FEDERAL COURT OF AUSTRALIA

Tigan v State of Western Australia [2010] FCA 993

THE COURT ORDERS THAT:

1.                  The Registrar forthwith causethe notice of change of solicitor filed on 15 July 2010 in this proceeding to be removed from the Court file and returned to Western Legal of 15 Adelaide Street, Fremantle, Western Australia 6160.

2.                  Costs reserved.     

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             The amended notice of motion dated 24 August 2010 filed by the solicitors for the applicant principally seeks an order directed to the Registrar of the Court for the removal of the notice of change of solicitor filed on 15 July 2010 by Western Legal ostensibly then acting for the applicant.

2                                             The respondents to the motion are three of the members of the applicant being Aubrey Tigan, Henry Mowarljarlie and Lorna Hudson. 

3                                             The Mayala application covers the islands, reefs and waters of the Buccaneer Archipelago and King Sound in the West Kimberley region and was filed by the applicant on behalf of the “Mayala People” comprising:

            (a)        the descendants of Kudumili, Galawa, Ngalgamun/Nalgamun, Jabadayim, Jabadayim’s adopted son, Jacob Sesar, Ulgirr/Oolgir; and

            (b)        persons adopted by those descendents in accordance with their traditional law and custom of the group; and

            (c)        the descendants of those adopted persons.

4                                             The Mayala application was amended by order of the Court on 22 April 1999 and accepted for registration pursuant to s 190A of the Native Title Act 1993 (Cth) (the Act) on 15 June 1999.  Other amendments were made to the Mayala application on 14 October 2004 and a further amended application was filed in the Court on 15 July 2005. 

5                                             On 28 July 2005, the Mayala application was again accepted for registration, pursuant to s 190A of the Act.

6                                             From the date when the Mayala application was originally filed, in 1998, up until 15 July 2010, the Kimberley Land Council Aboriginal Corporation (the KLC), through its principal legal officer, was the solicitor on the record for the Mayala application.  The KLC is, in accordance with Part 11 of the Act, the Native Title Representative Body for the Kimberley region of Western Australia.  As such, the KLC has the functions and powers set out under Division 3 of Part 11 of the Act. 

7                                             The notice of motion is supported by affidavits of evidence, affirmed by two members of the applicant, Valarie Wiggan and David Wiggan, on 28 July 2010.  They each depose “I have not consented to any change of solicitor in the matter WAD 6255 of 1998”.

8                                             The respondent read an affidavit by Aubrey Tigan, another member of the applicant, affirmed on 20 August 2010.  This explained, in effect, that there had not been adequate time to respond to the motion with substantive affidavit material.  It also stated that on 20 August 2010 a Mayala Claim Group meeting at One Arm Point made decisions “changing the people who are the applicant”.  Importantly, the applicant is said no longer to include Valarie Wiggan and David Wiggan and that papers are being prepared to apply to the Court for orders about changes in the applicant.  I take this last matter to refer to an application to be made under s 66B of the Act.  

9                                             These reasons proceed on the basis of a written statement of agreed facts on the notice of motion signed by the solicitors for each of the parties to the motion.  The agreed facts for the purposes only of the motion are:

1.         When the Native Title Determination Application in these proceedings was filed in 1998, there were four people who comprised the applicant.

2.         As at 29 June 2010, the applicant consisted of five people – Aubrey Tigan, Lorna Hudson, Henry Mowaljarlie, Valarie Wiggan and David Wiggan. The only one of these who was part of the original group of applicants was Aubrey Tigan.

3.         At a meeting on 29 June 2010 the claim group decided that Western Legal would become the solicitors for the applicant in place of the Kimberley Land Council. The decision was made by resolution of the meeting, with 56 members in favour of the resolution, and 32 against.

4.         Ninety-three members of the claim group attended at the commencement of the meeting.

5.         At the same meeting it was resolved that Western Legal be instructed to file a notice of change of solicitor in these proceedings.

6.         The respondents to the notice of motion instructed Western Legal to file a notice of change of solicitor in these proceedings.

Statutory framework

10                                          A claimant application within the meaning of s 253 of the Act, by virtue of s 61(1) may only be brought 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 native title claimed.  Then, under s 61(2)(c) and (d) relevantly, the person is, or “the persons are jointly, the applicant and none of the other members of the native title claim group … is the applicant”.  Section 62A(a) provides relevantly that in the case of a claimant application the applicant may deal with all matters arising under the Act in relation to the application.  An application for a determination of native title is a representative proceeding. 

11                                          Counsel for the respondents to the motion made two principal submissions.  The first is that while the applicant, as defined pursuant to s 61(1) and especially s 62A, may deal with all matters arising under the Act in relation to the application for determination of native title made by Form 1 under s 61, so may the members of the claim group as a whole, by a decision made at a claim group meeting.  The second is that in any event, while the applicant is, relevantly, pursuant to s 61(1) the persons, jointly, who are 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, there is no requirement that the persons who jointly are the Applicant must be unanimous in order for them to make a valid decision.

