FEDERAL COURT OF AUSTRALIA

Ankamuthi People v State of Queensland [2002] FCA 897

NATIVE TITLE – practice and procedure – notice of change of solicitor filed without the authority of the applicants – whether notice of change of solicitor and notice of discontinuance have any effect

Native Title Act 1993 (Cth) ss 61, 62A, 66B

Federal Court Rules O 22 r 2(2)

ANKAMUTHI PEOPLE (LARRY WOOSUP) v STATE OF QUEENSLAND AND OTHERS

QG 6158 OF 1998

DRUMMOND J

17 JULY 2002

BRISBANE

THE COURT ORDERS THAT:

1.                  The Registrar remove the notice of change of solicitors and the notice of discontinuance of application for determination of native title QG 6158 of 1998 from the Court file and return those documents to the Cape York Land Council Aboriginal Corporation.

THE COURT DECLARES THAT:

2.                  The notice of change of solicitors and the notice of discontinuance of application QG 6158 of 1998 were filed without the authority of the applicants and are void and of no effect.

3.                  Terry Fisher & Co remains and has never ceased to be the solicitors on the record for the applicants.

4.                  Application QG 6158 of 1998 has been and has not ceased to be since the date upon which it was filed an application made to and pending determination in this Court.

THE COURT DIRECTS THAT:

5.                  The Registrar of the National Native Title Tribunal is not to remove application QG 6158 of 1998 from the Register of Native Title Applications on the basis of the notice of discontinuance filed on 14 March 2002.

THE COURT FURTHER ORDERS THAT:

6.                  The Cape York Land Council Aboriginal Corporation pay the costs, including reserved costs, of the applicants on the present notice of motion, to be taxed on an indemnity basis, ie, to be taxed to the intent that the applicants on the motion will recover all their costs of and incidental to the motion, save such costs, if any, as may have been unreasonably incurred.

7.                  Leave be granted to the applicants on the present notice of motion to tax those costs forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have before me a motion by the applicants in proceedings QG 6158 of 1998 for orders, in effect, declaring that a notice of change of solicitors filed on behalf of the Cape York Land Council on 14 March 2002 be disallowed, and that the notice of discontinuance subsequently filed on the instructions of the Cape York Land Council Aboriginal Corporation (“the Land Council”) on 14 March 2002 also be disallowed.  In consequence, a declaration is sought that the native title application QG 6158 of 1998 is on foot and has never ceased to be on foot.

2                     In 1997, five people, Beverley Mamoose, Larry Woosup, Arthur Woosup, Silas Woosup and Robert Dick, between them filed three applications for determination of native title on behalf of the Ankamuthi People.  There is no suggestion on the evidence before me that they were not appropriately authorised by the claim group to make those applications when they initially lodged them.  In July 1999, the three applications were consolidated and given the file number QG 6158 of 1998.  Throughout, up until 14 March 2002, the solicitors on the record for the applicants in these proceedings, three of whom are also applicants on the motion now before me, were Terry Fisher & Co. 

3                     By a document dated 14 March 2002 and filed on that day in the Federal Court Registry, notice was given of a change of the applicants’ solicitors in proceedings QG 6158 of 1998 from Terry Fisher & Co to the Land Council; the new address for service of the applicants was given in that notice as the address of the Land Council.  On the same day, the Land Council, purporting to act as the new legal representative of the applicants in QG 6158 of 1998, filed in this Court a notice on their behalf discontinuing those proceedings.  The notice reads in these terms:  “The Applicant by consent discontinues the proceedings”.  It is signed, however, only by the Land Council.  Although there are numerous respondents to QG 6158 of 1998, this notice made provision only for it to be signed by the State of Queensland and Comalco Limited, in addition to the Land Council.  Neither of those bodies signed the notice of discontinuance.  But on its face, if appropriately authorised, it would have been effective to discontinue proceedings QG 6158 of 1998.

4                     The position revealed by the evidence before me, however, is that none of the five persons who were applicants in the three proceedings consolidated in July 1999 into QG 6158 of 1998 gave any instructions to change their solicitors from Terry Fisher & Co to the Land Council and none of those persons gave any instructions to the Land Council or anyone else to discontinue QG 6158 of 1998. 

5                     The evidence indicates that dissension has developed within the Ankamuthi People and that a large majority of the Ankamuthi People are now unhappy with the way QG 6158 of 1998 was being conducted by the five applicants and their legal representative, Terry Fisher & Co.  The action taken by the Land Council, I accept, was taken at the behest of what it had good grounds for thinking was the large majority of the Ankamuthi People.  But it is, in my view, beyond argument that the course adopted by the Land Council to give effect to what it understood to be the views of the large majority of the Ankamuthi People is without any legal foundation and can properly be described as a subterfuge to avoid compliance with the provisions of the Native Title Act 1993 (Cth).

6                     There is a procedure laid down in s 66B the Native Title Act to deal with what appears to be the dissension that has developed within the Ankamuthi People.  If the applicants no longer have the authority of the Ankamuthi People to run this action on their behalf, they can be replaced by new applicants who now have that authority.  But that can only be done by the Court on notice to all the parties.  Instead of following that course, however, the Land Council followed the unjustified course that has provoked the present motion.

7                     The provisions of that Act are clear.  Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group.  Such a proceeding is obviously a representative proceeding.  By s 61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant.

8                     It is clear enough from that provision that it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group.  The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings.  That follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant.  But if more were needed, it is to be found in s 62A, which explicitly states that to be the position.

9                     It follows from this that the Land Council, notwithstanding the fact that it may have acted on the instructions of a large majority of Ankamuthi People on behalf of whom QG 6158 of 1998 was brought, had no lawful authority to file the notice of change of solicitors which it did on 14 March 2002.

10                  It is plain that the Land Council took the action it did on 14 March last to arm it with authority to terminate QG 6158 of 1998 by putting itself on the record as the legal representatives for the applicants.  But for the reasons given, just as the Land Council had no authority to file the notice of change of solicitors, nor did it have any authority from the five named applicants, who alone have control of the litigation, to file the notice of discontinuance.  Moreover, the proceeding QG 6158 of 1998, being for the reasons I have explained a representative proceeding, could not be discontinued without the leave of the Court pursuant to O 22 r 2(2) the Federal Court Rules.  No such leave was sought.

11                  For all these reasons, the two notices filed on 14 March last are void of legal effect.

12                  I will therefore make orders of the kind sought by the applicants.

Associate:

Dated:              19 July 2002