FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2011] FCA 1175

THE COURT ORDERS THAT:

1.    The interlocutory application filed 25 August 2011 be dismissed.

2.    The costs of QGC Pty Limited and Russell Doctor and Others for the Bigambul People (QUD101 of 2009) be paid by the applicants to the interlocutory application, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1        This is an interlocutory application filed 25 August 2011 by Norman McGrady, Richard Green, Madeline McGrady and Alfred Priestly (“the joinder applicants”) to be joined as parties to an application for judicial review of a decision of a Delegate of the Native Title Registrar. The application for judicial review is currently listed for hearing in this Court next week.

2        The application for joinder is opposed by the applicant in the substantive proceedings, QGC Pty Ltd (“QGC”) and the second respondent in the substantive proceedings (the Bigambul People).

3        All parties to the proceedings before me have legal representation. The joinder applicants are represented by NTSCORP Limited (“NTSCORP”), which also represents the third and fourth respondents in the substantive proceedings.

4        In summary, the joinder applicants depose that they are members of the Gomeroi People, and that they have an interest in the land the subject of the Indigenous Land Use Agreement (“ILUA”) (and therefore in the review proceedings concerning the ILUA). The interlocutory application before the Court relates only to joinder of the joinder applicants to the judicial review proceedings.

Background

5        The application for review arises from a substantive application filed 22 July 2010 by QGC Pty Ltd to register an ILUA with the Native Title Register. The parties to the ILUA are QGC and the registered native title claimant for the Bigambul native title determination application QUD101 of 2009. The ILUA covers the area subject to the Bigambul claim.

6        On 12 April 2011 the authorised Delegate of the Native Title Registrar refused registration of the ILUA pursuant to s 24CL(1) of the Native Title Act 1993 (Cth) (“the Act”). On 11 May 2011 QGC filed an application for judicial review of the Delegate’s decision. The application was subsequently amended on 28 June 2011 to make it clear that the application for review was brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1975 (Cth) (“the ADJR Act”) and s 39A of the Judiciary Act 1903 (Cth).

7        The third respondent, Mr Weatherall, and the fourth respondent, NTSCORP, were joined to the proceedings on 21 June 2011 by order of Dowsett J. It is clear that his Honour had regard to the fact that both parties had appeared before the Delegate and had opposed the registration of the ILUA (transcript 21 June 2011 pp 46-47).

8        The parties in the substantive matter appeared before Dowsett J on 5 July 2011 and 2 August 2011, at which times the position of the joinder applicants arose. On that date the following exchange took place between his Honour and Mr Hiley QC (appearing for QGC):

HIS HONOUR: Yes, this rule needs a lot of investigation, I think. I don’t think we’re really in a position to do much about it. But that brings me to the next question and I suppose this one goes to you again, Mr Hiley. Is this matter said to have some commercial urgency?

MR HILEY: Not urgent-urgent, your Honour.

HIS HONOUR: All right.

MR HILEY: That is - - -

HIS HONOUR: Because I don’t think there is going to be a quick way out of this.

MR HILEY: I understand that, your Honour, and, in fact, if it were to go to the Full Court, I note the next sitting is November.

HIS HONOUR: Well, it’s possible that it can be done in another way. Maybe I can do it, but I also have a feeling that it’s going to overlap with the substantive application – native title application and it may well be that it will be very difficult to resolve this until the native title application is determined.

MR HILEY: Well, with respect, we wouldn’t want to wait that long.

HIS HONOUR: Well, you might have to, the way things are going.

MR HILEY: Yes.

HIS HONOUR: Because if the proper construction of the section is that it’s only people who are asserting – well, either that or it may be that these dissenting groups have to be joined as respondents.

MR HILEY: In the main claim?

HIS HONOUR: Yes.

MR HILEY: Yes.

HIS HONOUR: Or it may be that unless they do, unless they come in, they’re going to lose this application.

MR HILEY: Yes.

HIS HONOUR: But I suspect that what will happen if that happens is that they will come in.

