FEDERAL COURT OF AUSTRALIA

Gorringe on behalf of the Mithaka People v State of Queensland [2010] FCA 716

REASONS FOR RULING

1                     This is an application under s 61 of the Native Title Act 1993 (Cth) (the Act).

2                     The persons authorised by the native title claim group to make the application are Richard McCarthy, Ada Martin, Rose Turnbull, Jocelyn Haylock, Scott Gorringe, Lorraine McKellar.  They are “the applicant” for the purposes of the application.

3                     So far as the material before me demonstrates, the applicant was and is authorised to make the application and to deal with matters arising in relation to it by all other persons in the claim group.

4                     Following a lengthy history, the applicant or the current native title representative body for the area which includes the claim area, Queensland South Native Title Services Limited (QSNTS) has applied by motion of 17 June 2010 for leave to discontinue the application.  Leave is sought on the basis that there be no order as to costs of the application.  It is opposed.  The State of Queensland proposes to seek costs if leave is given to discontinue it.

5                     On 29 June 2010, I directed the applicant to file and serve an affidavit setting out the basis on which the applicant is authorised by the native title claim group to seek leave to discontinue the application.  These reasons explain why I considered it necessary to give such a direction.

6                     A threshold issue is who has standing to bring the motion seeing leave to discontinue.  If it is QSNTS, then on what basis, as they are not a party.  If the motion is brought by this body on behalf of the applicant, there is a paucity of evidence as to whether the applicant was authorised to do so.

7                     I have expressed some uncertainty about the identity of the person bringing the motion because it records that the motion is brought by QSNTS.  It is not a party.  Nor would it appear, in any event, that it has standing to apply for leave to discontinue the application itself.  It is not immediately apparent how any of its functions and powers under Div 3 of Pt II of the Act permit it to do so.  The laconic affidavit of the Senior Legal Officer of QSNTS does not explain why it may do so.  Apart from its formal content, that affidavit says only that QSNTS has received instructions from the applicant to discontinue the application, and that its discontinuance is “considered by the applicant to be in the best interests of” the claim group.  It does not explain why.  That may indicate that the intended moving party is the applicant. 

8                     By the time of the first return date on the motion three of the six persons constituting the applicant had filed affidavits in their personal capacity resiling from any such instruction, and to some degree expressing concern about the circumstances in which any instruction was apparently given.

9                     The affidavit of the Senior Legal officer, incidentally, does not clearly reflect the separate roles of the solicitor on the record for the applicant on the one hand, and QSNTS as the relevant representative body on the other: see eg the observations of Reeves J in QGC Pty Limited v Bygrave [2010] FCA 659 at [27]-[57].

10                  As noted, the application has a long history.  It was instituted on 28 November 2002.  When instituted, it was certified by the native title representative body then responsible for the area of the claim, Queensland South Representative Body Aboriginal Corporation (QSRBAC) in terms of s 203BE(4) of the Act.  It is unclear whether QSNTS is the same entity or a successor entity to QSRBAC as the relevant representative body.

11                  Such certification required that representative body to be of the opinion that all persons in the native title claim group had authorised the applicant to make the application and to deal with matters arising in relation to it, and that all reasonable efforts had been made to ensure that the application accurately describes the claim group: s 203BE(2).  The applicant was said to have been authorised by the native title claim group to bring the application pursuant to an authorisation under s 251B of the Act given on 16 and 17 November 2002 at a meeting regarding it.

12                  The claim was duly registered and entered on the Register of Native Title claims. 

13                  The application was first amended on 21 December 2007 to give effect to an agreement to reduce the claim area to address concerns about certain overlapping claims, following agreement with certain other applicants in relation to those overlapping claims.

