appeal is whether the primary judge had the power to order a native title representative body to convene a meeting of a native title claim group.

121    NTSCORP Limited (NTSCORP) is a recognised representative body and, pursuant to s 203BB(1) of the Native Title Act 1993 (Cth) (NTA), has the statutory functions of assisting those who may hold native title to make and manage native title applications. In that capacity, NTSCORP has been assisting a native title claim group (the Gomeroi People), on whose behalf a native title determination application (determination application) is advanced in this Court by 18 people (collectively, the Applicant) who had been authorised by the Gomeroi People to so advance. Mr Robert Powrie, the Acting Principal Legal Officer of NTSCORP, was the solicitor on the record acting for the Applicant. On 10 February 2015, Sam Hegney Lawyers filed a “Notice of Acting – Change of Lawyer”, giving notice that Sam Hegney of Sam Hegney Lawyers represented the Applicant in the place of NTSCORP.

122    Mr Powrie then brought an interlocutory application (interlocutory application), purportedly as solicitor for and on behalf of the Applicant, seeking these orders:

1.    That the Form 5, Notice of Change of Solicitor, filed on 20 February 2015, by Sam Hegeny [sic] Solicitors be uplifted and returned to Sam Hegeny [sic], Solicitors

2.    That Robert James Powrie be reinstated as Solicitor on the Record.

3.    Such other orders as the Court deems fit.    

123    The interlocutory application was heard by the primary judge on 10 March 2015 and an order was made dismissing that application. The primary judge made other orders including an order granting leave to NTSCORP to file and serve proposed directions, if any, to facilitate a meeting of the Gomeroi People “to determine future legal representation”. The proceeding was listed for directions on 13 May 2015. On that date, the primary judge made the following orders (Orders) which are the subject of the Applicant’s appeal:

1.    NTSCORP facilitate a 2 day claim group meeting of the Gomeroi People on, or as soon as possible after, 12 and 13 May 2015 to consider resolution 10(e) of the resolutions carried at the meeting of the claim group in May 2013.

2.    NTSCORP shall engage the services of an independent facilitator to conduct the meeting and independent legal advisor to provide advice to the claim group regarding any issues arising during the course of the meeting.

3.    NTSCORP shall send meeting notices to the claim group and ensure appropriate notices are published.

4.    NTSCORP shall undertake its usual community facilitation functions with members of the claim group prior to the meeting to ensure people are appraised of the reason for the meeting.

5.    NTSCORP is to notify the Registrar of the arrangements for the meeting by 24 July 2015.

6.    Vacate the directions hearing of 20 July 2015.

124    The appeal is brought by leave of the Court granted on 14 August 2015. The Applicant pressed only appeal grounds 1 and 4, both of which addressed what I have identified as the central issue. The Applicant contended that the Court lacked the power to make the Orders.

125    NTSCORP is a respondent to the determination application and also a respondent to this appeal. It resists the relief sought by the Applicant that the Orders be struck out. The other respondent to the appeal is the Attorney-General of New South Wales. That respondent neither opposes nor supports the relief claimed.

126    In order to address what I have described as the central issue, I need to return to the interlocutory application and identify the issue or controversy which it raised and how that issue was disposed of by the primary judge.

127    On the interlocutory application, counsel instructed by Mr Powrie contended that the Applicant had no capacity to remove NTSCORP as the Applicant’s legal representative, that Mr Powrie’s retainer had not therefore been terminated, and that, under r 4.04(1) of the Federal Court Rules 2011 (Cth), only after a retainer had been terminated could a new lawyer file a Notice of Acting. Accordingly, so it was contended, the notice filed by Mr Hegney could not be filed and an order ought be made that Mr Hegney’s notice be uplifted and returned.

128    The basis for the contention that the Applicant lacked the capacity to remove NTSCORP as its legal representative, was that a condition of the Gomeroi People’s authorisation of the Applicant to make the determination application precluded any such removal in the absence of a resolution to that effect made by the Gomeroi People themselves. Reliance was placed on Resolutions 5 and 10 made by the Gomeroi People at a meeting held on 10-11 May 2013 as follows:

Resolution #5 – Retention of NTSCORP Services and Legal Representation

The Gomeroi People native title claim group resolve to continue to retain the services of NTSCORP Limited and the legal practice funded by NTSCORP Limited in relation to the Gomeroi People’s native title determination application and related future acts processes on the basis that they act at all times in accordance with the instructions of the Gomeroi native title claim group and Applicants

Resolution #10 – Authority and Role of the Applicant

The Gomeroi People native title claim group acknowledge the authority and responsibilities of the Applicant as set out in Native Title Act 1993 (Cth).

