FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255

FEDERAL COURT OF AUSTRALIA

Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255

CORRIGENDUM

1    In paragraph 61 of the Reasons for Judgment, add in between the first and second sentence in the second line the following sentence:

“So does the process of authorising the making of ILUAs under s 251A.”

2    In paragraph 63 of the Reasons for Judgment, in the second line, delete “s 251B” and replace it with “ss 251A or 251B”.

3    In paragraph 64 of the Reasons for Judgment, in the ninth line, delete “s 251B” and replace it with “ss 251A or 251B”.

Associate:

Dated:        9 May 2013

THE COURT ORDERS THAT:

1.    The meetings of 3 September 2011, 8 October 2011 and 12 November 2011 were not properly constituted meetings for the purposes of s 251B of the Native Title Act 1993 (Cth) (the Act) and that the resolutions of those meetings are invalid and of no effect.

THE COURT ORDERS THAT:

2.    Until a determination of native title, or further order, in relation to this matter (Leslie Weribone & others on behalf of the Mandandanji People v State of Queensland & others QUD 366/2008) (the Claim) and subject to Order 4, any monetary benefit payable to the applicant, the native title claim group named in the application or any member or members thereof or to any person or entity for or on behalf of any one or more of them (in these orders referred to collectively as the payee), as a consequence of the operation of the:

(a)    the Act; or

(b)    another legislative enactment pursuant to which benefits may be derived because:

(i)    the native title claim group has a particular status by operation of the Act; or

(ii)    a member or members of the native title claim group has a particular status by operation of the Act

the payee must do all things necessary to require that the benefit is paid to the Registrar of the Federal Court of Australia (the Registrar) to be held for the benefit of the native title claim group.

3.    In these orders:

1.    (a)    the expression “monetary benefit” does not include a payment made to or for the benefit of an individual as a bona fide reimbursement for travel, accommodation or expenses related to attending a meeting or negotiation, and

2.    (b)    “all things necessary” includes giving:

(i)    instructions to any lawyer, accountant, consultant or advisor assisting the native title claim group or retained by it; and

(ii)    an authority to the payer of any monetary benefit

to cause money to be paid in the way contemplated by this order.

4.    Within 7 days of the end of each successive calendar quarter (30 March, 30 June, 30 September and 31 December) any person receiving a reimbursement payment of the type referred to in Order 3(a) must prepare and submit to:

3.    (a)    the Registrar (or a nominee of the Registrar); and

4.    (b)    the applicant for the native title claim group

a written statement containing full and particularised details of:

(c)    all money payments and other benefits received by the individual or paid to another person or entity at the direction of that individual in the preceding three months; and

(d)    all meetings attended and activities undertaken in relation to matters arising because the person is a member of the native title claim group.

5.    Each person referred to in Order 2 must provide a direction and authority to the payer of, or person liable to pay, any money or benefit of the kind referred to in Orders 2 and 4 to provide information requested by:

(a)    the Registrar (or a nominee of the Registrar); or

(b)    (the solicitor for the native title claim group,

to verify payments made or benefits given of the type referred to in Orders 2 and 4.

6.    Unless the Court otherwise orders, within 7 days after the making of a determination of native title in favour of the native title claim group any money received pursuant to these orders by the Registrar must be paid out in accordance with a written direction of the relevant prescribed body corporate.

7.    If no determination of native title is made in favour of the native title claim group any money received pursuant to these orders by the Registrar must be paid out in accordance with an order of this Court.

8.    Within 90 days of the date this Order each person:

(a)    who has been one of those comprising the applicant for the Claim; and

(b)    who has received any money payment or benefit as a consequence of the operation of the:

5.    (i)    the Act; or

6.    (ii)    another legislative enactment pursuant to which benefits may be derived because:

7.    (1)    the native title claim group has a particular status by operation of the Act; or

8.    (2)    a member or members of the native title claim group has a particular status by operation of the Act,

must prepare and submit to:

9.    A.    the Registrar (or a nominee of the Registrar); and

10.    B.    the applicant for the native title claim group

a written statement containing full and particularised details of all money payments and other benefits received by the individual or paid to another person or entity at the direction of that individual as a consequence of that individual being a member of the native title claim group.

9.    Each person referred to in Order 8 must provide a direction and authority to the payer or person liable to pay any money or benefit of the kind referred to in Orders 2 and 4 to provide information requested by:

11.    (a)    the Registrar (or a nominee of the Registrar); or

12.    (b)    the solicitor for the native title claim group

to verify payments made or benefits given of the type referred to in Order 8.

10.    Each member of the native title claim group who is a director of any corporation that has received any payment or benefit:

(a)    for or on behalf of the native title claim group; and

(b)    as a consequence of the operation of:

(i)    the Act; or

(ii)    (ii)    another legislative enactment pursuant to which benefits may be derived because:

(1)    the native title claim group has a particular status by operation of the Act; or

13.    (2)    a member or members of the native title claim group has a particular status by operation of the Act

since 30 March 2009 must do all things necessary to require the relevant corporation to account to:

(c)    the Registrar;

(d)    the applicant; and

(e)    the solicitor for the native title claim group

within 90 days of the date of this Order for all payments and benefits (of whatever kind) received by that corporation since 30 March 2009.

11.    Any person affected by Orders 2 to 10 may apply to the Court by an interlocutory application on such notice as to the Court seems just, to vary or discharge such orders.

12.    Each application under s 66B of the Act:

14.    (a)    filed on 27 October 2011; and

15.    (b)    filed on 25 November 2011

be dismissed.

13.    Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the Binge applicant and the Mailman applicant and such other members of the native title claim group as are named in the application and persons descended from Dolly Clark may participate in a mediation before the Registrar for the purposes of agreeing a process for convening a meeting or meetings of the native title claim group to propose an applicant to replace the current applicant pursuant to s 66B of the Act, and negotiating any consequential case management orders that may be appropriate and, to the extent that the parties so desire, the Registrar may conduct a mediation between them with a view to resolving any or all issues between them.

14.    The proceedings be stood over to 28 June 2013 at 9:30 am.

15.    The orders made on 1 March 2013 be vacated and replaced with orders 1 to 14 made above.

16.    The Binge applicant, the Mailman applicant, Mandandanji Limited, Mandandanji Enterprises Pty Limited and Mandandanji Cultural Heritage Services Pty Limited attend, together with such other persons as consider they have an interest in or are affected by the operation of these orders, before the Registrar to mediate what amendments are desirable or necessary to be made to the orders made on 15 March 2013, so as to protect any legitimate commercial or other interests of persons in paying or receiving moneys under agreements that may be affected by these orders.

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

REASONS FOR JUDGMENT

1    These are competing applications for an order under s 66B of the Native Title Act 1993 (Cth) for nominated applicants to replace the current applicant in these proceedings. The proposed new parties have been called, for convenience, the “Binge applicant” and the “Mailman applicant”. On 1 March 2013, at the conclusion of the hearing I delivered reasons orally and made a number of orders. I remade the orders after a further hearing on 15 March 2013. These reasons are my reasons for those orders.

Background

2    The named applicant in the native title determination application that was made on 6 November 2008, which I will call, as 66B does, the current applicant, advanced a claim on behalf of “the biological descendants of Nellie Edwards, Combarngo Bill, Weribone Jack Senior and Mary Weribone”. That was the description of native title claim group. At a large meeting in Toowoomba in about mid-2006, Leslie Weribone, Alexandra Combarngo, David Combarngo, Phyllis Hopkins, Lorraine Tomlinson, Miranda Mailman, Silvia McCarthy, Violet Costa, Sarah Trindall and Leigh Himstedt were jointly authorised to make that application as the current applicant.