12                                          I do not accept either of these two submissions.  As to the first, I repeat what I said in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 that, by s 62A of the Act, it is the applicant who may deal exclusively with all matters arising under the Act in relation to the claimant application.  The respondents conceded that the filing of a notice of change of solicitor was such a matter.  

13                                          The decision in Ankamuthi People v State of Queensland (2002) 121 FCR 68 was a case similar to the present one.  In Ankamuthi dissension had broken out in the Native Title Claim Group.  It seems that a large majority of them were unhappy with the way their native title claim was being conducted by their authorised applicants in respect of three native title applications.  A notice of discontinuance was filed by a Land Council purportedly on behalf of the Ankamuthi People or at least the great majority of them. 

14                                          Drummond J rejected the validity of the notice stating at [5]-[8]:

5.         … 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.

15                                          Ankamuthi was followed in McKenzie v South Australia [2006] FCA 891 and Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809. 

16                                          The respondents submit that this case can be distinguished from Ankamuthi because here there is evidence of a decision taken by the native title claim group to change solicitors, a fact not present in Ankamuthi.  I do not think this is a meaningful distinction.  Importantly, Drummond J (at [9]) acknowledged in his reasons that the Land Council may well have acted on instructions of a large majority of Ankamuthi People.  

17                                          In any event even if the respondents were correct, and in my view, they are not, it has not been established by evidence that the meeting was in fact a meeting of the native title claim group as a whole.  What would be required to establish that and any related facts was identified by O’Loughlin J in Ward v Northern Territory [2002] FCA 171 at [24]-[25]. 

18                                          The respondents’ second submission that decisions by persons who together constitute for the purposes of s 61(1) the applicant may be taken by a majority of them is inimical to the object of ss 61 and 62 in the context of the Act as a whole.  As Kiefel J said in Butchulla People v Queensland (2006) 154 FLR 233 at [38]:

The evident purposes of s 61 are to provide for representation of the claim group, to limit the number of persons who may act as ‘the applicant’ in the proceedings and, when more than one person is authorised, to require them to act in concert with each other. It may be assumed that since the persons authorised have a common interest in the subject matter of the claim acting jointly should not present a difficulty.  (Emphasis added)

19                                          The expression in s 61(2)(c) that the persons are “jointly” the applicant is important.  “Jointly” relevantly means:

“in conjunction, in combination, unitedly, not severally or separately”: Shorter Oxford English Dictionary.

20                                          The respondents relied upon Doolan v Native Title Registrar (2007) 158 FCR 56 and Chapman v Queensland (2007) 159 FCR 507 to support this second submission.

21                                          These cases do not, in my opinion, support the second submission.  Indeed they reaffirm what was said by Kiefel J in Butchulla People. 

22                                          At issue in Doolan was whether “the applicant” in s 61(2) of the Act meant all of the persons authorised by the Native Title Claim Group and no fewer.  Originally eighteen people had been authorised.  Before the native title application was lodged two of those eighteen withdrew.  The delegate of the respondent refused to accept the application for registration on the basis that the native title claim group had not authorised the sixteen people who constituted the applicant to make the application where two of the original persons authorised had withdrawn.

23                                          Spender J stated the following at [56]-[59]:

56.       For my part, I do not see the authorisation of a number of persons as an ‘applicant’ as being an appointment of each of them ‘jointly and severally’ to deal with the matters arising with the matters in relation to an application.  I accept that s 61(2) contemplates an authorisation of persons to act collectively, rather than each of them personally. 

57.       However, I think that an appointment of a group of persons jointly to be an ‘applicant’ by a meeting of a native title claim group is an authorisation for the named persons to act, or so many of them as remain willing and able to act.  It is these persons who constitute the ‘applicant’.   There is, in my opinion, an implication in an authorisation of a group to act collectively in a representative capacity that that authorisation has to be understood as recognising the vicissitudes that accompany joint action, particularly where (as is frequently the case) the persons authorised to make an application for a native title determination are elderly, and subject to the possible incidents of old age.

58.       No differentiation, it seem to me, is to be made as to the capacity of a person in a group to act, and that person’s willingness to continue to act as a member of the group.