The Gomeroi People native title claim group confers authority on the people who make up the Applicant in the expectation that they will act at all times in the interests of the Gomeroi People native title claim group and will not act in any way which is for personal benefit or in the pursuit of personal interest. These expectations include:

(a)    The Applicant must do all things necessary to implement the resolutions and decisions of the Gomeroi People native title claim group meeting and must not act inconsistently with those resolutions and decisions;

    …

(e)    The Applicant may not attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor acting on behalf of the Gomeroi People native title claim group in relation to their native title determination application (NSD2308/2011) and any future acts arising in relation to it, or engage another solicitor for those purposes, without first obtaining a resolution of the Gomeroi People native title claim group specifically authorising them to do so;

    …

Any person comprising the Applicant may be replaced for acting contrary to these expectations and therefore exceeding the authority conferred on them by the Gomeroi People native title claim group.

129    The primary judge did not publish reasons for decision in dismissing the interlocutory application. However, her Honour’s reasons are plain from her exchanges with Counsel recorded on transcript. The primary judge addressed the merits of the application and dismissed it. Her Honour dismissed the application because she was not persuaded that there was any condition upon the authorisation given to the Applicant which precluded the Applicant from removing NTSCORP as its legal representative. The primary judge reached that view because she regarded paragraph (e) of Resolution 10 as identifying an “expectation” rather than imposing any condition upon the authorisation given to the Applicant. The primary judge also expressed the view that Resolution 10 contained its own internal mechanism for dealing with a situation where the Applicant acted contrary to the “expectations” expressed therein. The solution, as her Honour saw it, was for the Gomeroi People to meet and consider whether to replace the Applicant. It would seem her Honour had in mind the final sentence of Resolution 10.

130    Having expressed the view that the Gomeroi People should resolve for themselves who should be retained as the legal representative for the Applicant, the primary judge indicated that she was minded to make orders that would facilitate NTSCORP organising a meeting of the Gomeroi People. That was ultimately reflected in the Orders made on 13 May 2015.

131    NTSCORP contended that the primary judge must have been of the view that the efficient resolution of the issue regarding authorisation and legal representation was necessary for the effective exercise of the Court’s jurisdiction. It contended that the primary judge had very real concerns as to whether the native title claim group wanted its representative Applicant to change solicitors and then said this (italics in original):

The impugned orders sought to resolve the dispute as to whether the claim group wished to retain NTSCORP as their legal representative as the terms of their initial authorisation indicated. Alternatively a meeting may endorse the subsequent decision of the Applicant to retain alternative representation notwithstanding the “expectation” expressed in the initial authorisation in resolution 10(e). The meeting could also utilise the powers conferred under s.66B which the Appellant notes at [11]-[12]. In any of these alternatives the meeting would advance proceedings by resolving a live issue relating to the ongoing authorisation of the Applicant to act in the manner it had.

(NTSCORP submissions, 22 January 2016, at [18])

132    NTSCORP has, in my view, correctly characterised the nature of the dispute that the Orders sought to resolve. One of the difficulties for NTSCORP is that the interlocutory application before the primary judge raised a different dispute to that which the Orders were directed at resolving.

133    The controversy raised by the interlocutory application was a dispute as to which of Mr Hegney or NTSCORP (through Mr Powrie) was the duly-appointed legal representative of the Applicant. That controversy was limited to the legal question of whether Mr Powrie had been validly replaced by Mr Hegney as the legal representative of the Applicant. Whilst the resolution of that legal issue involved consideration of what the Gomeroi People may have intended in relation to legal representation in making Resolutions 5 and 10 in May 2013, there was no question raised for determination by the interlocutory application as to the then-current intent of the Gomeroi People on the question of legal representation. It seems to me plain that, having resolved the question or controversy raised by the interlocutory application, her Honour then made orders directed to resolving a different question. In so doing, the primary judge ventured beyond the four walls of the controversy raised by the interlocutory application. But that did not necessarily entail her Honour exceeding her jurisdiction or her power to effectively exercise it.

134    The NTA confers upon the Federal Court jurisdiction to hear and determine an application for a determination of native title in relation to an area for which there is no approved determination of native title: ss 13(1), 61(1), 81 and 213(2). The determination application is such an application and the primary judge was empowered to hear and determine it. The Orders were made in the course of a directions hearing in that proceeding. The question arises, then, as to whether, as an incident of the exercise of the jurisdiction to hear and determine the determination application, the primary judge was empowered to make the Orders.

135    NTSCORP’s submission was that the Orders made “would advance proceedings” and were made in furtherance of the power conferred upon the Court to “regulate” the proceeding before it. It characterised the Orders as case management orders. It contended that the Orders were designed to facilitate the just, quick and cheap resolution of the proceeding. At [20] of its written submission, NTSCORP said this:

Doubt as to the terms and extent of the Applicant’s authorisation has the potential to disturb the efficiency of the conduct of native title proceedings. It would serve the overriding purpose in civil litigation as reflected in s.37M of the FCA to resolve at an early stage, issues as to authorisation and the ongoing management of the application as between the claim group and the Applicant.