3    The parties in these applications agreed a considerable body of the facts, and the other facts are relatively uncontroversial, although the legal consequences that flow from them are the subject of considerable controversy. In broad outline, the Binge applicants claim that they have been authorised in meetings in September and October 2011 to bring an amended application for determination of native title on the basis of an expansion of the apical ancestors of the native title claim group by the addition of Dolly Clark. That was based on advice from a consultant anthropologist, Dr John Morton. The Mailman applicants assert that no valid change to the composition of the claim group has occurred, and dispute that Dolly Clark would properly be included in any description of the claim group.

The issues

4    The four substantial questions that arose at the first hearing on 28 February and 1 March 2013 were whether:

(1)    the basis on which the Mailman applicant opposes the Binge application under s 66B can be made out, namely that the meeting convened on 3 September 2011 was ineffective because no proper notice was given of the business to be conducted at it;

(2)     the 8 October 2011 meeting was procedurally flawed because of alleged defects in its advertising, the remoteness of Toowoomba from Roma, where many of the Mandandanji people were, and the differing numbers in attendance at the times that critical votes were taken;

(3)    the Court in its discretion under s 66B should, even if all procedural aspects of the application were satisfied, not now recognise the Binge applicant as a result of an asserted change in Dr Morton’s position in relation to the appropriateness of including Dolly Clark as an apical ancestor of the Mandandanji claim; and

(4)    if the Binge applicant fails, should the Mailman applicant replace the current applicant?

5    The parties were represented by experienced and able senior counsel who put their arguments with clarity and came to identify the real issues in the proceedings which has enabled me to move directly to those issues.

Background

6    The representative body that acts for the current applicant, Queensland South Native Title Services Limited, engaged Dr Morton to undertake anthropological research into the claim group. By early 2011, Dr Morton’s research had identified the possibility that Dolly Clark could be added as a further apical ancestor in the claim group description. He spoke to the members of the current applicant about the possibility of the addition of a further apical ancestor at meetings he held with them on 25 March 2011 and 5 August 2011.

7    The meeting of 5 August 2011, was held with Kay Whyte, a solicitor with Queensland South. At the meeting, Dr Morton told the current applicant’s members, who were present, of his findings and conclusions that he had reached in his research, including the possibility that Dolly Clark be added as a further apical ancestor. During that meeting, Ms Whyte received instructions from the current applicant to hold an authorisation meeting of the native title claim group in Toowoomba to consider the findings of Dr Morton’s connection research. The current applicant was also specifically advised that a recommendation would be made at the proposed authorisation meeting based on Dr Morton’s research that Dolly Clark be added as an apical ancestor in the claim group description.

8    Queensland South notified and convened an authorisation meeting in Toowoomba on 3 September 2011. The meeting was advertised by public notice in four newspapers. The notice identified the four current apical ancestors of the Mandandanji people by name and invited to the meeting all the persons who were members of that people, whose description was set out as being the descendants of those apical ancestors. The notice stated that the business of the meeting included that:

“The authorisation meeting will authorise matters including:

Expert evidence for the connection from pre-sovereignty to contemporary society;

    A claim group description that is consistent with the expert evidence, which may include amending the existing apical ancestors;

…” (emphasis added)

9    The advertisement made no mention of Dolly Clark. Still less did it refer to the specific purpose contemplated by the members of the current applicant in deciding to convene the meeting that she be added as a further apical ancestor to the description of the claim group. Further, the advertisement stated that Queensland South regretted that it was not able to assist with travel and accommodation costs for attending the authorisation meeting, although some morning tea, lunch, and afternoon tea would be provided to those who did attend.

10    Queensland South also sent a newsletter and 108 letters to all the Mandandanji people listed on its database notifying them of the details of the meeting. Queensland South also made telephone calls to members of the current applicant concerning the holding of the authorisation meeting and the inability to provide of travel assistance.

The September 2011 meeting

11    There is no suggestion that the way in which the meeting of 3 September 2011 proceeded was open to criticism, other than that the notice was not sufficient to inform its addressees of the business to be conducted. In broad, the persons who attended the September 2011 meeting registered their attendance, entering their names under their apical ancestors, and were given wristbands to identify who they were so that they were then able to take part. Descendants of Dolly Clark were also registered, but were not issued with a coloured wristband, which meant they were not able to speak or vote at the meeting. There was no explanation in the evidence of how descendants of Dolly Clark came to be at the meeting or to know of its business involving her. As I have said, the contents of the advertisement and other material giving notice of it that made no mention of her or the proposal to add her to the apical ancestors in the claim group description.

12    The September 2011 meeting was attended by 92 people, being 27 descendants of Weribone Jack, 4 descendants of Mary Weribone, 8 descendants of Combarngo Bill, 35 descendants of Nellie Edwards, a person who was recorded as “Edwards-Weribone” on the attendance register, and 16 descendants of Dolly Clark. Those attending included 9 members of the current applicant. At the meeting, the descendants of the four apical ancestors in the current application passed resolutions:

    confirming that there was no decision-making process under traditional laws and customs that the Mandandanji people had to use for making decisions of the kind contemplated relating to native title (see s 251B(b) of the Act);

    adopting the following decision-making process for the meeting in relation to authorising the making of native title applications and dealing with all matters relating to it, namely that:

(1)    a clearly worded motion reflecting the general consensus would be read to the meeting;

(2)    the decision proposed would be put in the form of a clearly worded resolution;

(3)    the resolution would be read out to the meeting and had to be moved and seconded by members of the claim group before a vote on it occurred;

(4)    the decision by the group would be then made by a show of hands;

(5)    a majority of those in attendance and eligible to vote would be an authoritative decision of claim group; and

(6)    the decisions so made would be binding unless altered by a resolution of a properly notified and convened Mandandanji people native title claim group meeting.

13    Using that decision-making process, a majority of 25 votes in favour with 20 against, and 6 abstaining, voted to include Dolly Clark as an additional apical ancestor in the description of the Mandandanji People native title claim. After that resolution was carried, two of the Mailman applicant members, Miranda Mailman and Lorraine Tomlinson, walked out of the meeting.

14    The meeting then dealt with additional motions that were displayed on a PowerPoint slide. Those were to amend the native title claim group description to add a further apical ancestor, namely Dolly Clark, and to hold a further authorisation meeting in Toowoomba on 8 October 2011 to amend the application so that it would be brought by the persons to be authorised as a replacement applicant. Those resolutions were acted on, and commencing on 17 September 2011 notices were placed in four local newspapers for an authorisation meeting to occur on 8 October 2011 at Toowoomba.

15    On 27 September 2011, Queensland South sent to all persons whose contact details appeared on its register of Mandandanji People, a newsletter together with 171 letters, advising of the new meeting. None of those letters was returned as undeliverable. The public notices, newsletter and notification letters requested people to register, in advance with an officer of Queensland South, their interest in attending the meeting. Prior to the meeting, approximately 130 people contacted Queensland South to register that interest.

16    Subsequently on 29 September 2011, some members of the current applicant filed an interlocutory application, seeking to cancel the holding of proposed meeting on 8 October 2011. Logan J dismissed that application on 6 October 2011 (Weribone v Queensland (2011) 197 FCR 397) and the meeting proceeded.

The October 2011 meeting

17    The advertised meeting occurred on 8 October 2011 in Toowoomba. Once again, persons attending had to register their attendance, entering their name under their apical ancestor, and when they did so, they received a wristband to ensure that they voted only under their named apical ancestor. The meeting was attended by descendants of each of the four original apical ancestors, as well as by descendants of Dolly Clark. In total 115 members of the proposed native title group were registered as attending, 56 being descendants of Weribone Jack, 14 of Mary Weribone, 2 of Combarngo Bill, 4 of Nellie Edward and 33 of Dolly Clark. A further six persons, who had no apical ancestry recorded, were visitors, making up the balance of 115 attendees.