MR HILEY: Yes. Well, with respect, the critical point in time for the delegate to consider the status, if I can call it that, of the Kamilaroi, would have been in the time when she made the decision.

HIS HONOUR: Well, that’s true, that’s true.

MR HILEY: So the fact that in 12 months these people could get joined as a party or make a claim – and, in fact, just to remind you of that section, I think it’s – that’s the first condition.

HIS HONOUR: But that would only avail you if a particular view was taken as to who was entitled to participate in the approval process of the ILUA.

MR HILEY: Yes, yes.

HIS HONOUR: It depends on that question, doesn’t it?

MR HILEY: Correct. And, with respect, that should be determined either as at the date of the authorisation meeting or certainly at the date of the delegate making her decision, but not later, not at a later date.

(transcript p 27 ll 13-46, p 28 ll 1-30)

9        The matter returned before his Honour on 2 August 2011, when the following exchange took place between his Honour and Mr Hardie (appearing for the second respondent in the substantive proceedings):

MR HARDIE: The other matter which your Honour has raised on several occasions, and sort of touched on in relation this morning is, is this really an issue between an indigenous people or is this an issue between QGC? And you raised it in the context of standing. In a sense it is really an issue between indigenous people. And I also represent the applicant now in the native title proceedings. And as a result of your Honour’s earlier comments about, not just in this matter but in other mattes such as Waluwara, about getting to the stage where we have almost on track for a consent determination and finding people putting up their heads, and professional obligations on legal practitioners to insure that the court – that if we are aware, that the matter is dealt with earlier rather than later.

I raised with Reeves J the position of the position of the Gamillaroi people because it is now abundantly clear that they are asserting an interest, not just in relation to the ILUA, but in relation to the native title claim, which is the real guts of the matter. I mean, that’s what we are – I need to be primarily concerned with. Although this ILUA provides many benefits to Aboriginal people that probably won’t even flow even if there was a determination. So this is not an unimportant matter. But the situation in relation to the native title claim, I indicated to Reeves J, and I even referred to your Honour’s comments, that perhaps the Gamillaroi – the court should make some orders joining the Gamillaroi people. Reeves J, rightly 5 in my view, said:

Well, that’s not a job for the court. That’s a job for you, Mr Hardie. You have got ethical responsibilities.

And I undertook to write to the Gamillaroi people at NTSCORP inviting them to become a party to the native title trial.

HIS HONOUR: But you can apply to have them joined.

MR HARDIE: I can, but the trouble is I now have a connection report in relation to the claim area and it is not as simple as it seems. That connection report provides some basis for the Bigambul people saying, one, what are you fighting about? There’s an assertion that the Bigambul people are in fact part of the Gamillaroi people. The Gamillaroi people isn’t one amorphous nation, it is made up of various groups. So that needs to be sorted out.

HIS HONOUR: But you’re entitled to join them. And in fact indeed one might say almost obliged to join them simply if they are asserting a claim that is consistent with yours.

MR HARDIE: Well, I have indicated to Reeves J, and I raised it with Reeves J, that I would write to the NTSCORP about this matter. But my point is, your Honour - - -

HIS HONOUR: I see what you mean. Yes.

MR HARDIE: - - - that inviting them to indicate whether they are going to assert an interest - - -

HIS HONOUR: And so that it will be funded.

MR HARDIE: Yes. Also so it would be funded. And to put it clearly so that no one can say at a later stage that Mr Hardie didn’t attempt to bring this issue before the court. And I am not going to be in that position, your Honour. So I am going to do what I can to get the matter before the court in the native title claim.

HIS HONOUR: But it may be that the easiest way is just to join them.

MR HARDIE: Maybe it is. Maybe it is, but I am certain – I am going to write to them first.

HIS HONOUR: All right.

MR HARDIE: So my point, your Honour, is that really the question to be considered and the question to be considered in the native title claim is somewhat analogous. In a sense the registrar – and I hate to say it, is really doing the court’s job in making some sort of decision as to who has an interest. I mean, my understanding is that that’s a job for the court. And with that in view 5 I believe that if this matter isn’t to be considered by the Full Bench there would be some utility in having the judge who is doing the native title claim doing this matter, so that at least the issues that may be raised here can also be considered in relation to the native title claim.

