FEDERAL COURT OF AUSTRALIA

Boney v Attorney General of New South Wales [2018] FCAFC 218

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an application for leave to appeal from the discretionary decision of the primary judge to order, under s 66B of the Native Title Act 1993 (Cth), that the second respondent (the replacement applicant) replace the then current applicant (the former applicant) as the applicant authorised by a process of decision-making, in accordance with s 251B(b), to deal with all matters arising under the Act, in relation to the native title claim of the Gomeroi people’s native title claim group.

2    The application for leave was argued as if leave to appeal had been granted on a draft second amended notice of appeal.

Background

3    The primary judge heard the evidence of numerous witnesses over a four-day trial, and viewed a video recording of the two-day long authorisation meeting held on 19 and 20 July 2016 (the July 2016 meeting), at which those members of the claim group present voted by a substantial majority to replace the former applicant with the replacement applicant.

4    Broadly, the former applicant argued that his Honour erred in three substantial respects, namely, first, the representative body, NTSCORP, had acted for the dominant improper purpose in convening the impugned July 2016 meeting of having itself reinstated as the lawyer for the claim group and retaining their file following the 2015 decision of the former applicant to engage a new solicitor, Sam Hegney (the improper purpose issue). Secondly, the notice of meeting was, in substance, defective on two bases, the first being that the notice was not addressed to the claim group as a whole, but rather to those members with an interest in replacing the former applicant and restoring NTSCORP to its former role; and the second basis being that the notice was misleading or inadequate in its terms (the notice issues). And, thirdly, even if the primary judge correctly decided the improper purpose and notice issues, he erred in the exercise of his discretion to order, under s 66B(2), that the former applicant be replaced (the discretion issue).

5    An applicant for leave to appeal must establish that the decision in question is infected with sufficient doubt to warrant the grant of leave and that substantial injustice would result from the refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], per McHugh, Kirby and Callinan JJ.

The improper purpose issue

6    The former applicant contended that his Honour erred in finding that the dominant purpose of NTSCORP in calling and facilitating the July 2016 meeting in the exercise of its function as a representative body under ss 203BB and 203BF of the Act, was to assist the claim group following a number of requests to do so. The primary judge found that NTSCORP’s desire to retain its former role and not to have to hand over its file formed part of its purpose, but that that was not a substantial purpose in its decision to call the meeting. His Honour applied as the test that a discretionary statutory power must be exercised for a purpose for which the power was granted and not for an ulterior purpose, and that it was enough to invalidate a decision if an improper purpose was a substantial purpose for the exercise of the power. The former applicant did not challenge that formulation of the test of improper purpose in the notice of appeal.

7    The primary judge made his finding after considering and accepting the evidence of both the chief executive and a lawyer of NTSCORP, as to each of their reasons for calling the July 2016 meeting. Neither witness was challenged in cross-examination to suggest that her or his dominant or substantial purpose was the impugned one, nor was there any other evidence that was incontrovertible or uncontested, or that made his Honour’s finding of NTSCORP’s dominant purpose glaringly improbable or contrary to compelling inferences that would be necessary to enable an appellate court to find that he had made an error in his factual findings: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 558-559 [43], per French CJ, Bell, Keane, Nettle and Gordon JJ.

8    Moreover, the former applicant did not put a case at trial that NTSCORP, as a representative body, had acted in breach of s 203BC. That section prescribed how such a body had to perform its facilitation and assistance functions. While it may be possible to argue that the purpose for which an authorisation meeting was convened could invalidate a notice of meeting, there is no sufficient reason to doubt the correctness of the primary judge’s finding as to the purposes for which NTSCORP acted. Thus, the former applicant’s argument on the improper purpose issue does not warrant a grant of leave to appeal.

The notice issues

9    The first basis on which the former applicant challenged the notice of meeting involved an argument that, properly construed, despite the notice being addressed to the claim group as a whole and posted to all of its members for whom NTSCORP had addresses, and advertised in two newspapers circulating in the claim area, his Honour erred by failing to find that, in fact, the notice was addressed substantially to members of the claim group sympathetic to the cause of NTSCORP and those who wanted to have the former applicant replaced. The former applicant argued that his Honour erred in finding that the notice was directed to all of the members of the claim group expressly and that it could not be described as calling a meeting of only those of its members who held the same concerns as NTSCORP, and those members who, his Honour found, had requested it to convene the meeting.

10    There is no sufficient reason to doubt that his Honour was entitled to make that finding on the evidence. Indeed, the notice commenced, as the primary judge observed in his reasons, with the question of “Who should attend?” and an answer, “The meeting is open to all members of the native title claim group in the Gomeroi people native title determination application” (emphasis in original), before it set out complaints about the conduct of the former applicant, followed by an agenda that included item 4:

The agenda for the meeting is:

….

4.     Discussion and making decisions on whether the Gomeroi Claim Group wishes to continue to authorise the current Applicant, or to replace the current Applicant. If the claim group wishes to replace the current Applicant, the meeting will consider resolutions to authorise a new Applicant on the basis that the current Applicant is no longer authorised, has exceeded the authority given to it, and/or on the basis that one of the persons jointly comprising the Applicant has passed away. If the claim group authorises a new Applicant, it will be asked to authorise the new Applicant to make an application to the Federal Court for an order under section 66B of the Native Title Act 1993 (Cth) that the new Applicant replace the current Applicant.