18    The meeting resolved that:

    those in attendance were satisfied that the people at the meeting were sufficiently representative of the Mandandanji claim group, as authorised at the 3 September 2011 meeting, to make authoritative decisions about the claim, and that sufficient notice of the meeting had been given to enable those authoritative decisions to be made on that day about the claim (by 95 votes to nil, with one abstention);

    the native title group as amended at the authorisation meeting in September 2011 confirmed that there was no decision-making process under the traditional laws and customs of the Mandandanji People to make the decisions relating to native title (by 89 votes to nil, with one abstention);

    the same decision-making process as had been used for the September 2011 meeting would be used at this meeting (by 84 votes in favour to nil and one abstention);

    the new applicant, who would be appointed at the meeting, would be authorised to act on behalf of the claim group on the following terms and conditions (by 85 votes to nil, with one abstention) namely:

(a)    individuals forming the applicant represented the whole of the claim group and not their own family descent group;

(b)    if one or more of those persons was incapable, unable or unwilling to continue to act as the applicant, for whatever reason, the remaining persons who formed the applicant could continue to act as the applicant;

(c)    the applicant could not agree to reduce the claim area in mediation with any other party, without written advice provided by Queensland South, setting out the evidential grounds, and if it had that advice it could take formal steps on behalf of the claim group to effect an agreed reduction without conducting an authorisation meeting, provided that a majority of 75% members of the applicant voted to do so;

(d)    the applicant could negotiate and reach agreement with respect to future act matters;

(e)    the applicant, as far as possible, was to act according to traditional law and custom, to utilise elder structures and family groups to communicate information, and would seek advice on the progress of the applications;

(f)    where a person had been appointed as a member of the applicant, but did not attend a properly convened and notified applicant meeting, the other members of the applicant who attended could make binding decisions in that person’s absence; and

(g)    the applicant could not terminate the retainer of the solicitor appointed to prosecute the native title determination application without a resolution passed by a majority of those present at a properly convened meeting of the claim group;

    the replacement applicant group would be made up of ten members, with six to form a quorum (by 80 votes to nil, with 12 abstentions);

    the current applicant be no longer authorised to be the applicant in these proceedings (by 80 votes to nil).

19    Another resolution authorised a group, being the Binge applicant, consisting of Zeta Binge, Ronald Binge, Sarah Trindall, Tracy Landers, Leslie Weribone, David Combarngo, Barry Landers, Peter Costa, Aliantha Costa and Vincent Anderson, to be the replacement applicant for the claim.

20    The next resolution authorised the Binge applicant to apply under s 66B of the Act to be the applicant in these proceedings (by 78 votes to nil, with one abstention).

The Binge application

21    On 27 October 2011, the Binge applicant filed an interlocutory application, seeking orders that it replace the current applicant, and that the Binge applicant subsequently be granted leave, pursuant to s 64 of the Act, or r 8.21 of the Federal Court Rules 2011 (Cth), to amend the native title determination application, in a form annexed to the interlocutory application. Soon after, David Combarngo stated that he was no longer willing to be part of the replacement applicant, as appointed at that meeting. Yesterday, I ordered by consent, that he be removed as part of the Binge applicant. Each of the Binge applicant’s members, other than David Combarngo, swore an affidavit in these proceedings, that he or she was a member of the newly described claim group, that included Dolly Clark, as an apical ancestor.

The November 2011 meeting

22    Shortly after the 8 October 2011 meeting, disaffected members of the current applicant, and persons with whom they were associated, placed public notices for an authorisation meeting under s 66B, in local newspapers, calling a meeting in Roma on 12 November 2011. The business of that meeting included whether the Mandandanji registered native title claimant (i.e. the current applicant), continued to be authorised by the claim group to deal with all matters under the Act, and in the event that it were not, to select a new applicant, and authorise that replacement applicant to make an application under s 66B.

23    At the meeting on 12 November 2011, a total of 68 persons attended, being 12 apical descendents of Combarngo Bill and 56 apical descendents of Nellie Edwards. No apical descendents of either Mary Weribone or Weribone Jack Senior attended. That meeting resolved, in a way that is not controversial in these proceedings, to appoint the Mailman applicant to make an application under s 66B. An interlocutory application seeking an order on that basis was filed on 25 November 2011.

Events after the meetings

24    Subsequently, these proceedings were managed by a Judge of the Court with a view to resolving the two competing s 66B applications. Initially, his Honour ordered that a separate question be tried, on an interlocutory basis, to resolve the issue as to the composition of the claim group. However, on 26 February 2013, I set that order aside. The parties had been unable to agree on the preparation of a bundle of documents to be used to give effect to directions that I had made for the hearing of the separate question. I was not satisfied that, given the issues between them, the proposed question would produce an answer that would meet the requirements for ordering the hearing of a separate question identified in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 358-360 [52]-[58] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

25    Ms Miranda Mailman said in her affidavit of 27 September 2011 that she considered the attendance at the September 2011 meeting was low because many Mandandanji People, especially the elders and families with young children, could not get to Toowoomba. She said that the major population centre on the traditional lands was in the Roma area and that a great number of Mandandanji People resided in the Roma area and its surrounds. She said that at the 3 September 2011 meeting, she had asked to see Dr Morton’s connection report and was told that it was not yet ready. Ms Mailman said that she had been upset by that response and, as a result, she walked out of the meeting with seven other claim group members.

26    The parties agreed that a representative affidavit of complaints by some of the members of the claim group who resided at Toowoomba had been made by Ronald Manns senior on 12 November 2011. He said that he had been unable to attend the Toowoomba meeting on 8 October 2011 because it was too difficult to travel there from Roma, where his home was.

27    Ms Silvia McCarthy, who was one of the members of the current applicant, saw a notice in the Toowoomba Chronicle on about 24 September 2011 advertising the 8 October meeting. She claimed in her affidavit of 23 November 2011 that she did not understand the purpose of the meeting because she thought that the current applicant was still in its position. She said that she was one of its members and that she understood that the meeting had only been called to deal with something that the Court required to in order to amend the claim. She asserted that she did not understand the purpose of the October 2011 meeting was to determine whether she should be replaced as a person forming part of the current applicant and did not attend for that reason.

28    While the two competing applications under s 66B were pending, each side continued with its anthropological research. The Mailman applicants engaged Dr Gaynor Macdonald to prepare an anthropological report. Pursuant to orders that the Court made, Dr Morton and Dr Macdonald held a meeting on 8 November 2012 and produced a joint report. They agreed in that joint report that the nominated claim area in the existing application related to an area that contained the country of the Upper Balonne River and part of the country of the Lower Balonne. The experts agreed that the original four apical ancestors named in the application, together with the descendants of Dolly Clark, “have the right to identify with parts of the claim area”. They agreed that a basin drainage analysis provided in Dr Macdonald’s report of October 2012 provided a convincing model for understanding the way in which local territories were configured at white sovereignty. They noted that according to that model, there was a natural boundary in the catchment break between the Upper and Lower Balonne River systems at the Maranoa junction. This was effectively shown on a map with the Upper Balonne to the north and the Lower Balonne area described, in Dr Macdonald’s nomenclature, as “local territory status not yet identified”.

29    The experts agreed that the Upper Balonne was Mandandanji country and that that was consistent with the cultural history and current understandings of the southern Mandandanji boundary put forward by the Combarngo, Nellie Edwards and Mary Weribone groups as had been summarised in Dr Morton’s report of October 2011. The experts agreed that each of those families, together with the Weribone family, had apical ancestors as identified in the original application who had been traced to the Upper Balonne. They went on to say:

“The descendants of Dolly Clark have a right to identify with the lower Balonne, which may be part of the wider Gunggari/Gugayi language-territory, of which Mandandanji country is also a part.