136    NTSCORP accepted that the Court’s power to make the Orders was not conferred by the NTA. It relied on s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA) or what it called the Court’s “inherent power” but which is, more correctly, described as the Federal Court’s “implied power”: Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 618 (Wilson and Dawson JJ); at 623–624 (Deane J).

137    As the NTA does not provide an “exhaustive code of the available remedies”, s 23 of the FCA and the implied power of the Court can have application to the conduct of a native title proceeding: Cardile v LED Builders Pty Limited (1999) 198 CLR 380 at [33] (Gaudron, McHugh, Gummow and Callinan JJ); Electric Light and Power Supply Corporation Limited v Electricity Commission of New South Wales (1956) 94 CLR 554 at 559–560 (the Court); Bropho v Western Australia (2000) 96 FCR 453 at [32]-[33] (French J); Weribone v Queensland (No 2) (2013) 217 FCR 189 at [36] (Rares J). The more pertinent question is whether the Orders made by the primary judge exceeded the limitations upon the Court’s s 23 power or its implied power. In other words, did the Orders fall within the extent of those powers?

138    Section 23 of the FCA provides:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

139    The powers conferred on the Federal Court by s 23 of the FCA are broad but have their limits. They were considered by Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1. Their Honours said this at [35] (emphasis added) (citations removed):

The powers of the Federal Court under s 23 of its Act are powers “to make orders of such kinds, including interlocutory orders, as it ‘thinks appropriate’”, as Deane J noted in Jackson v Sterling Industries Ltd. He added:

“Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of order, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.”

140    In support of its submission as to the breadth of the Court’s implied power in the context of its case management obligations, NTSCORP relied upon the observations of Allsop P (with whom Hodgson JA and Sackville AJA agreed) in State of New South Wales v Public Transport Ticketing Corporation (No 3) (2011) 81 NSWLR 394. In that case, an application was made for a detached special counsel to be appointed to act as an independent contradictor to the State of New South Wales in relation to the court’s consideration of claims by that State for public interest immunity in relation to certain documents. Allsop P considered the possible sources of the court’s power to appoint a special counsel and made some helpful observations (with respect) about the inherent or implied power of a court in the context of obligations imposed by provisions similar to ss 37M–37P of the FCA. At [15]–[18], Allsop P said:

[15]    The inherent power subsumes the power that all courts can be seen to have: that which is incidental (or implied) to carry out their functions and to control their own processes.

[16]    The breadth of the inherent jurisdiction giving rise to legitimate judicial authority or power does not extend to the abrogation of fundamental common law rights, such as the privilege against self incrimination: Reid; or, here, public interest immunity.

[17]    A central concern in the administration of justice is fairness. It is part of the essence of the judicial function and informs the necessary character of courts—how they act and what must exist for them to be properly so described as courts: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319. Related to, and bound up with, fairness are the procedural benefits of the convenient and expeditious conduct of legal proceedings. Fairness, justice, expedition, efficiency and access to justice at a reasonable cost are, or should be, inter-related, but distinct, features of dispute resolution in civil society. Parliament has recognised this inter-relationship in the Civil Procedure Act 2005, ss 56-61, and in particular in the overriding purpose provided for in s 56(1): the facilitation of the “just, quick and cheap resolution of the real issues in dispute or proceedings”, which the court has an obligation to seek to give effect to: Civil Procedure Act, s 56(2).

[18]    Thus, the formulation of techniques and procedures that will enhance speed, or efficiency, or fairness in the resolution of civil disputes must clearly be within the power of the court; and, indeed, are necessary for the court to consider in compliance with s 56(2). Novelty is no bar to such power or duty. The trammelling of fundamental common law rights or statutory rights is.

141    Those observations may be supplemented with those made more directly about the implied power of the Federal Court. In Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd (2008) 246 ALR 113, Tamberlin, Jacobson and Edmonds JJ said this (at [20], emphasis added):

It is well established that the Federal Court has all the powers expressly or by implication conferred by the FCA Act and such powers are as incidental and necessary to the exercise of the power so conferred. The implied powers conferred on the court are no less than the inherent power of a court of unlimited or general jurisdiction. The implied power carries with it all that is necessary for the proper function of the court: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619; 71 ALR 457 at 460–1; see also VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291; 87 ALD 333; [2005] FCAFC 91 at [30].