59.       In the view I take of the matter, there is no requirement for there to be an express qualification to that effect, as the submissions of the Attorney-General suggest.  Rather, the position is that an authorisation of a group of people to act has to be understood as meaning the authorisation of so many of them as continue to be willing and able to discharge their representative function.  (Emphasis added)

24                                          These conclusions were consistent with what Kiefel J, on this issue, had said in Butchulla People at [39] which his Honour repeated at [72]:

Whilst s 61(2)(c) permits representative proceedings it does not create a legal entity which is itself capable of suing. And, whilst it obliges those authorised as representatives to co-operate with each other, it does not say that they are bound together in the way in which the respondents contend. The requirement that they act together does not imply that their ability to continue to act is dependent upon each other person authorised also continuing in the role. If that were the case it must arise from the terms upon which persons are authorised by the claim group.  (Emphasis added)

25                                          Spender J then, at [73] adopted her Honour’s conclusion in Butchulla People at [42] that:

… the presumptions usually applied to personal appointments would operate.  That is to say, their authorisation will continue until revoked and whilst they are willing and able to act in their representative capacity.

26                                          Chapman v Queensland concerned an application under O 6 r 9(b) Federal Court Rules for orders that three people, until then members of “the applicant” to a native title application cease to be parties.  One had died.  The other two had refused to cooperate with the applicants and intended no longer to act in a representative capacity.  Kiefel J stated at [11]-[13]:

11.       I was influenced to the view expressed in the Butchulla People’s application by reference to the evident purpose of the provisions of the NTA and because that view did not cut across any purpose or the operation of its provisions.  The requirement of the NTA, that persons authorised act together, is not a term or condition of appointment, but a statutory requirement having as its purpose the efficient prosecution of claims.  A view that the inability of one to continue to act should not affect the authorisation of the others is consistent with the nature of the rights to native title determination.  I concluded at [45]:

In my view s 251B should be understood to refer to the authorisation of each person who is to represent the claim group and act with others as the ‘applicant’. The authorisation is personal to them and continues until revoked or whilst they are willing or able to act. Sections 66B(1) and 64(5), dealing with replacement and appointment respectively, should be read in a way consistent with this approach. The reference to the ‘current applicant’ being no longer authorised would be taken to refer only to those persons whose authority has in fact been revoked. This may not be all persons comprising ‘the applicant’. The ‘new applicant’ referred to in s 64(5) is each person who is authorised to make up the applicant when a change is made to one or more of them. The evidence that the subsection requires about their authorisation would be satisfied by those persons not newly appointed referring to their prior authorisation and the fact that it has not been revoked. For administrative convenience and clarity, their authorisation might also be ratified at the same meeting which authorises the new appointment or appointments, but this is not necessary.

12.       I adhere to that view for the reasons given.  A contrary approach would mean that ‘the applicant’ in native title claim proceedings would cease to exist if it transpired that just one of the persons making up ‘the applicant’ was not a member of the claim group or died and involve the considerable expense of undertaking another authorisation meeting of the entire group.  I note that the decision in the Butchulla People’s application has been followed by Spender J in Doolan v Native Title Registrar [2007] FCA 192.

13.       The approach which I consider to be open does not limit the grounds for the effective removal of a person to those in s 66B(1), rather it gives effect to the basis upon which authorisation was originally made.  It should not be inferred that it was intended that s 66B(1) be the only means by which the constitution of the applicant in proceedings before the Court can be altered.  As the State of Queensland pointed out in its submissions, that provision provides a right in persons to apply to the Court in circumstances where they are not a party to the proceedings and O 6 r 9 is not available to them. 

            (Emphasis added)

27                                          Two propositions, at least, emerge from these cases.  First, they are to be distinguished on their facts from the present case.  Here, the Wiggans are both alive and there is no evidence that they are not willing or able to act as members of the applicant.  Second both cases cited by the respondent re-affirm the statutory requirement that, although authorised individually, members of the applicant must, in accordance with the Act, act jointly.  

28                                          The issue raised by the second submission does not concern the authorisation of any of the members of the applicant in that capacity but rather whether they can cause the applicant to deal with a matter arising under the Act in relation to the application by majority decision.  My opinion, as I said, is that they can not.  They must act in concert.  If dissension arises, as it seems has occurred here, between the named persons who are the applicant, then there are procedures under the Act for the native title claimant group to effect a change in the membership of the applicant.  Indeed that has been foreshadowed in this case. 

29                                          The respondents submit that decisions of the National Native Title Tribunal support their contentions upon this issue.  The applicant on the other hand has provided very persuasive written submissions that this is not the case, and that the Tribunal’s approach is consistent with that taken in this Court.  It is unnecessary, given the conclusion to which I have come, to consider these additional submissions concerning the Tribunal. 

30                                          It follows, in my opinion, that the action of the respondents in instructing Western Legal to act and to file a notice of change of solicitors were not actions by, or authorised by, the applicant.  Accordingly, the Registrar should be ordered to remove the notice of change of solicitors from the court file and to return it to Western Legal. 

31                                          The applicant sought costs against Western Legal.  There is no basis for ordering costs against Western Legal.  They are not a party to the proceeding and no other basis was put as to why they ought be liable to pay the costs of the applicant.  I will reserve, for further argument, the question of costs and, in particular, whether the respondents to the motion ought be liable to pay these.

Associate:

Dated:         10 September 2010