We believe that the regional identity of the lower Balonne requires further investigation and consideration.” (emphasis added)

30    The argument before me proceeded on the basis that the above evidence accurately and sufficiently identified the factual matters necessary to resolve the two interlocutory applications, albeit that it was significantly condensed from a much wider body of material that had been deployed previously for the purposes of the separate question.

The statutory scheme

31    The relevant features of the statutory scheme for present purposes, are as follows. Under s 13 of the Act, an application may be made to the Court for determination of native title in relation to an area for which there is no approved determination. Section 61(1) of the Act provides that a native title determination application may be made relevantly 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 particular native title claimed, provided the person or persons are also included in the native title claim group.” (emphasis added)

32    The formalities to support such an application are set out in s 62A and do not presently arise for consideration. The applicant in a claimant application, such as the present, may deal with all matters arising under the Act in relation to an application. Applications may be amended in accordance with s 64 of the Act. Critically, ss 66B(1), (2) and 251B provide:

“66B    Replacing the applicant

Application to replace applicant in claimant application

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)    the person consents to his or her replacement or removal;

(ii)    the person has died or become incapacitated;

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note:    Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

Court order

(2)    The Court may make the order if it is satisfied that the grounds are established.

…

251B    Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.” (emphasis in the Act)

33    The authority for each of the meetings to proceed, if validly called, on 3 September, 8 October and 12 November 2011, derived from s 251B(b). Additionally, s 84D enables the Court to make orders requiring a person who, either alone or jointly with another person, made an application under s 61 to produce evidence that they were authorised to make it and to deal with matters, or requiring a person who has dealt, or is dealing, with a matter arising in relation to such an application, to produce such evidence. The Court can also do so on its own motion, if need be, but after balancing the need for the due prosecution of the application and the interests of justice, the Court can still hear and determine an application despite any defect in its authorisation and make such orders as it considers appropriate where the application itself does not comply with s 61 if the conditions set out in s 84D(3) are satisfied.

(1)    Was the notice for 3 September 2011 meeting sufficient?

34    The first question is whether the notice of meeting for the 3 September 2011 meeting was sufficient to enable the business conducted at the meeting validly to include adding the descendants of Dolly Clark to the claim group. As I have mentioned, the notice itself made no mention that Dolly Clark was to be put forward as a proposed new apical ancestor to be included in the description of those who formed the claim group. Rather, the notice was expressed in vague and open-ended terms. It referred to authorising “a claim group description that is consistent with the expert evidence which may include amending the existing apical ancestors” (emphasis added). The expert evidence of Dr Morton, at that time, was that there was a possibility that Dolly Clark, and only Dolly Clark, should be added as a further apical ancestor. However, what was proposed, and the way the meeting proceeded, as those who called the meeting intended, was to deal with whether she alone should be added to the description of the apical ancestors of the present claim group.

35    There are significant distances separating persons who live in the broad area of the claim group, including between Roma and Toowoomba, creating difficulties for persons who are resident in or near either of those two centres to get to the other. The evidence, including the expert evidence, also suggests that the preponderance of claim group descendants of apical ancestors in the Roma region trace their lineage to Combarngo Bill and Nellie Edwards. The two groups descended from those two apical ancestors had very small representation at both the September and October 2011 meetings. The evidence also suggests that those descendants appear not to accept that Dolly Clark is, in fact, a member of the claim group.

36    In Daniel v Western Australia (2002) 194 ALR 278 at 283 [11] French J said:

“It is of central importance to the conduct of native title determination applications and the exercise of the rights that flow from their registration, that those who purport to bring such applications and to exercise such rights on behalf of a group of asserted native title holders have the authority of that group to do so.”

His Honour then discussed the considerations applicable to applications under s 66B, pointing out the significance of the authority and status conferred on an applicant in native title proceedings under the Act: see 194 ALR at 283-284 [12]-[16].

37    The proper identification of the native title claim group is the central or focal issue of a native title determination: Landers v State of South Australia (2003) 128 FCR 495 at 504-505 [35] per Mansfield J. His Honour said that (128 FCR at 505 [37]-[38]):

“Registration of a native title determination application gives the claimants the status of being a native title party for the purposes of Div 3 of Pt 2 of the NT Act, and the rights which attach to that status pending the determination of the native title application. ...

As the Second Reading Speech of the Attorney-General (Hansard, House of Representatives, 9 March 1998, p 781) indicates, the introduction of the registration provisions by the amending Act was to ensure only those with “a credible claim” should become eligible as a “native title party”. It also sought to avoid in the future that status being accorded to those who had made an application for determination of native title under the old Act, without the need for authorisation under s 251B, and who may have made “ambit and unprepared claims”. ... The circumstances of different applicants on behalf of the same native title claim group separately seeking determination of native title over the same, or partly the same, claim area would tend to indicate some flaw in the authorisation process. The proper course, before registration, may be for the native title claim group under its proper processes to substitute new applicants in one or other of the claims under s 66B of the NT Act or to have one or other of the authorised claims amended to avoid any overlap.”

38    Here, of course, a properly conducted authorisation process under s 251B may result in one or other version of the potential claim group having persons appointed as a replacement applicant, even though the contentious anthropological position would remain unresolved until a final hearing of the present application. The decision-making process utilised in initiating an application to replace an applicant must satisfy the requirements of ss 66B and 251B: Daniel 194 ALR at 285 [18]. In Ward v Northern Territory [2002] FCA 171 at [24]-[25] O’Loughlin J set out requirements that, in substance, would be important in ascertaining whether a meeting had been properly called and conducted for the purpose of authorising a replacement applicant under s 66B. His Honour identified at [24] the following presently relevant substantive issues:

“The information concerning the meeting that was held on 27 January 2002, … is wholly deficient. There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and how was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended?”

39    And, 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 [25] Stone J held that it was sufficient for a decision to be valid to authorise a person or persons to make an application under s 251B if the members of the claim group had been given every reasonable opportunity to participate in the decision-making process. The decision-making process must proceed on the basis of an informed consent or vote by those properly entitled to notice of the meeting of the claim group: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45]-[46] per French J.

40    I am of opinion that the notice of the 3 September 2011 meeting did not give fair notice that that was the business to be considered at the meeting. Notices of meeting of native title claim groups called to authorise the progress of claims under the Act need to be clearly, simply and directly expressed. The Court must be mindful that the class of persons to whom such notices will be addressed are not lawyers, but indigenous people from many varied walks of life who have greater and lesser degrees of sophistication and understanding. Ordinarily, it would not serve any purpose to require such notices to set out at great length and detail material of the nature that is sometimes sent to members of a corporation who are asked to consider amending or voting on resolutions put forward by directors. Nonetheless, the basic test that the common law has developed for notices calling meetings is suitable and adaptable to meetings such as those called under s 251B of the Act. The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. That test conforms to the substance of what the Full Court of this Court synthesised as the test for a valid notice of meeting identified in a well-known line of authority in corporations cases: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466B-C per Black CJ, von Doussa and Cooper JJ.

41    Where a current applicant, or another person, wishes a meeting of a native title claim group to consider particular business or to proceed along a particular path that that applicant or person has in mind, the proponent must give fair notice of the business to be dealt with at the meeting to all members of the claim group. The notice must be such as will fully inform the persons entitled to attend the meeting, so that they can make an informed decision whether or not to be present.