14                  The claim area also overlapped with the claim area of a different native title claim group.  In 2008, after lengthy consultations between the authorised applicant for each of those claim groups and their representatives, that overlap was resolved.  The claim area of this application was amended by further amended application filed on 20 March 2009 to reduce the claim area to meet the agreement reached so as to avoid the problem of the overlapping claims.  The further amended application was also certified by QSRBAC pursuant to s 203BE(4) of the Act.

15                  The applicant through the QSRBAC engaged solicitors to conduct the proceeding.  As is apparent, through those solicitors the applicant has given instructions for the conduct and pursuance of the application, including instructions enabling the application to be amended on two occasions.  That position has remained.  There has been no formal notification of a change of solicitors.

16                  On 14 December 2009 at a callover of this and other matters, a solicitor appearing for the applicant indicated that this application could proceed to trial and sought that it be substantively allocated as soon as possible.  He is recorded as saying:

So we would be seeking that they [including this claim] be substantively allocated as soon as possible.  There is no reason why we can’t continue work on the connection material as well as preparing for trial …

… If we are of the view that it’s going to have to go to trial, then, we may as well prepare the connection material up to the stage that it will be acceptable and admissible in a court proceeding …

… Queensland South [QSNTS] has the resources, it has the lawyers, it may as well start preparing for trial rather than engage in fruitless mediation process and connection reports that we really don’t believe that there is any prospect of reaching a resolution.

17                  That solicitor requested the Court to give directions which progress the matter to a trial, or at least to progress it towards trial in the event that it did not resolve by agreement prior to the hearing.

18                  On 2 March 2010, the Court made orders to give effect to that proposal.  The parties had an opportunity to make submissions as to the detailed content of those orders.

19                  In accordance with those orders, the applicant filed a statement of claim on 30 April 2010 and the State of Queensland filed a defence on 7 May 2010.  An issue arose between the parties as to the adequacy of the statement of claim.  That matter was argued, and subsequently on 7 June 2010, I gave leave to the applicant to file and serve by a specified date such further amended statement of claim as the applicant may be advised having regard to the State of Queensland’s schedule specifying the information it required.

20                  Apart from the filing of some respondents’ defences, the next event was the notice of motion filed on 17 June 2010 on behalf of “Queensland South Native Title Services Limited” seeking an order for leave to discontinue this proceeding on the basis that each party bear its own costs.  As noted, that motion was not accompanied by any application of QSNTS to be joined as a party.  It was accompanied by an affidavit of a senior legal officer employed by QSNTS asserting that QSNTS had received instructions from the applicant to discontinue the whole of the proceeding because the applicant considered that to be in the best interests of the Mithaka people.  No other information was provided.

21                  When the motion came on for hearing, as noted above, three of the persons constituting the applicant had filed affidavits in which they asserted that, to the extent to which such instructions had been given, they had done so under duress and no longer wished to discontinue the application.  I raised the paucity of the information provided in support of the motion.  Counsel on behalf of the applicant (or on behalf of QSNTS) indicated that there was some disagreement between the persons constituting the applicant, so that there was some difficulty in QSNTS getting instructions as to how to further progress the matter.  That had been previously signalled by an affidavit of 11 May 2010 (of the same solicitor whose affidavit was apparently to support the motion) indicating that as far back as November 2009, QSNTS had identified that the six persons constituting the applicant had some internal disagreement as to how the matter should be progressed.  Notwithstanding that, information was given to the Court as noted above as to the applicant’s desire and capacity of the progress of the matter.  That calls for some explanation.  So, too, does the status of QSNTS.  So, too, does the status of its asserted instruction from the applicant to discontinue the application.

22                  That affidavit of 11 May 2010 also indicated that QSNTS had engaged an anthropologist research consultant to address the issue of connection to comply with the anticipated orders to enable the matter to progress to hearing.  That affidavit was to support a foreshadowed adjournment of the proceedings so that a further meeting of the claim group could be convened to consider whether the applicant should be changed pursuant to s 66B of the Act.  There is no further affidavit information about whether such a meeting can and will be convened, or why it is necessary, or why it is no longer an appropriate option.