142    Relevantly and as to the term “necessary”, their Honours said this (at [19]):

Moreover, in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; 162 ALR 336; [1999] HCA 19 at [51], the High Court (Gaudron, Gummow and Callinan JJ) observed that the term “necessary” is to be understood as identifying the power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in the legislation to which their Honours referred. Their Honours observed that in this setting, the term “necessary” does not have the meaning of “essential”; rather, it is to be subject to the touchstone of reasonableness.

143    It is sufficient to observe that whilst the Court is not “at large” and is limited by considerations of the appropriateness or reasonableness of the orders it may make, it has broad powers to make orders which facilitate the proper and efficient administration of justice. What is appropriate or reasonable will always be a question of fact and degree but the end to be served by the orders made will also have a bearing upon that question. For instance, there is likely to be wider scope for orders to be made designed to protect the integrity of a court’s processes than there may be when only the efficiency of those processes are at risk. The nature of the proceeding will also have a bearing. For reasons I will explain, the scope of the orders that may be made is likely to be wider in a representative proceeding than it is for standard inter partes litigation.

144    NTSCORP did not identify any judgment in which either s 23 of the FCA (or an equivalent provision), or the implied or inherent power of a court, had been used for case management purposes to resolve an issue as to the legal representation of a party. My own researches have not identified any judgments of that kind in relation to standard inter partes litigation. That is not surprising. Ordinarily, a court would be very slow to intervene in relation to the choice made by a party about its legal representative.

145    It is not uncommon for a court to exclude or restrict the chosen legal representative of a party from participating in legal proceedings to protect the integrity of the court’s processes. The court has an inherent jurisdiction to restrain a lawyer from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice: Kallinicos v Hunt (2005) 64 NSWLR 561 at [76] (Brereton J). Its inherent jurisdiction extends to determining which of its officers are allowed to represent parties to argue cases. This is a question concerning what is needed or may be permitted to ensure in a particular case both justice and the appearance of justice: Ismail-Zai v Western Australia (2007) 34 WAR 379 at [30]–[35]. See also Newman v Phillips Fox (1999) 21 WAR 309 at [19]–[24]. But this supervisory jurisdiction is an exceptional one and is to be exercised with circumspection and caution: Ismail-Zai at [35].

146    For the purposes of the efficiency of the conduct of a proceeding, it seems to me that extraordinary circumstances would be required in a non-representative proceeding to warrant orders compelling a party to take positive steps to resolve some impasse between it and its lawyers as to that party’s legal representation. It may well be that an impasse between an applicant and its lawyer may justify the stay or dismissal of an applicant’s application where an impasse has resulted in a want of prosecution. Conversely, an impasse of that kind between a respondent and its lawyer may justify the striking out of a respondent’s defence. But the circumstances which would make it appropriate for an order to be made compelling some positive step to be taken by a party to resolve such an issue do not readily come to mind. However, in a representative proceeding the position is different.

147    In a representative proceeding, in which an applicant brings a proceeding on behalf of another member or members of a class or a group of persons, there is a capacity for tension or discord to exist as between the representative applicant and the represented group. The fiduciary nature of the relationship between the represented applicant and the represented group may mean that the integrity and not merely the efficiency of the proceeding before the court may be at risk as a result of the conduct of a representative applicant. What is more, the representative applicant’s lawyer may have a fiduciary duty to members of the represented group and certainly has at least a duty to act in their interest: Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 at [220] (Murphy J). And, in such a proceeding, the role of the lawyer is likely to be far broader in scope that in standard inter partes litigation. There is, in a representative proceeding, a greater potential for the interests of the inactive members of the represented group to be prejudiced than there is for a person directly and actively involved in the litigation as a party.

148    Litigation in which claims are made by representative members on behalf of a class warrant a judicial approach that differs from standard inter partes litigation. The potential for prejudice to absent members is far greater and that calls for closer judicial oversight and intervention. In Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 at 408, Brennan J said this:

… it is precisely because of the flexible utility of the representative action that judicial control of its conduct is important, to ensure not only that the litigation as between the plaintiff and defendant is efficiently disposed of but also that the interests of those who are absent but represented are not prejudiced by the conduct of the litigation on their behalf.

Carnie was a representative action under the Supreme Court Rules 1970 (NSW), rather than under specific class-action legislation. If anything, the enactment of specific class-action legislative schemes would embolden courts in their exercise of judicial control. As Kirby J said in Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 at [267] (emphasis supplied) (citations removed):

… Parliament intended to arm the Federal Court with a wide and flexible armoury of powers, capable of being adapted to the particular needs and novel circumstances of representative proceedings and any matter in such proceedings. Representative proceedings are not traditional litigation; nor should they be subjected to all of the requirements of such litigation. To confine the grant of such a statutory power is incompatible with the oft-repeated statements in this Court concerning the construction of grants of such powers to superior courts. In particular, it is inappropriate to impose upon such grants of power strictures derived from earlier times and traditional powers in litigation between individual parties.