42    I am satisfied that it would have been material to the consideration of members of the claim group to whom the notices of the 3 September 2011 meeting were addressed to know specifically that what was always to be discussed at the meeting was a resolution seeking to add Dolly Clark as an apical ancestor in the description of the claim group.

43    I am not satisfied that the Binge applicants have established that proper notice of that business was given in the notices of the 3 September 2011 meeting. That is particularly because the current applicant proposed on 5 August 2011 that that meeting be called for the very purpose of considering a resolution to add Dolly Clark, specifically, as an apical ancestor in the description of the claim group but no notice of that specific proposal was given to the members of the native title claim group who were entitled to attend the meeting. That being the case, the resolutions at the September 2011 meeting were not valid resolutions of the current claim group and were incapable of changing its nature and membership.

(2)    Was the 8 October 2011 meeting otherwise valid?

44    It follows from the above finding, that the 8 October 2011 meeting was not constituted by a valid notice of meeting. This is because it called together persons who were not members of the claim group and entitled them to vote on the business that was conducted at that meeting. Moreover, the October 2011 meeting was conducted on the mistaken premise that, by then, the claim group’s description had changed in accordance with the resolution adding Dolly Clark as an apical ancestor: cf Bolton [2004] FCA 760 at [45]-[46].

45    The Mailman applicants also raised an issue as to whether that the stated purpose of the 8 October 2011 meeting was confusing or misleading by stating that it sought to:

“•    Authorise an Applicant to bring the Mandandanji People’s native title determination and deal with matters arising in relation to it on behalf of the Mandandanji People as newly described; and

•    Determine the role of the Applicant in the Mandandanji People’s native title determination application and the scope of their authority.”

46    I am not persuaded that this was an unsatisfactory or irregular description of the business proposed to be conducted at that meeting. The notice identified that a new claim group had been constituted by the decision made at the meeting of 3 September 2011. It stated who the old and the new apical ancestors for each description of the claim groups were, and stated clearly that the business of the meeting was to deal with how the new claim group wished the application currently on foot to proceed.

47    The Mailman applicants also argued that the remoteness of Toowoomba from Roma was a factor to be considered in relation to the validity of the meeting on 8 October 2011 based on what Ms Mailman and Mr Manns had said in their affidavits.

48    In my opinion, in cases where a claim group meeting must be held, it will always be necessary to identify a place for the meeting. There are at least substantial numbers of people within each potential description of the claim group who live in the Roma and Toowoomba areas. It may be that Roma is a more appropriate place for a meeting, especially since the genesis of the original application arose there and a large number of people attended the meeting there in mid 2006 to authorise the initiation of the current claim. However, I do not think this would be a sufficient basis on which to negate the validity of the meeting, had it been otherwise properly constituted.

(3)    The effect of the apparent subsequent change in Dr Morton’s opinion

49    The next substantive consideration is whether, as a matter of discretion, I should grant either application under s 66B. The Mailman parties argued that, particularly in light of the apparent change by Dr Morton of his position, in the joint expert report, in relation to Dolly Clark since the meeting of 3 September 2011 was informed of his earlier opinion, it would not be appropriate now to authorise the Binge applicant. I think there is some substance in that argument, but I do not need to make any decision on it. For the reasons I have already given, the Binge application must fail.

(4)    Should the Mailman applicant replace the current one?

50    The Mailman applicant seeks an order itself under s 66B, the way having been cleared for its application to proceed by my rejection of the Binge applicant’s claim.

51    I have had regard to the history of the matter and the fact that there is a substantial bona fide dispute among the existing and potential claim group members. There is uncertainty in the conclusions available at the present time in the anthropological evidence as to the correct claim group description. Real potential for injustice exists in appointing one or other of the proposed replacement applicants. That is because persons in the original claim group, who considered that the Binge applicant had been validly appointed in the September and October 2011 meetings, for that reason, may not have attended at the November 2011 meeting.

52    It would not be in the interests of justice to grant the Mailman application. That application was based on the November 2011 meeting. It is likely that a significant part of the constituency would have been misled, unintentionally, by their awareness of the resolutions in one or both of the earlier two meetings that expanded the definition of the claim group and later appointed the Binge applicant. Those persons may have been misled into thinking that the November 2011 meeting itself had not been validly constituted. That could have been because the description of the claim group appeared to have been expanded by the September 2011 meeting and the descendants of Dolly Clark had not been invited to the November 2011 meeting. For these reasons, it seems to me it would be productive of injustice to grant the Mailman application.

53    I am not satisfied that what happened at the November 2011 meeting was a decision-making process that was, in the words of French J in Bolton [2004] FCA 760 at [46], “demonstrated, to reflect in any legitimate sense, the informed consent of the members of the native title claim group or persons properly representing them as a substitute for the authorisation required by the Act.” That position has not occurred through anyone’s fault. It simply arose because I have now found that the resolution to add the descendants of Dolly Clark that was passed at the original September 2011 meeting was invalid and that that meeting had not been validly called to consider that business.

54    Accordingly, I do not consider that the meeting, in that context, had been validly called. The members of the existing, original claim group were not properly informed about the invalid status of the earlier meetings. Until now there has been no judicial determination of the invalidity of the September and October 2011 meetings.

Conclusion on the S 66B applications

55    The position now is that there is no longer an applicant authorised by the claim group to make or prosecute the existing application and deal with matters arising in relation to it. A new meeting of the claim group must be held to authorise a replacement applicant. There is a significant division between the members of the originally-constituted claim group and the potential membership of a group that might include descendants of Dolly Clark if, at a validly called and conducted authorisation meeting, the descendants of Dolly Clark were added to the description of that group. There is also considerable uncertainty in the anthropological evidence at the moment as to whether that would be an appropriate course.

Protection of the assets held or acquired by or through the applicant

56     I raised with the parties at the outset of the hearing on 28 February 2013 a concern that I had as to the need to protect the assets of, and available to, the persons who would benefit from a finding by the Court in due course that native title existed in this matter. I was concerned that, given the substantial bona fide differences on the anthropological evidence and in the adherence of each of the Binge and Mailman applicants respectively of their understandings of who properly could constitute the claim group, that I should protect the assets until a final determination of who was entitled to them. That was because there is here a substantial controversy. I suggested that the Court should grant an injunction to hold the status quo. That injunction would also extend to restrain whoever ultimately becomes appointed to be the replacement applicant under s 66B and anyone who currently holds money on behalf of the current applicant from dealing with or utilising any moneys or status as an applicant under the Act to obtain or spend money, or use any future act rights or rights under indigenous land use agreements, except with the approval of the Court.

57    I asked the parties to formulate the terms of an interlocutory injunction to protect the status quo and to ensure that any moneys and rights that currently are held for the purposes of the ultimate claim group, will be protected and only made available to be used with the approval of the Court. On 1 March 2013, each of the Binge and Mailman applicants provided draft orders, the former’s being more comprehensive, and the latter’s being economical in their scope.

The additional relevant legislation

58    In addition to providing for the making of indigenous land use agreements (ILUAs), the Act provides for agreements in respect of future acts which are often called s 31 agreements. Ordinarily, under s 31 of the Act native title parties, including an applicant in proceedings such as these (s 30(1)(a)), or a registered native title body corporate (s 30(1)(b) and (c)), has a right to negotiate in respect of future acts that third parties may wish to carry out on the claim area, such as mining exploration or exploitation activities. The native title parties are entitled to negotiate for payments worked out by reference to profits or income to be derived or things produced by the activities conducted or proposed by a third party in relation to the land and waters in the claim area (s 33). The special character and advantages that these rights give an applicant may give rise to fiduciary obligations to the actual native title claim group by the applicant and its members, but it is not necessary to explore in depth that question in these reasons.