11    The second basis on which the former applicant alleged that his Honour had erred was his failure to conclude that the notice was misleading or inadequate in five respects, namely:

(1)    its failure to describe the interest of NTSCORP in the outcome of the authorisation meeting;

(2)    its failure to identify NTSCORP’s predominant motivation, being the improper purpose in calling the meeting discussed above;

(3)    its assertion that registration for the July 2016 meeting would only be permitted between 8 am and 12 noon on 19 July 2016, when in fact registration was allowed throughout the two days, including of 43 registrants on the second day;

(4)    its failure to state that the former applicant could be replaced for any or no reason; and

(5)    its failure to state that a replacement applicant might be chosen on any basis, including on a basis contrary to that determined in earlier authorisation meetings.

12    The primary judge found that, first, read as a whole, as the claim group would have understood it, the notice made clear that NTSCORP had an interest, because the meeting would consider reinstating it to act as lawyer for the claim group and whomever would be the applicant going forward. That finding was open to his Honour. The second challenge cannot rise higher than the argument on the improper purpose issue. There is no sufficient reason to doubt the correctness of the primary judge’s finding on this. His Honour rejected the third challenge to the notice, on the basis that the closest margin on which any resolution was carried at the July 2016 meeting was 51 votes. He found that the former applicant did not lead or identify any evidence that any person had decided not to attend the meeting because the notice had stated that registration would be between 8 am and 12 noon on 19 July 2016. The primary judge said that he was not prepared to infer that at least 51 people, who received the notice of the meeting, were misled into not attending it by reason of the registration time that it set out, or any other alleged defect in it.

13    The fourth challenge does not have any real prospect of success, given that item 4 on the agenda expressly adverted to the claim group’s rights (under s 66B(1)(a)(iii) and (iv)) to decide that the former applicant was simply no longer authorised by the claim group to make the application and to deal with matters arising in it, or that it had exceeded the authority given to it.

14    The fifth challenge was to the primary judge’s finding that the July 2016 meeting was not bound by a resolution of the 2013 authorisation meeting, at which the former applicant had been authorised to act in a way by being constituted with 19 members, each of whom represented what were said to be each of the 19 regions within the claim area. The former applicant alleged that only one of the 19 members of the former applicant had authority to speak for country in respect of his or her respective area. His Honour found, having seen and heard the witnesses and viewed the video of the two-day meeting, that this issue “seems to have stemmed from the floor of the 2016 Authorisation Meeting”. He found that the notice was not misleading or inadequate by failing to indicate that the meeting could take a different course from that taken in the 2013 one. In any event, he was not satisfied that this complaint or any other of the former applicant’s complaints about the adequacy of the notice was likely to have made a difference to the outcome of the meeting. Indeed, resolution 9, that the July 2016 meeting passed, decided that the 19 persons to be selected as members of the replacement applicant would represent the Gomeroi people as a whole and not the regions.

15    Once again, the primary judge’s findings on the notice issues were open to him, after considering all of the evidence at the trial. We are of opinion that there is no sufficient reason to doubt the correctness of those findings, having regard to Robinson Helicopter 331 ALR at 558-559 [43].

The discretion issue

16    Finally, the former applicant argued that, even if its other grounds were rejected, his Honour erred in exercising his discretion under s 66B(2) to order that the former applicant be replaced. To succeed on this ground, the former applicant had to demonstrate an error in the exercise of his Honour’s discretion, in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505. The former applicant identified the error in his Honour’s reasoning as falling within what Dixon, Evatt and McTiernan JJ there described as follows:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (emphasis added)

17    The former applicant contended that there were several procedural defects in the way in which the July 2016 meeting proceeded, including as to the members voting and who was permitted to vote, involving irregularities in registration of voters.

18    The primary judge concluded that those defects that he found in the conduct of the meeting, taken alone or in combination with all of the other matters in issue before him, would have made no material difference to the outcome of the meeting. He was also mindful that the exercise of his discretion adversely to the replacement applicant would defeat the will of the claim group as a whole, as expressed at the meeting. He referred to what Stone J had said in Lawson on behalf of the “Pooncarie” Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [28], namely:

I do not think, however, that the Act requires decisions of native title groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised.

19    In the particular circumstances of this proceeding, there is no sufficient reason to doubt that his Honour’s exercise of discretion was open to him on the basis of the challenges that the former applicant sought to raise. We are not persuaded to grant leave on the discretion issue.

Other issues

20    The replacement applicant sought to argue that the former applicant had no legal status to challenge his Honour’s decision. It is not necessary to decide this question, but it would be odd if the displaced former applicant could not challenge, on proper grounds, the process by which it had come to be replaced. On the other hand, the Act does not give any vested interest, other than that of being a member of the claim group, to those who compose, from time to time, an applicant authorised under ss 66B and 251B to be the applicant.

Conclusion

21    For these reasons, we are of opinion that leave to appeal should be refused. In accordance with s 85A of the Act, there will be no order as to costs.

Associate:

Dated:    4 December 2018

SCHEDULE OF PARTIES