149    The same ideas as were expressed in Carnie have also been expressed in relation to class-action litigation under statutory schemes. For example, in the context of approving settlements, the following was said concerning the supervisory role of the court in Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [8] (Jacobson, Middleton and Gordon JJ), relying inter alia on Carnie (citations removed):

The role of the court is important and onerous. It is protective. It assumes a role akin to that of a guardian, not unlike the role a court assumes when approving infant compromises. In the current context, the court’s role is to protect those group members who are not represented by Levitt Robinson and whose interests may be prejudiced by their absence.

150    That statement has been adopted in the context of determining whether orders under s 33ZF of the FCA were “appropriate or necessary to ensure that justice [was] done in the proceeding”, in Blairgowrie Trading Ltd v Allco Finance Group Ltd (recs and mgrs apptd) (in liq) (2015) 325 ALR 539 at [114]–[115] (Wigney J) (emphasis supplied):

[114]    The criterion [in s 33ZF] “justice is done” also suggests that the particular issue or problem must somehow relate to the just hearing and determination of the claims, or the enforcement of the rights or subject matter in issue in the proceeding. That may involve a question of procedure, or it might involve a question involving the substantive rights and interests of the parties. A requirement that justice is done also suggests that the proposed order must be fair and equitable. That will ordinarily involve a consideration of the position of all parties: McMullin at FCR 4E–F; ALR 260.

[115]    Given the nature of representative proceedings, it will also ordinarily involve close consideration being given to the rights and interests of group members as a whole. In the context of s 33ZF, “in the proceeding” includes the vindication of claims made on behalf of all group members. And as Sackville J pointed out in Courtney (at [49]), it is appropriate, in construing s 33ZF, to recognise the unusual position of group members in a representative proceeding brought pursuant to Pt IVA. Consent is not required for a person to become a group member and, while group members may benefit from a representative proceeding, their rights might also be adversely affected since they are bound by any judgment in the proceeding unless they have opted out. In these circumstances, in considering the exercise of the power in s 33ZF, the court should be concerned to ensure that the interests of those who are absent, but represented, are not prejudiced by the conduct of the litigation on their behalf: [Carnie] at 408 … per Brennan J; Muswellbrook Shire Council v Royal Bank of Scotland NV [2013] FCA 616 at [24]. The role of the court in this respect is protective: [Richards] [2013] FCAFC 89 at [8] … . It is unlikely that an order would be appropriate or necessary to ensure that justice is done in a proceeding if the rights or interests of group members were not adequately protected, or were materially prejudiced or adversely affected by, the order.

151    The importance of judicial case management and the supervisory role of the court, particularly in the context of class action proceedings, was very recently re-iterated in Jones v Treasury Wine Estates Limited [2016] FCAFC 59 (see [23], [30], [39], and [48] (Gilmour, Foster and Beach JJ)).

152    Similar statements concerning the court’s role in class actions have been made in the United States: see, e.g., Federal Judicial Center, Manual for Complex Litigation (3rd ed., 1995) §30, at 211–12; A Conte & H Newberg, Newberg on Class Actions (4th ed., 2002) §9.12 at 327–328; Runion v U.S. Shelter (1983) 98 FRD 313 at 317–318; Liebman v J.W. Petersen Coal & Oil Co (1974) 63 FRD 684; Bernard v Gulf Oil Company (1979) 596 F.2d 1249 at 1259–1260; In re Gypsum Antitrust Cases (1977) 565 F.2d 1123 at 1127.

153    Considerations of this kind have led to orders in representative proceedings that probably would not have been made in other litigation. In Kirby v Centro Properties Ltd (2008) 253 ALR 65, Finkelstein J said (at [26]) that s 33ZF of the FCA “gives the court generous power to ensure that class actions are run fairly and expeditiously,” and agreed with an observation by Sackville J that “new procedures for representative proceedings would likely throw up novel problems that would require close supervision by the court.” His Honour considered that an independently-selected litigation committee would be the best vehicle for determining which of several class actions before him should proceed. His Honour envisaged that notice be given to all class members who could nominate themselves or other members for committee membership, following which the court’s registrar, in conjunction with the applicants’ lawyers, would finalise the membership of the committee (at [37]).

154    There is ample authority for the proposition that native title proceedings are representative proceedings: Augustine v State of Western Australia [2013] FCA 338 at [10] (Gilmour J); Levinge v Queensland (2012) 208 FCR 98 at [47] (Reeves J); Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants [2012] SASCFC 121 at [113] (Gray and Stanley JJ); Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 at [36] (Gilmour J); Roe on behalf of the Goolarabooloo and Jabirr Jabirr Peoples v State of Western Australia [2011] FCA 421 at [36] (Siopis J); Tigan v Western Australia (2010) 188 FCR 533 at [10] (Gilmour J); Ankamuthi People v State of Queensland (2002) 121 FCR 68 at [7] (Drummond J). In Levinge at [47], Reeves J said the following:

As to the latter words, viz “its native title claim”, it is important not to lose sight of the fact that these proceedings are representative proceedings. That is, the authorised applicant has commenced the proceedings on behalf of the persons who “according to their traditional laws and customs hold the common or group rights and interests comprising the particular native title” over this claim area: see s 61(1) of the NTA. Thus, while the authorised applicant had the authority to commence the proceedings and has the exclusive authority to continue to deal with them, the proceedings remain throughout those of the Gold Coast NTCG. It is its native title claim.

155    Whether the Orders were “appropriate” and supported by the power conferred by s 23 of the FCA or “necessary” and supported by the Court’s implied power, needs to be considered in the context that the primary judge was dealing with a representative proceeding. Additionally, the primary judge had before her a proceeding brought under the scheme of the NTA which recognises the potential for discord between the representative applicant and the represented group. Section 66B of the NTA provides a process for replacing the applicant in a native title proceeding including where the applicant is “no longer authorised by the claim group to make the application and to deal with matters arising in relation to it” (s 66B(1)(a)(iii)), or where the applicant “has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it” (s 66B(1)(a)(iv)).

156    The potential for discord and the need for it to be addressed in the context of the need to protect the interests of the members of the claim group is also recognised by the statutory functions given to representative bodies such as NTSCORP. Section 203BB of the NTA confers upon a representative body “facilitation and assistance functions”. Pursuant to that provision, a representative body is empowered to assist native title holders and persons who may hold native title “in consultations, mediations, negotiations and proceedings relating to … native title applications” (s 203BB(1)(b)(i)) and “any other matters relating to … the operation of this Act” (s 203BB(1)(b)(v)). A representative body is also given “dispute resolution functions”. Section 203BF provides that a representative body has the function of assisting the promotion of agreement between its “constituents” about the making of native title applications or the conduct of consultations, mediations, negotiations or proceedings about native title applications (s 203BF(1)(a)(i) and (ii)). Additionally, a representative body has the function of mediating between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings (s 203BF(1)(b)). A “constituent” of a representative body is defined by s 203BF(2) to include a native title holder or a person who may hold native title in the area in respect of which the representative body is recognised.

157    With that appreciation, it is necessary to return to the evidence before the primary judge and her Honour’s reasons for making the Orders. As a first step in any consideration of whether an order is “appropriate” for s 23 purposes or “necessary” for the purposes of the Court’s implied power, the problem in the proceeding that the order was designed to address needs to be identified. As Wigney J said in Blairgowrie Trading at [112] of the requirement in s 33ZF of the FCA, “[a]n order is unlikely to be either appropriate or necessary unless it is directed at resolving some issue or problem that has arisen or would, but for the order, arise”.

158    Though the primary judge was not satisfied that Mr Hegney had been invalidly retained as the Applicant’s lawyer, the evidence before the primary judge, and in particular Resolution 10 (which was part of exhibit 3 before her Honour), made it clear that the Applicant had engaged in conduct that was contrary to the “expectation” expressed in the resolution, in circumstances where the Gomeroi People had expressed their intent that, should the Applicant do so, the Applicant “may be replaced”. There was therefore an underlying problem. A discord existed between the Applicant’s conduct and the last-expressed wishes of the Gomeroi People in relation to the conduct of the litigation, which discord could result in the Applicant being replaced. The resolution was evidence—not irrefutable or conclusive evidence, but evidence nevertheless—going to the existence of an underlying problem. Further, in so far as the interests of the Gomeroi People were reflected in their choice of lawyer (and Resolution 10 expressly contemplates that to be the case), their interests had been compromised. This was material on the basis of which her Honour was entitled to act.

159    The “solution”, as the primary judge saw it, was implicit in the terms of Resolution 10 itself. At P–16 of the transcript of 10 March  2015, the primary judge said:

HER HONOUR: I don’t think you’ve got a condition here, I have to tell you, as a matter of construction, and I think it has its own internal mechanism for working out when an applicant has acted contrary to expectations. The solution that the resolution itself provides for is that the applicant can be replaced, so if the Gomeroi People are unhappy with what has happened, a meeting is required, and they replace the—or they say to the applicant you either act in accordance with our instructions to get back NTSCORP, or we replace you, if that’s what they really want.

160    But the question of whether there should be a meeting of the Gomeroi People was not a question which the primary judge regarded should be answered, at first instance, by the Court. That was, as the primary judge saw it, a “matter of policy” for NTSCORP as the representative body of the Gomeroi People. That view was most clearly expressed at P–24 of the transcript of 10 March 2015 in the following observation made by the primary judge:

HER HONOUR: … and if [NTSCORP] don’t file or anything, then it all goes away, but if they decide that, as a matter of policy, they think a meeting of the Gomeroi People should be convened, I’m going to facilitate it.

161    That view was also reflected in the Orders made on 10 March 2015. Those Orders granted NTSCORP leave to pursue the making of an order which facilitated a meeting, if NTSCORP chose to do so.

162    Section 203BK of the NTA empowers a representative body to “do all things necessary or convenient to be done for or in connection with the performance of its functions”. In circumstances where NTSCORP already had a capacity to call a meeting of the Gomeroi People in furtherance of its “facilitation and assistance functions” or its “dispute resolution functions”, there is a question as to why the primary judge expressed a willingness to make orders which facilitated the convening of such a meeting. The answer to that is plain from the statements of the primary judge recorded in the transcript of 10 March 2015. The primary judge was concerned that, without the assistance of an order of the Court, there was a risk that any attempt by NTSCORP to convene and hold a meeting of the Gomeroi People would be frustrated by the Applicant, Mr Hegney or both. At P–22 of the transcript, the primary judge said this:

HER HONOUR: I’m just willing to make that order—well, I am—the only thing I would be willing to do is to somehow put in place arrangements so that the fact that Mr Hegney doesn’t consent to a solicitor contacting what he calls “his clients” somehow be got round so that there can be a meeting of the native title claim group. I’m willing to make some orders that make it possible for the Gomeroi people to meet and for NTSCORP to do practical things that allow a meeting of the Gomeroi people to take place, then the Gomeroi people can decide. They can decide, “We’re going to go with Mr Hegney,” or “We’re going to go with,”—because that’s what should have happened anyway.

So I’m very—I just don’t think that the answer to this problem is making orders 1, 2 and 3 because I really—at the moment Mr Hegney is on the record, but I can see that there may be a practical issue. There should be a meeting of the—if they—people want it, of the Gomeroi people and then they get to decide. That’s the solution to this and I will make whatever directions are seen to be appropriate to facilitate such a meeting occurring if there’s any risk that 16 people or Mr Hegney are going to stop—by whatever powers they’ve got—a meeting occurring. So that’s what I’m willing to do.

163    The same concern held by the primary judge is reflected in the observations made at P–24:

HER HONOUR: And so nobody can say what’s NTSCORP on earth—what on earth are they doing? They don’t act for the Gomeroi People.

MR GREGORY: Right.

HER HONOUR: How can they convene a meeting of the—or do any of this? I’m saying they can do what’s necessary to convene a meeting if they decide that it should be. They may decide that—not going to bother. …

164    The immediate problem the orders sought to address was that, absent the authority of the Court, there was a real risk that NTSCORP would not be able to call a meeting of the Gomeroi People should it decide that was necessary. The orders were made to address that problem and in aid of the exercise by NTSCORP of its protective statutory functions. That was, in essence, the alternative contention made by NTSCORP in support of its submission that the primary judge, in exercising the jurisdiction conferred by the NTA to hear and determine the determination application, also had the power to order a native title representative body to carry out the statutory functions conferred under ss 203BB and 203BF of the NTA. NTSCORP contended that, here, it had sought the authority of the Court to aid in the exercise of those functions.

165    Whilst the determination of whether an order is within power because it is “appropriate”, or “necessary”, has a tendency to overlap with considerations going to discretion, this appeal only alleges error by reason of an absence of power. There is no issue raised as to any evidentiary finding expressly or inferentially made, or whether any such findings supported the making of the Orders, and the exercise of the primary judge’s discretion is not challenged.

166    As a matter of power, the need for the judicial control of the conduct of a representative proceeding, in order that “the interests of those who are absent but represented are not prejudiced by the conduct of the litigation of their behalf” (Carnie at 408), dictates that a wide range of orders may be “appropriate” for s 23 purposes or “necessary” (in the sense explained in Remington Products at [19]).

167    In my view the Orders may properly be regarded as protective of the interests of those of the Gomeroi People within the claim group who do not constitute the Applicant. The Orders were made in aid of the protective functions given by the NTA to a representative organisation and out of a concern to ensure that the interests of those of the Gomeroi People who were absent but represented in the proceeding before the primary judge, were not prejudiced by the conduct of the litigation. The efficiency of the conduct of the determination application may also have been a background factor which motivated the primary judge, but I place no reliance on that. The reason or justification for the making of the Orders identifies the problem that had or would arise but for the making of the Orders. I am not persuaded that the Orders were not “appropriate” and thus beyond the power conferred by s 23 of the FCA. Nor am I persuaded that the Orders were not “necessary” and beyond the implied power of the Court.

168    If I had been persuaded that the NTA abrogated the Court’s power to make the Orders, a contention made by the Applicant to which I will now turn, I would have come to a different view.

169    There are three steps to the argument made by the Applicant. First, the Orders made required that a meeting of a claim group be convened for the purpose of determining which lawyer should be used to conduct the determination application. Second, claim group members have no power under the NTA to instruct an applicant as to the lawyer to be used to conduct the determination application. Third, it follows, therefore, that the Court was not empowered to make orders for the purpose of facilitating what a claim group cannot do. That was so, it was contended, because whilst the powers conferred by s 23 of the FCA are attracted to the jurisdiction conferred on the Court by the NTA, they are limited to the extent that the NTA qualifies or abrogates those powers expressly or by implication: Bropho at [32] (French J).

170    I have no difficulty accepting, as a general proposition, that the power conferred by s 23 may be qualified or abrogated expressly or inferentially by the provisions of the NTA. In the Applicant’s submission, the inferential qualification or abrogation was primarily made by s 62A of the NTA which provides:

62A    Power of applicants where application authorised by group

In the case of:

(a)    a claimant application; or

(b)    a compensation application whose making was authorised by a compensation claim group;

the applicant may deal with all matters arising under this Act in relation to the application.

Note:    This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.

171    The applicant contended that s 62A conferred upon an applicant to a native title proceeding, and not to the native title claim group, the power to deal with all matters in relation to the application, including the power to choose the lawyer to conduct the proceeding. Any condition sought to be imposed upon an applicant by the claim group dealing with that subject matter would be beyond the power of the claim group and beyond the power of the Court to facilitate.

172    The Applicant’s submissions raise interesting questions as to the proper construction of s 62A, which need not be determined because the submission falls at its first step. It is premised upon the Applicant’s characterisation of the Orders as orders which convened a claim group meeting for the purpose of the claim group determining the lawyer that an applicant must use for the conduct of the determination application. The Orders did no such thing.

173    The relevant order is Order 1, as follows:

1.    NTSCORP facilitate a 2 day claim group meeting of the Gomeroi People on, or as soon as possible after, 12 and 13 May 2015 to consider resolution 10(e) of the resolutions carried at the meeting of the claim group in May 2013.

All that order requires is that NTSCORP facilitate a meeting where Resolution 10(e) is considered. A consideration of the expectation of the Gomeroi People expressed in a resolution made in May 2013 that the applicant not “attempt to terminate the services of NTSCORP Limited or the Legal Practice funded by NTSCORP as solicitor”, will not necessarily result in any instruction that the Applicant use NTSCORP (or any other solicitor) to conduct the determination application. Such a consideration may lead to any number of results. It may lead to the Gomeroi People clarifying the expectation expressed in Resolution 10(e). It may lead to the Gomeroi People resolving that the expectation is consistent with their current intent, or it may lead to the expectation being altered or entirely abandoned. That the Applicant will be instructed as to which lawyer they should use is not a necessary outcome of any consideration of Resolution 10(e). Therefore, the meeting facilitated by the Orders cannot be characterised as being for that purpose.

174    It may well be, as the primary judge contemplated as a possibility, that a further consideration of Resolution 10(e) by the Gomeroi People will ultimately lead to the Gomeroi People resolving to replace the Applicant as a means of having the expectation expressed in Resolution 10(e) fulfilled. The capacity for the Court to replace an applicant where the applicant “is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it” is provided by s 66B(1)(a)(iii) of the NTA. All of that may be achieved without the Gomeroi People making any resolution of the kind that the Applicant says is beyond their power.

175    There was one further aspect of the argument that I have just dismissed which I should mention, in passing, in case it should be thought that it was not considered.

176    In addition to s 62A, the Applicant also relied upon s 251B of the NTA in support of the second step of its argument. The Applicant contended that s 251B provided a claim group with the capacity to control the decision-making process of the applicant by, for instance, requiring decisions to be made by a majority or some other process. This was said to be the only instance of the NTA permitting a condition being imposed upon an applicant by a claim group and demonstrative of the proposition otherwise made out by s 62A that it was beyond the power of a claim group to dictate to an applicant the manner in which the applicant conducted the proceeding.

177    The short answer to the Applicant’s reliance upon s 251B, is that the Applicant has mischaracterised that provision. Section 251B does not deal with the decision-making process of an applicant. It deals only with the process of decision-making to be utilised when a claim group decides to authorise a person or persons to be an applicant.

178    For those reasons, the appeal should be dismissed.

Associate:

Dated:     30 May 2016