59    An applicant in proceedings under the Native Title Act such as these is a native title party for an area for the purposes of s 34(1)(a) of the Aboriginal Cultural Heritage Act 2003 (Qld) (the ACH Act). In that capacity, an applicant can promote a new corporation to be an Aboriginal cultural heritage body for the area that the State Minister can then register under s 36. The function of such a corporation is to identify, “for the benefit of a person who needs to know” under the ACH Act, who are the Aboriginal parties for the whole or part of the area (s 37(1)). The Minister can give funding to that corporation (s 37(2)). The persons who “need to know” matters for the purposes of s 36 will often pay the corporation significant sums of money for the information it provides.

The need for the Court to protect the status quo

60    Ordinarily, intra-mural disputes involving issues as to whether internal processes have been observed in claim group decision-making or internal disputes within a claim group, will be resolved in accordance with a process under s 251B, as Mansfield J explained in his lucid exposition of the principles in Starkey v South Australia (2011) 193 FCR 450. The current dispute is of a different character. French, Finn and Hely JJ remarked in Davidson v Fesl [2005] FCAFC 183 at [25] the definition of the claim group is of great importance. In that case, there were serious disagreements concerning the identification of the claim group. Their Honours said:

“While the identification of the claim group is so constrained and contentious it is difficult to see how the question of authorisation, which is dependent upon that definition, can ever satisfactorily be resolved.”

61    The authorisation of an applicant to make a native title application and to deal with matters arising in relation to it under s 251B has hallmarks of a fiduciary relationship. In John Alexander's Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 at 34-35 [87] (and see too at 34-36 [86]-[92]) French CJ, Gummow, Hayne, Crennan and Kiefel JJ approved the identification by Mason J in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 96-97 of:

“the critical feature of what may be called the accepted traditional categories of fiduciary relationship – trustee-beneficiary, agent-principal, solicitor-client, employee-employer, director-company, and partners inter se. That critical feature was ‘that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense’. From this power or discretion comes the duty to exercise it in the interests of the person to whom it is owed.” (footnotes omitted; their Honours’ emphasis)

62    And, as McHugh, Gummow, Hayne and Callinan JJ held in Pilmer v Duke Group Limited (In Liq) (2001) 207 CLR 165 at 197-198 [74], 199 [78]-[79], unless the fiduciary has the informed consent of the person to whom such a duty is owed, he, she or it has a duty first, not to obtain any unauthorised benefit from the relationship and, secondly, not to be in a position where the interests or duties of the fiduciary conflict, or there is a real or substantial possibility they may conflict, with the interests of the person to whom the duty is owed. Once again it is not necessary to explore further in these reasons whether or how such obligations apply here, beyond recognising that there is a real possibility that they may.

63    Nor is it necessary here to describe or work out the precise balance to be struck between what is conferred on an applicant by a general authorisation under s 251B to act on behalf of the native title claim group and what it can agree with third parties for it, its members or others to receive as recompense for work, effort and expenses in carrying out what obligations are imposed on them by such agreements. It suffices to say that any powers conferred on an applicant by an authorisation under s 251B cannot be used for an ulterior purpose: cf Ngurli Limited v McCann (1953) 90 CLR 425 at 438-440 per Williams ACJ, Fullagar and Kitto JJ, Vatcher v Paull [1915] AC 372 at 378 per Lord Parker.

64    The rights that the Act confers on an applicant to negotiate ILUAs and s 31 agreements, and the similar rights under State and Territory legislation, are important. They often facilitate the pursuit by third parties of activities on lands and waters that are the subject of unresolved, pending applications for determinations under the Act of whether and what native title rights and interests exist in respect of those lands and waters. The Parliament created the rights to negotiate ILUAs and s 31 agreements as a means of protecting the legitimate interests of those third parties to pursue such activities, despite there being no certainty as to the ultimate outcome of proceedings for a determination of native title under the Act. Thus, the authorisation created by following a process under s 251B of the Act must be construed in a practical and realistic manner as permitting the applicant to exercise sufficient authority as will allow negotiation and finalisation of ILUAs, s 31 agreements and similar contracts on behalf of the native title claim group. That authority also might ordinarily be expected to enable reasonable and appropriate remuneration, reimbursement or reward for necessary work, expenses and activity to be undertaken by or on behalf of an applicant in giving effect to reasonable, necessary or appropriate actions relevant to the particular agreement.

65    For example, a mining company or local government authority may need to know whether an area or particular location, on which it proposes to do work or undertake an activity, is of significance to the native title claim group for cultural or other reasons. It would ordinarily be reasonable for transparent and appropriate arrangements to pay and reimburse members of the applicant, others with appropriate knowledge of the area or location, including if need be an anthropologist or lawyer, or persons in the native title claim group, to provide such work or assistance. On the other hand, the right to negotiate ILUAs, s 31 agreements or other similar contracts, ordinarily, could not be used to enrich the applicant or its members or others at the expense or to the detriment of the native title claim group as a whole.

66    Where there is a real and live controversy that at a final hearing it may not be the correct applicant, the mere fact that one party may be able, procedurally, to satisfy the Court that it is entitled, for the purposes of conducting the proceedings, to be the applicant, may not be sufficient to enable that party, to the detriment of the native tile claim group, to use its interim status as the applicant to take advantage for itself or its associates of rights under the Act or rights that that party can assert as a result of a status under the Act, that are intended for the benefit of whoever may be found at trial to be the claim group. Those rights were not intended to be conferred beneficially on the particular membership of the applicant or its associates for the time being. Rather, the Act intended that a determination of native title would benefit the claim group by recognising their continuing rights to land and waters and permitting them, not a mere procedural intervener who was subsequently displaced, to benefit from their native title rights and to retain or obtain control over rights that had been acquired earlier by virtue of the applicant’s status as the party bringing proceedings for that determination.

67    In Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at 32-33 [35] Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ discussed the principles upon which interlocutory relief may be granted, saying:

“The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v Sterling Industries Ltd [(1987) 162 CLR 612 at 621]:

“A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order.”

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked [see Tait v The Queen (1962) 108 CLR 620]. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding.” (emphasis added)

68    It is necessary to ensure that transparency is brought to bear on what is currently being done with those rights and interests, and to protect them from being dissipated in a way that is not under the supervision of the Court. At the moment those rights and interests are not under the control, in a transparent fashion, of the members of the native title claim group themselves because of the bona fide dispute as to its composition and the absence of anyone who is presently capable of acting as the applicant.

69    If one of the two potential claim groups here were able to authorise a replacement applicant who would have full authority to deal with rights, interests and assets that it could access or control because of its status, the process of the Court could be frustrated if at a final determination it found another claim group was actually entitled to those rights, interests and assets. There is uncertainty as to what, if any, agreements, such as ILUAs and the like, have been negotiated and what, if anything, has been done about benefits that may currently flow to persons under those agreements who may or may not be connected to the making of this application. The Court has power to make orders that ensure protection of such assets, rights, and entitlements of the persons ultimately found to possess native title rights and interests in the claim area by reason of their recognition in the Native Title Act and in their common law rights of the indigenous people of this country recognised in Mabo v Queensland [No 2] (1992) 175 CLR 1.

70    However, it is important that the rights of third parties which may be affected by the orders that I propose to make be adequately protected lest they interfered with unintentionally or unjustifiably: Patrick 195 CLR at 41-43 [65]-[66]. For that reason, I expressly reserved the right to any third party affected by the orders to apply to have his, her or its position specifically addressed or remedied.