HIS HONOUR: I see. So what do you want me to do, ask Reeves J to do it?

MR HARDIE: I don’t want to – I am just saying, I would – I think that Reeves J – because many of the issues raised in this as to who are the right people for the area and whether there has to be a separate authorisation process or one authorisation process, whether Gamillarois are a separate group to Bigambul, or whether in fact there is a commonality of interests, a commonality of ancestors, they’re all matters that will have to be determined in the native title application. And in my view that because of that it will be some use, some economy in the court’s time, if the judge – I would like you to be the judge, but you can’t do everything, your Honour, that was doing the native title claim was also considering these issues in respect.

HIS HONOUR: I can’t. I am going to be away for the next two months; September/October. So I don’t think it’s really practicable for me to do it. And I think it probably has to be done in September/October because November is Full Courts and it will just become all the more difficult to get it on the schedule. The Full Courts are being scheduled now so unless there was somebody who had a day free, but it is said to be a very busy sitting so I doubt that we can do it. I think I will have to get somebody to do it between now and then.

MR HARDIE: Well, in my view then, your Honour, then the judge, justice – and I don’t – he is no doubt very burdened, but Reeves J, who is doing the native title application, where I have raised this matter recently, would seem to be – it would seem a good idea if he was doing this as well.

(transcript p 9 l 33 to p 11 l 37)

10        On 25 August 2011 affidavits were filed in these proceedings in support of the interlocutory application currently before the Court by the joinder applicants. The affidavits of Mr McGrady, Ms McGrady and Mr Priestley are substantially identical. They depose, inter alia:

    They are members of the Gomeroi Nation.

    As of June 2011 the Gomeroi People authorised a native title claim over that part of the land and waters within the Gomeroi Nation which is located in New South Wales. Each witness is a member of the proposed native title determination applicant in that claim.

    Through named apical ancestors they hold native title rights and interests in the area subject to the ILUA the subject of the substantive proceedings.

    They attended a meeting on 12 December 2009 in Goondiwindi in relation to the QGC-Bigambul ILUA, but they were not permitted to sign the attendance register.

    Thirty minutes into the QGC-Bigambul meeting the Gomeroi People in attendance left the meeting room, and were not allowed back in.

    On 17 and 18 August 2011 they attended a meeting convened by NTSCORP of the individuals authorised to be the Gomeroi Applicant. The participants at the meeting discussed, inter alia, the exchanges at the Federal Court hearings of 5 July 2011 and 2 August 2011 in relation to the identification and joinder of the relevant Gomeroi People to these proceedings.

    After that meeting the members of the Gomeroi Applicant present resolved to instruct NTSCORP as their legal representative to assist them to make an application for joinder on behalf of the applicants to the interlocutory application currently before the Court, to be joined to represent the relevant group of Gomeroi People with rights and interests in the specific area.

11        In his affidavit, Mr Green deposed inter alia:

    He is a member of the Gomeroi Nation.

    As of June 2011 the Gomeroi People authorised a native title claim over that part of the land and waters within the Gomeroi Nation which is located in New South Wales. He is a member of the proposed native title determination applicant in that claim.

    Through named apical ancestors he holds native title rights and interests in the area subject to the ILUA the subject of the substantive proceedings.

    He did not attend the QGC-Bigambul meeting of 12 December 2009.

    On 17 and 18 August 2011 he attended a meeting convened by NTSCORP of the individuals authorised to be the Gomeroi Applicant. The participants at the meeting discussed, inter alia, the exchanges at the Federal Court hearings of 5 July 2011 and 2 August 2011 in relation to the identification and joinder of the relevant Gomeroi People to these proceedings.

    After that meeting the members of the Gomeroi Applicant present resolved to instruct NTSCORP as their legal representative to assist them to make an application for joinder on behalf of the applicants to the interlocutory application currently before the Court, to be joined to represent the relevant group of Gomeroi People with rights and interests in the specific area.

12        Additional affidavits were filed in these proceedings in support of the interlocutory application by:

    Mr Santiago de Silva, solicitor at NTSCORP, sworn 24 August 2011. Mr de Silva deposes, inter alia, as to the steps taken by Mr Weatherall and NTSCORP to object to registration of the ILUA on behalf of Gomeroi People.

    Mr James Rose, anthropologist at NTSCORP, sworn 11 October 2011. Mr Rose deposes, inter alia, that in his opinion Gomeroi People hold traditional interests in part of the area subject to the ILUA.

    Ms Mischka Holt, Principal Solicitor at NTSCORP, sworn 11 October 2011. Ms Holt deposes, inter alia, as to communications between NTSCORP and Queensland South Native Title Services regarding the interests of Gomeroi People in the southern part of Queensland and in the area subject to the Bigambul native title claim.

13        Affidavits were also filed by Mr Peter Stokes, solicitor for the applicant, and Mr Colin Hardie, solicitor for the second respondent, exhibiting relevant correspondence.

Relevant principles

14        Section 12 of the ADJR Act provides as follows:

Application to be made a party to a proceeding

(1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Federal Court or the Federal Magistrates Court under this Act, may apply to the court to be made a party to the application.

(2) The court may, in its discretion:

(a) grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b) refuse the application.

15        In United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 526 the Full Court observed that it was necessary for a party seeking to be joined pursuant to s 12 to demonstrate that it has a sufficient interest to justify its joinder. Their Honours explained at 527:

The term “interest” has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person.

16        Should the applicants demonstrate sufficient interest however, the next question is whether the Court ought exercise its discretion to order joinder of that party.

17        I note that these principles have already been the subject of consideration by Reeves J in related proceedings, QGC Pty Ltd v Bygrave [2010] FCA 659 at [2], [21]-[22].

18        In light of the assertion by the joinder applicants that they hold native title rights and interests in relation to part of the area subject to the QGC Bigambul ILUA, neither QGC nor the second respondent dispute that the joinder applicants are “persons interested in the decision” the subject of review within the meaning of s 12 of the ADJR Act. In my view this is a proper concession in the circumstances of this case.

19        However both QGC and the second respondent submit that the Court ought exercise its discretion to refuse to allow the joinder applicants to be joined to the review proceedings. In summary, the grounds of opposition to the joinder, as further articulated by Mr Hiley QC and Mr Rangiah SC, at the hearing yesterday, are as follows:

    The interests of the joinder applicants are already represented in the proceedings by the third and fourth respondents. That this is so is demonstrated by the facts that:

o    the draft defence provided by the joinder applicants is in identical terms to the defence filed by the third and fourth respondents;

o    NTSCORP has indicated that, if joined, the joinder applicants will simply adopt the submissions to be filed for the third and fourth respondents.

    The presence of additional respondents may jeopardise the completion of next week’s hearing within the period currently scheduled.

    Unlike the third and fourth respondents, none of the joinder applicants made submissions to the Delegate at the time the decision under review was made.

    No explanation has been provided by the joinder applicants as to why they should be joined or what they could add to the proceedings.

    The affidavit material filed by the joinder applicants raises factual issues which were not before the Delegate, and which are not relevant to the application for judicial review.

    QGC and the second respondent have been put to extra expense dealing with the application for joinder and will be put to further expense dealing with factual material sought to be raised by the applicants for joinder if they are joined.

    Joining the joinder applicants raises the spectre of QGC and the second respondent incurring additional costs.

    The conduct of the applicants is contrary to s 37N of the Federal Court of Australia Act 1976 (Cth).

20        In summary, Ms Phillips for the joinder applicants submitted that the Court ought exercise its discretion to order her clients joined to review proceedings because:

    it is not in dispute that they have an interest in the decision the subject of the review; and

    the effect of joining the joinder applicants is that all parties with an interest will be present at the hearing next week, and allow proper disposition of the proceedings.

Consideration

21        In this case it is not in dispute that the joinder applicants are persons interested in the decision the subject of judicial review. However merely being “interested” in a decision within the meaning of s 12 of the ADJR Act does not automatically justify joinder to the relevant proceedings. As Pincus J observed in Re Telecasters North Queensland Limited and Far Northern Television Limited v Australian Broadcasting Tribunal [1988] FCA 295 at [40]:

Section 12 of the Judicial Review Act allows a person interested to apply to be made a party to such an application as this and, presumably with a view to affording a prospective party an opportunity to apply to come in. … In ordinary declaratory proceedings, according to Viscount Maugham in London Passenger Transport Board v. Moscrop (1942) AC 332 at p 345, “all persons interested should be made parties, whether by representation orders or otherwise, before a declaration by its terms affecting their rights is made”. It is safe to infer, from the fact that joinder of interested parties appears to be made discretionary by s.12 , that it is not essential that every party interested be joined in proceedings under the Judicial Review Act. Presumably, the Court is given a discretion because such joinder may in a particular case be seen to be inconvenient or unnecessary; cf. Ibeneweka v. Egbuna (1964) 1 WLR 219.

22        In my view, despite the interest of the joinder applicants in the review proceedings, discretionary considerations in this case favour the refusal of the interlocutory application before me. I take this view for the following reasons.

23        First, as became clear during the hearing yesterday, comments of Dowsett J in previous hearings concerning the desirability of the joinder applicants becoming parties related broadly to the joinder of the joinder applicants as respondents to the Bigambul People’s native title determination application, rather than the review application listed for hearing next week. In my view his Honour’s comments on 25 July 2011 and 2 August 2011, to which my attention was directed by the joinder applicants, must be considered in that light.

24        Second, I accept the submission of QGC and the second respondent that, because the joinder applicants are producing a defence identical to, and relying on the submissions of, the third and fourth respondents at the hearing next week, there would be no utility in ordering their joinder. In making this observation I note that NTSCORP is also acting for the joinder applicants. I also note that, until a claim is registered in respect of which the joinder applicants can be authorised to comprise the applicant in respect of the Gomeroi People, the status of the joinder applicants is the same as that of Mr Weatherall, namely individual members of the Gomeroi Nation. As QGC and the second respondent submitted, the third and fourth respondents are already contradictors to the application for review. In my view, the joinder of the joinder applicants would add nothing to the present proceedings and would not impact on the final disposition of the application for judicial review. In this respect I also note that the joinder applicants do not fall into any of the definitions in r 9.05(1) of the Federal Court Rules relevant to joinder, namely:

(1) A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

(a) ought to have been joined as a party to the proceeding; or

(b) is a person:

(i) whose cooperation might be required to enforce a judgment; or

(ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

25        Third, the joinder applicants seek joinder to the review proceedings at a very late stage. Unlike Mr Weatherall and NTSCORP, for example, they did not participate in the proceedings before the Delegate. To that extent, joinder of these parties in this particular case, with the added complication of additional material, could be seen to be inconvenient so as to mitigate against the exercise of discretion in their favour.

26        Fourth, to the extent that the joinder applicants seek joinder in order to air fresh grievances, set out in their affidavits, before the Court in the judicial review proceedings, the Court ought not provide a venue for such grievances in this context. As Bromberg J noted in Chandra v Webber (2010) 270 ALR 393, ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision (at [40]). There is nothing before me to suggest that evidence beyond the evidence that was before the decision-maker was relevant and admissible.

27        Finally, s 37N(1) of the Federal Court of Australia Act 1976 (Cth) provides:

(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

28        While the joinder applicants have an uncontested interest in the review proceedings, it is difficult to see that an order for joinder would do other than unnecessarily complicate and delay determination of the review proceedings, and potentially increase the costs of all other parties.

29        In relation to costs, Ms Phillips for the joinder applicants sought an order that costs be in the cause. In my view however the better approach is to allow costs to follow the event, particularly in light of the lateness of the application for joinder.

Associate:

Dated:    18 October 2011