23                  At the directions hearing of the motion on 29 June 2010, I was also informed by counsel that QSNTS did not have funds to progress the matter (contrary to the information given at the callover referred to above), that the applicant was “dysfunctional”, and that the applicant had given instructions to withdraw the proceeding.  Given what had been said on a previous occasion, I am not able to accept without evidence that the instruction to counsel as to funding is reliable.  That is a matter of regret.  Of course, I accept that counsel was so instructed, but the instruction is inconsistent with the previous information conveyed to the Court and with the engagement of an anthropological researcher.  It is a position which emerged only after the issue of whether further particulars of the statement of claim arose.

24                  As the motion for leave to discontinue the proceedings may progress, it is helpful, in my view, to set out the further considerations which I think are necessary to address before the motion proceeds.  Some are questions likely to be common to any similar motion.  Some are particular to this motion.  They are:

1.                  given the terms of the authorisation under s 251B to institute the application and to deal with matters arising in relation to it, whether the authorisation extends to authorising the applicant to withdraw the application or to seek leave to do so, and to include conditional terms as to costs;

2.                  as counsel for the QSNTS/applicant (it is unclear which) indicated at the directions hearing on 29 June 2009 that reliance may be placed upon s 62A of the Act expressly giving an authorised applicant power to “deal with all matters arising under this Act in relation to the application”, whether that power extends to withdrawing the application or seeking leave to do so, and if so subject to such order to costs as the court may make, irrespective of whether the terms of authorisation under s 251B permit such action;

3.                  having regard to the history of the application, and in particular the decisions apparently made by the applicant on behalf of the claim group to amend the claim in the circumstances set out above, whether the applicant should be required to justify leave being given to discontinue the application without addressing the possible consequences to the agreements with claimant groups in the previously overlapping claims (who presumably have also acted upon the agreements previously reached), as to the status of those agreements, including whether the Mithaka People could re-apply for native title rights and interests over an area which might overlap another claim and be inconsistent with the previous agreements;

4.                  having regard to the capacity of the applicant as registered native title claimants (see s 253) to have entered into an indigenous land use agreement (ILUA), or to have otherwise entered into agreements in respect of future acts, whether information should be provided as to any ILUA or any other future act agreement has been entered into by the applicant and if so upon what terms.  The amended application refers to a number of notifications under s 29 of the Act.  If the proposed discontinuance is on the basis that the claim group does not hold native title rights and interests, that of course would be significant to the Registrar in relation to maintaining on the register any registered ILUA: s 199C.  Hence, it may be that the Court should formally be told the basis upon which the proposed discontinuance is sought;

5.                  having regard to the same matters, as a condition of any discontinuance, whether the applicant should be required to account for the benefits received under any ILUA or other agreement entered into in the capacity as applicant;

6.                  having regard to the certification of the application by QSRBAC, it may in any event be appropriate to identify the basis upon which discontinuance is sought.  If the applicant cannot determine the way in which the application should proceed, some indication of the nature of their disagreement might be appropriate, as such disagreement is not apparent from the conduct of the application to date;

7.                  the status of QSNTS to bring the motion in its own name, and its status in relation to the engagement of solicitors for the applicant;

8.                  the extent to which QSNTS, if it is bringing the motion either on its own behalf or on behalf of the applicant, now has instructions from the applicant to do so;

9.                  having regard to the instructions as to the availability of funds, and the desire of the applicant to progress the matter to hearing, as conveyed to the Court on 14 December 2009 and up to the time when the orders of 2 March 2010 were made, the basis upon which QSNTS now asserts that there are not funds available to progress the application in accordance with the directions given on 2 March 2010.

25                  I am not to be taken as indicating a view on any of those matters.  I simply record the matters of potential concern so that, if the motion for leave to discontinue the application is to progress, those matters may need to be considered and addressed.

Associate:

Dated:         8 July 2010