71    For the reasons above, I made the orders substantially in the form drafted by Counsel for the Binge applicant because they best reflected what I indicated on 28 February 2013 would be necessary. These were intended to protect the interests of persons who may ultimately be entitled in these proceedings. I considered it to be necessary to make that series of orders to protect and, to the extent possible, secure any money or other entitlements that have been obtained by any persons, including the current applicant and members of the native title claim group or their associates, as a consequence of the bringing of these proceedings. Those moneys and entitlements ought be available or accounted for to the persons ultimately found to be entitled to the benefit of a determination of the native title in the proceedings being the claim group.

Events after 1 March 2013

72    After I had made the orders on 1 March 2013, the parties and I suggested drafting changes that were circulated before the orders were to be formally entered. However, on 7 March 2013, Mr Hardie, the solicitor for the Mailman applicant, raised questions in an email as to whether the orders were intended to affect moneys payable to Mandandanji Cultural Heritage Services Pty Ltd, a subsidiary of Mandandanji Ltd, by persons reimbursing it for payments to certain claim group members and for services it performed in providing cultural heritage services. He wrote that currently $1.2 million was due to be paid by Santos Ltd. Mr Hardie asserted that Santos was reluctant to pay until the scope of the orders of 1 March 2013 was clarified. The email also referred to two other enterprises conducted by Mandandanji Enterprises Pty Ltd, another of Mandandji Ltd’s subsidiaries, which provided vehicle washing services and leased four wheel drive vehicles. As a result, I ordered that the proceedings be relisted on 15 March 2013 and that the Mailman applicant and any other party seeking a variation of the most recent version of the drafting changes to the 1 March 2013 orders put on evidence and make submissions in support of any proposed variation to those orders.

The further evidence

73    The Mailman applicant relied principally on evidence in an affidavit of Lorraine Tomlinson, who is a member of the current applicant. She identified the three companies in the Mandandanji Ltd group and described its structure. She noted that Mandandanji Ltd had charitable objects and that nine of the ten members of the applicant comprised its board together with three other persons. Ms Tomlinson said that the tenth member of the applicant was not a director because she lacked capacity. The company has 166 members, each of whom is related to one of the four original apical ancestors in the claim group.

74    Ms Tomlinson said that the company’s income to date had mainly been derived from ILUAs with QGC Pty Ltd, Origin Energy and Australian Pacific LNG, as well as “from s 31 agreements negotiated under the right to negotiate process with QGC Pty Ltd, Epic Energy Pty Ltd and Santos Limited”. She said that the largest payments by far had, or would, come from the ILUAs with QGC and Origin Energy. Ms Tomlinson said that most of the benefits under those agreements required viable businesses to be established. She explained that the applicant had agreed to lend $1.15 million out of funds provided by Origin Energy and Australian Pacific LNG to establish Mandandanji Cultural Heritage Services as a cultural heritage services provider. She said that, except for a contract that it had directly with Santos, this company provided its services under ILUAs or s 31 agreements as a direct result of the status of the applicant under the ACH Act. Ms Tomlinson said that Mandandanji Ltd had lent Mandandanji Enterprises (the owner of the vehicle washing business called “Muddy Waters” and vehicle leasing business) $700,000 as start up capital and that $95,000, sourced from the Origin Energy ILUA, had been used to purchase equipment for the Muddy Waters. The Mailman parties also led evidence that the group of companies employed, mostly as causal labour, a substantial number of indigenous people, many being members of the group.

75    Ms Tomlinson annexed to her affidavit draft financial accounts for each of the three companies in the Mandandanji Ltd group. These had been collected by her in the short time since my directions of 12 March 2013 and had not been audited. However, they revealed that as at 31 December 2012, Mandandanji Ltd held cash assets of nearly $2.3 million in its trustee capacity. Those accounts recorded, as a current asset, a loan of $1.15 million due by Mandandanji Cultural Heritage Services to its parent company. That subsidiary had cash at bank of $480,000. Its accounts also recorded that about $1.29 million was due to it by various mining companies, including about $1.25 million by Santos.

76    As counsel for the Binge parties demonstrated in argument, the accounting records for Mandandanji Enterprises did not record any loan to it of $700,000 as a debt in its total liabilities of $32,454.29 as at 31 December 2012. Its management accounts recorded cash at bank at that date of just over $215,500 and plant, equipment and vehicles worth $245,000. Counsel pointed out that it was not clear from those records where the $700,000 loan referred to by Ms Tomlinson was or what had happened to it. However, he acknowledged that the accounts were incomplete and he did not suggest that anything presently turned on this other than that it supported the making of the orders of 1 March 2013.

77    What is significant for present purposes is the amount of money currently under the applicant’s nominal control and what is due to be paid to one or more of the corporate group members. Here, assets available to the charitable trust were not even used to benefit the cestui que trusts, being members of the native title claim group, to provide transport and accommodation for them to attend the meeting of 3 September 2011 in Toowoomba. That was despite the trustee having, I infer, a very large sum of cash at bank. Yet, during the argument of the s 66B applications, the Mailman applicant had asserted that the lack of funding from the representative body, Queensland South, at taxpayer expense, was a reason why the meeting was unfair to some of the constituency. The very large sums of money held by the charitable trustee are now not under any effective control because of the divisions in the applicant.

Was an undertaking as to damages necessary?

78    Mr Hardie noted in his written submissions for the hearing on 15 March 2013 that no undertaking as to damages had been given in support of the interlocutory injunctions that were made on 1 March 2013. He suggested this as a reason for setting the orders aside. However, he did not press this in oral argument. Nonetheless, the submission raised an important question.

79    The situation now before the Court presented a somewhat exceptional set of circumstances. The assets to which the members of the native title claim group may be entitled were in danger because the differing positions of its members made the applicant dysfunctional. In other words, no-one was in control of the applicant, the litigation it had commenced or the rights and entitlements that it had obtained, or caused to be obtained, by reason of its status derived from the Act. There was a serious issue as to who were the native title claim group that would be found, at a trial, entitled to a determination of native title and the rights and interests, including the benefit of agreements already made in respect of those rights and interests. Those circumstances had prompted the suggestion that I made on 28 February 2013 that the position of the persons ultimately entitled needed to be protected by injunctions of the kind that I made pending the final hearing of these proceedings. That suggestion has drawn support from the more precise evidence that is now available.

80    Proceedings under the Native Title Act have a vital role to play in our nation, as the preamble to the Act eloquently states. The ordinary members of native title claim groups will sometimes have little or no knowledge, or means of knowledge, of what a person does or persons do with the authority given to them as applicants for the purpose of bringing proceedings under the Act and negotiating ILUAs, agreements under s 31, cultural heritage agreements under the ACH Act and other contracts. There is no publicly searchable register of the content of such agreements and no legislation requiring them to be disclosed to the native title claim group members.

81    An undertaking as to damages is a very important, and ordinarily essential means of preventing injustice from being done by the Court when it makes an order, such as an injunction, at an interlocutory stage, before the rights of the parties have been finally determined. The Court has a discretion not to enforce such an undertaking, although ordinarily it will unless the conduct of the person seeking its enforcement would make it unjust to do so: Air Express Limited v Ansett Transport Industries (Operations) Proprietary Limited (1981) 146 CLR 249 at 311-312 per Gibbs J. The usual position that the provision of an undertaking as to damages is necessary to justify the grant of interlocutory relief, does not however mean that the Court has no jurisdiction or power to grant such relief in the absence of an undertaking. Rather, as Gibbs J noted, the purpose of the undertaking is to prevent injustice being done to others by the making of an order, as the practice of not requiring an undertaking by the Attorney-General shows: Air Express 146 CLR at 311-312. Ordinarily, as Lindley LJ said in Tucker v New Brunswick Trading Company of London (1890) 44 Ch D 249 at 253: “An undertaking is the price of an injunction, and if a man gets an injunction he must pay the price.” In the end, however, as North J said in Attorney-General v Albany Hotel Company [1896] 2 Ch 699 at 700 (and see Spry: Equitable Remedies (6th ed Lawbook Co 2001) at 483):

“If in the exercise of his discretion a judge should think fit to dispense with such an undertaking he could of course do so, and there are cases in which judges have done so; but this would only be under special circumstances.” (emphasis added)

82    The Court must be concerned with the potential consequences of any order it makes in deciding whether to grant interlocutory relief and on what terms. In particular, where there is a potential for serious damage to a person’s rights or interests or his, her or its property, it is necessary to consider whether the party seeking the interlocutory relief should provide an appropriate undertaking as to damages, lest the making of order be later shown not to have been justified: National Australia Bank Limited v Bond Brewing Holdings Limited (1990) 169 CLR 271 at 277 per Mason CJ, Brennan and Deane JJ.

83    At the trial in Air Express 146 CLR at 269, Aickin J, whose decision was affirmed, cited with approval what James, Cotton and Thesiger LJJ had said in Graham v Campbell (1878) 7 Ch D 490 at 494, namely:

“The undertaking as to damages which ought to be given on every interlocutory injunction is one to which (unless under special circumstances) effect ought to be given. If any damage has been occasioned by an interlocutory injunction, which on the hearing is found to have been wrongly asked for, justice requires that such damage should fall on the voluntary litigant who fails, not on the litigant who has been without just cause made so.” (emphasis added)

84    Where a party, such as the Attorney-General or a statutory regulator seeks equitable relief acting on behalf of the public and in the public interest, the Court will have regard to broader grounds in considering the application than would normally apply between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 at 560A-D per Lords Wilberforce, Hailsham of St Marylebone, Cross of Chelsea, Salmon and Sir Harry Gibbs; Attorney-General of the Australian Capital Territory; ex rel. Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329 at 340 per Black CJ, Gallop and Hill JJ.

85    The Court will not ordinarily require the Attorney-General to give an undertaking as to damages: Albany Hotel [1896] 2 Ch at 700-701 per North J; Kerr on Injunctions (6th ed Sweet & Maxwell Ltd 1927) at pp 28-29. The development of that practice may have been supported because in England the Crown could not be sued for damages and a citizen’s recourse was to proceed by petition of right. In Australia, s 64 of the Judiciary Act 1903 (Cth) established that, where the Commonwealth or a State was a party in proceedings in federal jurisdiction, the rights of the parties would be as nearly as possible the same, and judgment could be given and costs awarded on either side, as in proceedings between private parties. Nonetheless, the practice that the Attorney-General did not give an undertaking as to damages for interlocutory relief has persisted in Australian jurisdictions: see e.g. Meagher, Gummow and Lehane: Equity: Doctrines & Remedies (4th ed at 791-793 [21-140]. That practice does not, however, apply to all other statutory office holders who apply for interlocutory relief: Mansfield v DPP (WA) (2008) 226 CLR 486 at 501-502 [44]-[47] per Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ.

86    The principle to be deduced from the authorities is that the discretion to grant an interlocutory injunction or similar remedy is ordinarily to be exercised only on condition that an undertaking as to damages is offered. If it is not, the Court will proceed very cautiously, but may still consider that it should grant that relief without requiring an undertaking: see Optus Networks Pty Ltd v City of Boroondara (1996) 136 FLR 117 at 134-135 per Charles JA, Callaway JA agreeing. In Commercial Bank of Australia Ltd v Insurance Brokers Association of Australia (1977) 16 ALR 161 at 169, Bowen CJ discussed the Court’s power to grant an injunction under s 80 of the Trade Practices Act 1974 (Cth) as follows:

“Under s 80, a private person has statutory authority to bring the proceeding and this appears to absolve him from the necessity of obtaining the fiat of the Attorney-General. Whether this should assimilate his position to that of the Attorney-General suing to enforce the public interest or to a private individual suing by relation is not entirely clear. The approach of the Court I think should be that it will inquire from a private person seeking an interim injunction whether he is willing to give an undertaking as to damages. The Court should then take into account on the balance of convenience the presence or absence of such an undertaking as one of the factors to be considered in exercising its discretion.” (emphasis added)

87    I am of opinion that similar considerations are apposite in the present matter. That is because the exercise of the Court’s jurisdiction to make a determination of native title under the Act affects the public generally. A determination that native title exists or does not exist resolves issues that transcend the private interests of individuals and the active parties in the litigation, although it will also significantly affect those persons. The temporary status conferred on an applicant in such proceedings prior to their final determination, permits the applicant to exercise significant powers deriving from that status. The exercise of those powers is not clearly regulated by the Act or State or Territory legislation, such as the ACH Act. However, there is good reason to think that, ordinarily, equity would hold those persons liable to account to the native title claim group as a whole for what they do while exercising the powers and rights attaching to that temporary status.

88    Here, none of the native title claim group individual members could necessarily be expected to proffer an undertaking as to damages. Mr Hardie’s written submissions did not identify who should have done so. Indeed, there would have been difficulty confronting any individual seeking to obtain the interlocutory relief that I granted in the circumstances of the hearings on 28 February and 1 March 2013, since no-one could really claim to be authorised to represent the rights and interests of the native title claim group for the reasons that caused me to dismiss both s 66B applications. Yet, the recent evidence has revealed very significant assets and rights of the native title claim group are involved, but not subject to proper control. Those assets and rights should be protected by the Court for the benefit of those who may constitute that group in a final determination of these proceedings. The Court must have power to act to protect those persons’ rights, assets and interests that, although sourced to the original procedural status of the applicant, derived from the Act or that constitute the subject matter of the proceedings when those are not adequately protected and where no party or interested person will or can apply for orders to protect those rights, assets and interests.

Conclusion

89    None of the parties sought that an undertaking as to damages be given. None opposed the grant of some injunctive relief on 1 March 2013, although there were disputes as to the extent and form of the orders to be made. As I have said, it is difficult to consider who could have made the application had the Court not raised the necessity for orders to preserve the status quo. That was because the applicant was paralysed by its internal divisions and there were no persons outside that group who knew the details of dealings that members of the applicant had caused it to have, that were, or may have been, in need of protection by orders of the kind made on 1 March 2013.

90    In my opinion it was and remains essential to protect the rights of those who will ultimately be found to have native title rights in the claim area. Unless the Court took the initiative of imposing controls over what has now been shown to be the very substantial monetary entitlements and other rights that attach to the status of the applicant, as the representative party for those ultimately entitled to native title, there was a real risk that no proper person would be able to control and protect those moneys and rights for the persons entitled.

91    I was mindful, on 15 March 2013, in particular that the orders continued to provide for any person whose rights or interests have been, or may be, affected by those orders had the right to apply to the Court for relief. That express right in the orders mitigated substantively against any potential risk that the orders could have an immediate or irreversible adverse effect. Nothing in the evidence suggested that any such risk was present in the circumstances. Accordingly, I was satisfied on 15 March 2013 that, in all of the circumstances and for the reasons above, the interests of justice required that orders be made in the form that had been circulated to the parties without imposing a condition that an undertaking as to damages be given.

Associate:                        Dated: 25 March 2012

SCHEDULE

QUD 366 OF 2008

BETWEEN:

ALEXANDRA COMBARNGO, DAVID COMBARNGO, VIOLET JEAN COSTA, LEIGH HIMSTEDT, PHYLLIS BERYL HOPKINS, MIRANDA MAILMAN, SYLVIA JOYCE McCARTHY, LORRAINE FLORENCE TOMLINSON, SARAH TRINDALL AND LESLIE JAMES WERIBONE ON BEHALF OF THE MANDANDANJI PEOPLE

Applicant

AND: