FEDERAL COURT OF AUSTRALIA

Wilson v State of South Australia (No 2) [2016] FCA 812

ORDERS

THE COURT ORDERS THAT:

1.    On the interlocutory application filed on 18 March 2016, Caroline Wilson, Elizabeth Pool, Kenneth Wilson, Cindy Morrison, Neville Miller, Vernon Miller and Barry Dean Johncock Senior jointly replace Mr H Ernest Cox (deceased), Mr A Wilson (deceased), Mr L Royden Miller (deceased), Mr W Maurice Miller (deceased), Mr R John Ware (deceased) and Ms Neva Wilson (deceased) as the applicants in this proceeding.

2.    The heading of the claimant application be amended so as hereafter to reflect the names of the Replacement Applicants.

3.    The interlocutory applications filed by Ms Wilson on 8 March 2016, 10 May 2016 and 23 June 2016 be dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The underlying proceedings concern a claim for determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in respect of a large area of land on Eyre Peninsula in South Australia between (approximately) Elliston in the South and the northern end of Streaky Bay in the North. They were commenced in 1997 and 19 years later remain undetermined.

2    The proceedings were commenced by six applicants to whom, for convenience, I will refer as “the Original Applicants”. All of the Original Applicants are now deceased. The last survivor, Ms Wilson, died on Saturday, 25 June 2016.

3    South Australian Native Title Services Ltd (SANTS) commenced acting for the Original Applicants on 15 March 2010 and continued to do so until 23 December 2015, when Ms Wilson terminated its retainer. Subsequently, on 18 January 2016, Ms Wilson filed in the Court a notice of her termination of the retainer of SANTS.

4    This decision concerns, principally, three interlocutory applications. Each relates to action taken to have seven persons replace the Original Applicants as the applicant in the proceedings. The seven persons are Caroline Wilson, Elizabeth Pool, Kenneth Wilson, Cindy Morrison, Neville Miller, Vernon Miller and Barry Dean Johncock Senior. Each is a member of the Wirangu No 2 Native Title Claim Group, and each has consented, expressly or implicitly, to being a Replacement Applicant. For convenience I will refer to them as “the Replacement Applicants”.

5    The first interlocutory application in time is that filed by Ms Wilson on 8 March 2016. By this application, in which SANTS was the sole named respondent, Ms Wilson sought orders impugning the validity of a meeting held at Ceduna on 12 February 2016 at which a resolution that she be replaced as the applicant was passed as well orders, in effect, that she continues to be the applicant.

6    The second interlocutory application was filed by SANTS on 18 March 2016. By this application, made pursuant to s 66B of the NT Act, the Replacement Applicants sought an order that the current applicants (then Ms Wilson and the five deceased co-applicants) are no longer authorised by the native title holder group to proceed, and to deal, with the application for native title and an order that they replace the Original Applicants as the applicants in the proceedings.

7    The third application was filed by Ms Wilson on 10 May 2016. Although it indicated that the respondents to the application were “SANTS and ors”, no other respondents were named. By this application she sought to resist SANTS’ efforts to replace the Original Applicants, again to impugn the validity of the 12 February meeting, and orders relating to representation and mediation. I will return to these aspects later in these reasons.

8    The application of 18 March 2016 indicated on its face that SANTS made the application on behalf of the Replacement Applicants. This was confirmed by a Notice of Acting filed by SANTS the same day, which indicated that the Replacement Applicants had appointed it to represent them in the proceedings.

9    However, at the hearing on 21 April 2016, counsel announced an appearance for SANTS only, saying that it sought to appear as amicus curiae. Counsel said that SANTS had reflected on its position and felt, given that it had previously acted for the Original Applicants including Ms Wilson, that it was “uncomfortable” in now acting for those seeking her removal as the applicant. Unfortunately, SANTS had given notice to the Replacement Applicants only that morning that it would not be representing their interests on the hearing. Plainly, this did not give them a reasonable opportunity to consider alternative representation.

10    Five of the seven Replacement Applicants were present at the hearing. All but one said that, despite the late notice, they wished the hearing to proceed.

11    I was concerned that the two Replacement Applicants who were not present would have thought that their interests in the hearing were being represented by SANTS, and did not know that this was no longer the case. Accordingly, and in the interests of making use of the time which the Court had set aside, I directed that the hearing proceed but on the basis that, at the conclusion of the submissions, I would adjourn the matter so as to allow all of the Replacement Applicants the opportunity to present additional evidence and to make submissions. In addition, when adjourning the matter, I made orders requiring SANTS to provide relevant documents to each of the Replacement Applicants, together with notice that, if they wished to provide further evidence or make submissions, they should give notice to that effect by 20 May 2016, as well as consequential orders.

12    None of the Replacement Applicants gave notice of intention to present further evidence or submissions.

13    At the hearing on 21 April 2016, Ms Wilson did not have legal representation. She sought instead to be represented by her son, Paul Wilson, who is not lawyer. It seemed that Ms Wilson had done very little by way of obtaining legal representation since terminating the instruction of SANTS. Although the position was unsatisfactory, I granted Mr Wilson leave to represent his mother in the hearing, emphasising that it was for the purpose of that day’s hearing alone.

14    During the adjournment period, Ms Wilson filed some further documents. The first was entitled “Notice of Dispute”. By this document, Ms Wilson drew attention first to the fact that the schedule of parties to the Court’s orders of 21 April 2016 had included Caroline Wilson, one of the proposed Replacement Applicants, as an existing applicant. Plainly, this was a mistake and I directed that the schedule be corrected. As will be seen, Mr Wilson sought to attach a significance to the mistake which it did not warrant.

15    Secondly, the Notice of Dispute indicated that Ms Wilson disputed “the reasons that Caroline Wilson filed 11 documents all on 17 March 2016”. As no documents were filed on 17 March 2016, I take this “dispute” to relate to the 11 documents filed on 18 March 2016, these being the interlocutory application filed by SANTS seeking the replacement of the Original Applicants by the Replacement Applicants, the supporting affidavits and SANTS’ Notice of Acting. The basis of the dispute was not articulated and, on my understanding, this notice does not add to the matters relied upon by Ms Wilson, by her son Paul, at the hearing on 21 April 2016.

16    Thirdly, the Notice of Dispute indicated that Ms Wilson disputed “the legality of [the] Interlocutory Application signed 25 February 2016 signed and sent to the applicant, but not filed or registered in the Federal Court”. As the Notice itself indicates, the document impugned by Ms Wilson has not been filed in the Federal Court. There is accordingly no occasion for the Court to rule on its “legality”. Accordingly, there is no need for the Notice of Dispute to be addressed further.

17    In addition to the Notice of Dispute, Ms Wilson filed on 10 May 2016 an interlocutory application, on 27 May 2016 a Notice of Appointment of an Agent pursuant to s 84B(1) of the NT Act, and on 23 June 2016 an affidavit of Paul Wilson, a Notice to Produce Documents, and another interlocutory application. It is convenient to defer consideration of those documents to later in these reasons.

18    The interlocutory applications filed on 10 May and 23 June 2016 were made returnable on 27 June 2016. At that hearing, Mr Wilson again sought leave to appear on behalf of his mother. In addition, counsel for SANTS and Mr Wilson informed the Court that Ms Wilson had died during the previous weekend.

19    As was the case at the hearing on 21 April 2016, Mr Wilson did not provide a proper basis upon which the Court could grant him leave to represent his mother. He had not, for example, deposed to any attempts to obtain legal representation, or an inability to do so. Mr Wilson sought to rely on the Notice of Appointment of an Agent to which I referred earlier. By that Notice, Ms Wilson purported to appoint her son as her agent in these proceedings, and he indicated his acceptance of that appointment. The document indicates on its face that the appointment was made pursuant to s 84B(1) of the NT Act. This appointment did not assist Mr Wilson, for two reasons. First, s 84B(1) permits a party to a proceeding to appoint “a society, organisation, association or other body” to act as agent on behalf of the party in relation to the proceeding. Plainly enough, Mr Wilson, as an individual, does not satisfy the description of “a society, organisation, association or other body”. Secondly, and in any event, s 84B(1) is not concerned with rights of audience before this Court. That subject matter is addressed in s 85 of the NT Act.

20    Although I considered Mr Wilson’s application to be unsatisfactory, I decided, for reasons of expediency, to permit him to represent his mother while, at the same time, emphasising that that grant of leave was for the purposes of the hearing on 27 June 2016 only.

21    It is convenient to consider first the application pursuant to s 66B for the replacement of the Original Applicants.

The s 66B application

22    Section 66B of the NT Act provides (relevantly):

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.

…

23    As can be seen, the Court is empowered by s 66B to make an order that one or more persons replace a current applicant for native title if it is satisfied that one or more of the grounds set out in subs (1)(a) are established and if it is satisfied that those persons are authorised to make the application for native title and to deal with the matters arising in relation to it.

24    In relation to the five Original Applicants who have died, the Replacement Applicants relied upon subs (1)(a)(ii). It was common ground that these applicants are deceased and hence the circumstance specified in subs (1)(a)(ii) satisfied. In relation to Ms Wilson, the Replacement Applicants relied initially upon subs (1)(a)(iii), namely, that she is no longer authorised by the claim group to deal with the matters arising in relation to the application. At the hearing on 27 June 2016, counsel for SANTS indicated that, in view of the death of Ms Wilson in the intervening period, reliance was also placed on subs (1)(a)(ii) in her case.

25    A fundamental consideration for the Court is the authority of existing, or proposed, applicants to bring and maintain an application for native title on behalf of the relevant claim group. As French J observed in Daniel v State of Western Australia [2002] FCA 1147; (2002) 194 ALR 278 at [11]:

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.

See also Bolton of behalf the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43].

26    That importance is reflected in the identification in s 61 of the NT Act of those who may bring native title applications (subs (1)), in the provision that those members of the native title claim group who are not a named applicant are not themselves applicants (subs (2)), and in the authorisation granted by s 62A of the NT Act to applicants to deal with all matters arising under the NT Act in relation to the application for native title. It is for this reason that s 251B of the NT Act regulates the way in which a native title claim group is to authorise persons to bring claims for native title.

Evidence supporting the replacement of Ms Wilson

27    Although the death of Ms Wilson means that the Replacement Applicants can also rely on s 66B(1)(a)(ii) in her case, I consider it appropriate to address the parties’ contentions concerning whether she remained authorised to deal with matters arising in relation to the application for native title.

28    In support of their application that that the original Applicants no longer had this authority, the Replacement Applicants relied on evidence (which I accept) of the following matters:

(a)    a meeting of the Wirangu No 2 Native Title Claim Group was held on 12 February 2016 at Ceduna;

(b)    earlier meetings of the Wirangu No 2 Native Title Claim Group had been held at Port Lincoln on 20 May 2015 and at Ceduna on 29 September 2015. A meeting scheduled for 14 July 2015 had been postponed following the death of one of the Original Applicants. Despite the meetings of 20 May and 29 September 2015 having been well advertised, they were not well attended. The agenda for the meeting on 29 September included proposed resolutions for the replacement of the Original Applicants but, because of the low attendance, consideration of those resolutions was deferred;

(c)    notice of the meeting scheduled for 12 February 2016 was sent by post by SANTS on 18 December 2015 to all members of the Wirangu No 2 Native Title Claim Group for whom SANTS had contact details. Both the notice, which was in letter form, and the attached agenda made it plain that a principal item of business was the replacement of the sole surviving Original Applicant, Ms Wilson, together with consequential resolutions. SANTS’ letter of 18 December 2015 included the following:

This meeting in February 2016 has been expressly requested by the current remaining named Applicant, Neva Wilson. Neva has expressed her desire to be replaced as an Applicant to the claim. The Judge has also said that this process needs to be completed before the next directions hearing on 22 March 2016.

(d)    the attendees at the meeting on 12 February 2016 were persons listed on the SANTS contact register. Many of the attendees had also attended the previous meetings on 20 May and 29 September 2015;

(e)    at the meeting at Ceduna on 12 February 2016, those attending resolved that the current applicants were no longer authorised by the Wirangu No 2 Native Title Claim Group to proceed with the application and to deal with matters arising in relation to it; and that the seven Replacement Applicants should replace the current applicants on the following grounds:

(i)    Ms Wilson had indicated that she no longer wishes to be the named applicant;

(ii)    the other current named applicants had died;

(iii)    Ms Wilson was no longer authorised by the claim group.

It was not suggested that there was any formal defect in the terms of these resolutions;

(f)    the Wirangu No 2 Native Title Claim Group has no particular process for making a decision under its traditional laws and customs in relation to the replacement of applicants. In that circumstance, the meeting proceeded on the basis that each person present had a right to vote, that voting should be by a show of hands and that resolutions would be passed if agreed by majority of those persons present and voting. All resolutions were passed unanimously and without any of the attendees abstaining from the vote;

(g)    each of the seven Replacement Applicants was authorised by this means to be a Replacement Applicant;

(h)    all but two of the Replacement Applicants (Vernon Miller and Barry Johncock Senior) were present at the meeting.

29    Prima facie, these matters indicated that the authority of the Original Applicants had been withdrawn and the Replacement Applicants authorised in their stead.

30    I observe in passing that the 11th resolution passed on 12 February 2016 concerned the authority of SANTS. It was in the following terms:

[11]    The Wirangu People present at this meeting confirmed that the South Australian Native Title Services Ltd (SANTS) act as the legal representative for the Wirangu People in the prosecution of the Wirangu No. 2 Native Title determination application.

Grounds of opposition

31    Ms Wilson and her son Paul opposed her replacement as the applicant in the proceedings on a number of grounds:

(a)    Ms Wilson denies that she had indicated a wish to resign as the sole remaining applicant, let alone that she had resigned;

(b)    the meeting at Ceduna on 12 February 2016 was “fictitious” and “illegal”. This is said to be so because SANTS had not been authorised to call the meeting, following the termination of its retainer by Ms Wilson;

(c)    SANTS’ letter of 18 September 2015 had misrepresented the urgency of the position by stating that Mansfield J (the docket Judge) had said that the process of replacing Ms Wilson should be completed before the next directions hearing in this Court on 22 March 2016;

(d)    dissatisfaction with aspects of the meeting conducted on 29 September 2015.

Ms Wilson’s resignation

32    SANTS has said that it received a letter from Ms Wilson resigning as Original Applicant. However, it has been unable to locate that letter. Despite that, there is a considerable amount of circumstantial evidence indicating that Ms Wilson had communicated to SANTS her wish to resign as an applicant.

33    First, there is Ms Wilson’s affidavit of 18 November 2015 which contained a number of criticisms by her of the conduct of the meeting held at Ceduna on 29 September 2015. It is not necessary in these reasons to express any view at all about those criticisms, and I refrain from doing so. I refer to the affidavit only for the purpose of recording Ms Wilson’s apparent acceptance that she had provided a resignation as an Original Applicant and, in any event, that she no longer wished to continue as the applicant.

34    In the affidavit of 18 November 2015, Ms Wilson deposed:

[4]    I am now 82 years old and resigned prior to the meeting [of 29 September 2015] due to ill health. …

[5]    Myself, all of the others of the claim group and Mr Pagsanjan [lawyer for SANTS] were aware that the meeting was … specifically to choose another applicant, as Mr Pagsanjan arranged the meeting. And did not give myself or the claimant group sufficient [time] to prepare. …

…

[7]    I was caught by surprise when Mr Pagsanjan asked … if I would still remain an applicant and without thinking and feeling intimidated, I said yes to his question.

…

[9]    After the meeting while still in Ceduna, I met to discuss the outcome and repercussions of not being able to vote in a new applicant, and being tricked into remaining the applicant. …

[10]    It was decided that I, on behalf of the rest of the claimant group, express our disappointment via email to Michael, and request another meeting before the end of the year to choose a new applicant and to make sure that our request be followed through, and to send a letter to the Federal Court Judge explaining the outcome of the meeting along with our dissatisfaction. …

(Emphasis added)

35    An undated letter which Ms Wilson sent to Mr Pagsanjan at SANTS after 29 September 2015 (the October letter) included the following:

At the last meeting I told you that I also was resigning my position as an Applicant and I also sent you an Email stating that fact. This is also written on the said agenda Part 6.D. I was therefore taken by surprise when you mentioned that I was still regarded as an applicant and, not thinking, said yes to your question.

Regarding a new applicant was not forthcoming due to there being not enough families present; this was only your opinion. But [you] failed to bring to our attention according to the Act and written in the agenda, that it was not necessary for all of the families to be in attendance to choose an applicant, resolving in wasting our time. We could have elected an applicant that very day. …

…

We suggest strongly that you … arrange another meeting before the end of this year, so that we can elect an applicant with those who attended the last meeting …

(Emphasis added)

36    As can be seen, Ms Wilson acknowledged expressly that she had sent an email to Mr Pagsanjan resigning her position as an applicant. She thought that she had resigned and felt, whether rightly or wrongly, that at the meeting on 29 September 2015 she had been tricked into continuing. Ms Wilson sought a further meeting of the claim group for the purpose of electing replacement applicants.

37    In addition to these express acknowledgements, there is also Ms Wilson’s email to Mr Pagsanjan of 7 March 2016:

Hello Michael, could you please send me a copy of the email I sent you, where I wrote my resignation as an Applicant before I was reinstated at the last meeting we had in Ceduna.

Thank you, Neva

(Emphasis added)

38    Ms Wilson has not provided any evidence to the contrary of the inferences which arise naturally from the material just summarised. Accordingly, even though SANTS has not been able to produce Ms Wilson’s letter of resignation, I am satisfied that, at some time before 29 September 2015, Ms Wilson had told Mr Pagsanjan at SANTS that she was resigning as an applicant in the present proceedings and further, that she had sent an email to Mr Pagsanjan confirming that fact. Ms Wilson’s undated letter referred to above, and the contents of her affidavit of 18 November 2015, are inconsistent with Ms Wilson not having indicated a wish to resign. Ms Wilson’s email of 7 March 2016 contains, implicitly, an acknowledgment that she had written an email providing her resignation as an applicant.

39    In these circumstances, I am satisfied that SANTS’ letter of 18 December 2015, giving notice of the meeting on 12 February 2016, was not misleading and did not misrepresent Ms Wilson’s position. The statement in that letter that “Neva has expressed her desire to be replaced as an applicant to the claim” reflected accurately Ms Wilson’s then position.

40    It appears that Ms Wilson changed her mind subsequently but that change of mind does not alter retrospectively the accuracy of what SANTS conveyed to the Wirangu No 2 Claim group.

41    The assertion contained in Ms Wilson’s interlocutory application of 14 March 2016 that she was removed without her consent and knowledge, in contravention of s 66B of the NT Act cannot, in these circumstances, be upheld.

The validity of the 12 February meeting

42    Ms Wilson’s claim that the meeting of 12 February 2016 was held invalidly rested principally on her termination of the retainer of SANTS as the applicants’ solicitors. As already noted, Ms Wilson filed on 18 January 2016 a notice of her termination of the retainer of SANTS and indicated that she had not appointed another lawyer to represent the Wirangu No 2 applicants. However, Ms Wilson had, earlier, on 23 December 2015, sent a letter to Mr Pagsanjan at SANTS notifying him that the services of SANTS were no longer required:

As registered applicant of the Wirangu No 2 Native Title claim, and after meeting with the claim group, we have reached the agreement that your services as our representative lawyer to our claim, are no longer required.

Be advised that will notify you and SANTS … in the new year of the lawyer and organisation we wish to represent Wirangu No 2 claimants to process our claim.

43    On its face, this letter had the effect of terminating Ms Wilson’s instructions to SANTS on 23 December 2015 with notice that the identity of replacement legal representatives would be advised in the new year. However, Ms Wilson contended that the termination did not occur until 18 January 2016 when the notice of termination was filed in this Court. I do not consider that is the correct view of the situation. The notice filed in this Court did not itself effect the termination of SANTS instructions: it was instead notice to the Court and to the other parties of what had occurred by some antecedent act.

44    In either case, SANTS was acting within its retainer when on 18 December 2015 it gave notice of the meeting to be held on 12 February 2016. As previously noted, SANTS informed the claimant group members in that letter that the meeting in February 2016 had been requested expressly by Ms Wilson. She has not provided any evidence to contradict that assertion. In fact, the October letter indicates that she had wished the meeting to be called sooner.

45    An issue did arise between Ms Wilson, on the one hand, and SANTS, on the other, as to the location of the meeting on 12 February 2016. On 19 December 2015, Ms Wilson sent an email to Mr Pagsanjan at SANTS saying:

Dear Michael, as the registered Applicant for the Wirangu 2 Native Title Claim, I instruct yourself and SANTS that the Meeting that the Court has ordered for the Wirangu 2 Claim Group, to be held in Adelaide. I shall advise you of a Venue. Please advise us of your availability for the month of February 2016.

46    Mr Pagsanjan responded on Sunday, 20 December 2015 saying, relevantly:

Dear Neva

Thank you for email.

Unfortunately, notices have already been sent out late last week for a meeting in Ceduna. At the last meeting, it was agreed that this was the best place to hold a Wirangu community meeting.

The meeting dates are as you previously requested.

You should receive the notice in the mail shortly.

…

47    Further, on 21 December 2015, Ms Wilson telephoned Mr Bromley, a Senior Client Services Officer at SANTS, and said again that she wished the meeting to be held in Adelaide and not Ceduna. At that time, Mr Bromley was not aware that notice of the meeting had already been circulated. He became aware of that fact later that day and attempted to contact Ms Wilson by telephone to inform her of that fact. Accordingly, he sent an email to Ms Wilson on 21 December 2015 informing her of the true position.

48    There is no evidence that, once informed that the notices for the 12 February 2016 meeting had already been circulated, Ms Wilson gave any further instruction to SANTS to cancel the meeting or to cause it to be relocated to another venue.

49    Despite this, the submission seemed to be to the effect that, because the meeting on 12 February 2016 had gone ahead in contravention of an instruction by Ms Wilson, and at Ceduna, both it and the resolutions passed at it were invalid.

50    Related to this was a contention that SANTS had not been entitled to participate in the meeting on 12 February 2016. It is plain that it did so participate as four of its employees attending the meeting. These were Mr Thomas (SANTS’ Chief Executive Officer), Ms Lena (a lawyer), Mr Bromley, and Ms Milera, a legal intern. It was Mr Thomas who opened the meeting and made a PowerPoint presentation, including providing a summary of the history of the Wirangu No 2 claim.

51    SANTS acknowledged that it had not been present at the meeting as the retained legal representative of Ms Wilson.

52    SANTS is a representative body with the powers and functions conferred by Pt 11 of the NT Act. Ms Lena deposed that it acts as the native title service provider for greater South Australia and that its employees attended the meeting on 12 February 2016 in that capacity. As a representative body, SANTS has the functions conferred by s 203B of the NT Act. These include the “facilitation and assistance functions” referred to in s 203BB and the “dispute resolution functions” referred to in s 203BF. The facilitation and assistance functions include assisting persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to native title applications (s 203BB(1)(b)). On its face, the assistance which SANTS provided at the meeting on 12 February 2016 would seem to come within this description.

53    However, s 203BB(2) provides that a representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so. Mr Wilson submitted that the requests implicit in his mother’s instructions to SANTS before 23 January 2015 had, at least implicitly, been withdrawn by the termination of its retainer. I consider that submission to be correct. SANTS has not provided evidence of any other request pursuant to which it was acting on 12 February, although such a request may have been conveyed tacitly by those present at the meeting by having Mr Thomas open and conduct the initial parts of the meeting.

54    SANTS also referred to s 203BK(1) which provides:

A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

55    I doubt that s 203BK(1) is pertinent presently. It applies to matters which are within SANTS’ functions and does not operate to expand the scope of those functions.

56    The dispute resolution functions of a representative body are however pertinent. Section 203BF(1) provides:

Dispute resolution functions

(1)    The dispute resolution functions of a representative body are:

(a)    to assist in promoting agreement between its constituents about:

(i)    the making of native title applications; or

(ii)    the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access conferred under this Act or otherwise or about any other matter relating to native title or the operation of this Act; and

(b)    to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings.

As can be seen, representative bodies have a function of assisting in promoting agreement between constituents (who are defined in subs (2) to include persons on whose behalf the representative body may act or may hold native title in an area) about the making of native title applications or the conduct of proceedings about native title applications.

57    Section 203BF does not require that there be an existing dispute. Its focus is on the promotion of agreements, and may be exercised before any dispute has arisen. A representative body may discharge its dispute resolution function in a manner to prevent disputes arising.

58    It is apparent that SANTS had not adverted to its dispute resolution function when attending the meeting at Ceduna on 12 February 2016. However, to my mind, that is immaterial. The validity of SANTS’ conduct in question is to be determined objectively. SANTS continued to have the dispute resolution function, and could discharge it, even when it was not consciously adverting to the fact that it was doing so. Accordingly, if it be necessary to do so, I would conclude that SANTS’ participation in the meeting on 12 February 2016 was authorised by s 203BF of the NT Act and possibly also by s 203BB.

59    As I have said, there is no evidence of any instruction by Ms Wilson to SANTS to cancel the meeting on 12 February 2016 for which notice had been circulated on 18 December 2015. Ms Wilson may have thought that the termination of her retainer of SANTS had had that effect but, if so, she was, with respect to her, mistaken. When Ms Wilson gave the instructions to Mr Pagsanjan that the meeting be held in Adelaide and not Ceduna, he pointed out to her, in effect, that it was too late to change the arrangements. Ms Wilson did not then persist with the instructions. Further, as Ms Wilson’s instructions to SANTS were withdrawn on 23 December 2015, it was not thereafter open to it to take further action with respect to the calling of the meeting on 12 February 2016 and in particular, to take action by way of cancelling it or changing its venue.

60    There are further reasons why I consider that Ms Wilson’s challenge to the validity of the resolutions passed at the meeting on 12 February 2016 should not succeed. First, it was not possible for Ms Wilson to control when and where the native title claim group should meet. The members of the group were free to make their own decisions in that respect. Further, they were free to invite to their meetings those whom they chose and to decide who could speak at their meetings. Ms Wilson as the applicant in these proceedings could not control those matters. It was therefore open to the members of the wider native title claim group to hold the meeting at Ceduna on 12 February 2016 and to have representatives of SANTS participate in the meeting.

61    Secondly, even if contrary to my conclusions, SANTS did act outside its functions and therefore without statutory authority, this would not have the effect of invalidating what occurred at the meeting. It would mean only that SANTS, in the postulated circumstance, had acted unlawfully but its conduct in doing so could not affect the validity of resolutions otherwise properly passed by the native title group in a manner contemplated by s 251B of the NT Act. If that view be wrong, it would be necessary to consider the application of the principle discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 389-91 but, in the view I take of the matter, it is unnecessary to do so.

62    Mr Wilson also contended that the holding of the meeting on 12 February 2016 “violated” r 4.02 of the Federal Court Rules 2011 (Cth). That rule provides that “a party’s lawyer may do an act or thing that the party is required or permitted to do unless the context or subject matter indicates otherwise”. That rule relates to the conduct of proceedings in this Court and not to the holding, or conduct, of meetings by those represented in proceedings in this Court. In any event, it is not easy to see how SANTS’ conduct on 12 February 2016 “violated” this rule. By that time it was no longer the legal representative of the Original Applicants and, accordingly, did not answer the description of a “party’s lawyer”.

63    I add that Mr Wilson also submitted that r 4.04(2) of the Federal Court Rules had been “violated”. That rule imposed obligations on Ms Wilson following her termination of SANTS’ services and was not, on any reasonable view, applicable to the conduct of a meeting on 12 February 2016.

64    Mr Wilson drew attention to the fact that only 12 of the claimant group had attended the meeting in Ceduna on 12 February 2016. He noted that only 14 group members had attended the meeting on 29 September 2015 and that SANTS then had taken the view that it was inappropriate to proceed with the resolution for the replacement of Ms Wilson by reason of that low attendance.

65    Section 251B of the NT Act commences:

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:

…

66    As can be seen, s 251B identifies, for the purposes of the NT Act, the circumstances in which “all” the persons in a native title claim group authorise persons to make a native title determination application and to deal with matters arising in relation to it.

67    Section 251B is to be understood as informing the meaning of the term “a person or persons authorised by all the persons” (the native title claim group) in Item 1 of s 61(1) who may make an application for the determination of native title. In relation to s 61(1), O’Loughlin J said in De Rose v State of South Australia [2002] FCA 1342 at [928]:

... It is not necessary that every single applicant be personally named, although they do need to be identified by a set of appropriate criteria: … Notwithstanding the terms of the Table in subs 61(1) of the NTA – which requires authorisation by all persons – I do not think that the word “all” is be taken to include literally every single person. For example, infants and people with mental disabilities might be Nguraritja, but, because of their incapacity, they would be unable to give approval. Then again, the whereabouts of other persons might not be known. The word “all” should be taken to mean “all” those who are reasonably available and who are competent to express an opinion. …

68    In Coyne v State of Western Australia [2009] FCA 533, Siopis J referred to this passage in De Rose and continued:

[33]    … O’Loughlin J is not to be taken as saying that there can be no valid authorisation unless it is forthcoming from literally “all” of the persons he defines as comprising the claim group. The Act would be unworkable if this was to be the case. The Explanatory Memorandum in respect of the 1997 amendments which introduced s 251B makes it clear that this is not intended to be the case. At para 25.16 of the Explanatory Memorandum it is stated:

An application for a determination of native title that involves a claim for native title cannot be made unless it is made with the authority of the claim group. Section 251B explains what it means for an application to be authorised… (It does not necessarily require each member of such a group to have given authority.)

[34]    Further, Cooper J observed in Dingaal Tribe v State of Queensland [2003] FCA 999 at [8] (Dingaal Tribe) as follows:

It is not necessary, in order to prove that the decision-making processes required to be satisfied have been followed, to prove the making of individual decisions by all or most of the members of the claim group. Rather, it is sufficient to prove that the body making the decision was authorised to make decisions binding on the members of the claim group and that that body authorised the application under section 66B.

(Emphasis in the original)

69    That is the approach which I consider is appropriate in the present case. There remains however, the question of whether the attendees at the meeting on 12 February 2016 were sufficiently representative of the native title claim group to revoke the authority of the Original Applicants and to authorise the Replacement Applicants.

70    The evidence did not disclose the number of persons in the Wirangu No 2 Native Title Claim Group. Nor did it disclose the number of persons to whom SANTS sent the notice of the meeting on 12 February 2016 (counsel indicated from the Bar table that it was 120). In addition notice of the meeting was given by public notice, although the evidence did not indicate the precise means by which this was achieved.

71    There was, however, no suggestion that SANTS had given inadequate notice of the meeting, whether by way of letter or by public advertisement. It attached to its letter of 18 December 2015 a list of the current apical ancestors for the Wirangu No 2 claim. The published advertisements indicated that a list of the apical ancestors, a more detailed claim map, the specific wording of the proposed resolution and a more detailed agenda were available from SANTS.

72    The low attendance at the meeting on 12 February 2016 should be seen in context. The replacement of the Original Applicants was not an item on the agenda for the meeting at Port Lincoln on 20 May 2015. The letter of 7 May 2015 calling that meeting indicated that its main purpose was to “progress issues relevant to the native title claim by providing advice and seeking preliminary instructions”. Despite that, the meeting was not well attended as only 18 persons were present. The replacement of the Original Applicants was a specific item on the agenda for the meeting in Ceduna on 29 September 2015. An attachment to the notice of the meeting set out the proposed resolutions with respect to the replacement of the Original Applicants. Only 14 members of the Claim Group attended that meeting. SANTS was concerned that the attendance at the meeting on 29 September 2015 was low and accordingly recommended that consideration of the replacement of the Original Applicants be adjourned to a further meeting at which it was hoped more may attend. That hope was not realised at the meeting on 12 February 2016. These matters indicate that it is commonplace for meetings of the Wirangu No 2 Native Claim Group not to be well attended.

73    Ms Wilson did not adduce any evidence that there were persons who wished to attend the meeting who were unable to do so or that there were claim group members who were unaware of the meeting or its purpose.

74    In these circumstances, it is appropriate in my opinion to give effect to the approach of Gilmour J in Roe v State of Western Australia (No 2) [2011] FCA 102 at [14]:

Although a meeting to replace an applicant should be attended by persons fairly representative of the claim group, authorisation can nonetheless be validly given by a small percentage of the whole claim group provided that the process leading to that authorisation has been appropriately notified and conducted. …

75    Other authorities also support the view that, providing that the Court is satisfied that appropriate notice has been given of the meeting, and of the business proposed to be transacted, a resolution to replace existing applicants may be effective even though passed by a relatively small proportion of the overall claim group. See, for example, Dingaal Tribe per Cooper J at [32]; Anderson v State of Western Australia [2007] FCA 1733 per French J at [36]; and Coyne per Siopis J at [51].

76    For the reasons given earlier, I am satisfied that appropriate notice was given for the meeting on 12 February.

77    For these reasons, I reject Mr Wilson’s contention that the meeting held on 12 February 2016 was invalid and that the resolutions passed at it are of no effect.

A misrepresentation in the letter of 18 December 2015?

78    Ms Wilson referred to the statement in SANTS’ letter of 18 December 2015, quoted earlier in these reasons, that Mansfield J had said that the process of replacing Ms Wilson should be completed before the next directions hearing on 22 March 2016. She contended that this was a misrepresentation because Mansfield J had said no such thing.

79    Ms Wilson relied for this submission on a statement of Mansfield J when dismissing an application which she had brought in these proceedings seeking to restrain another group of applicants from filing an overlapping claim: Wilson v State of South Australia [2015] FCA 1328 delivered on 20 November 2015. In explaining that the conduct which Ms Wilson sought to injunct did not, of itself, affect any right of Ms Wilson, Mansfield J included the following statement:

[8]    Ms Wilson, as the surviving person constituting the applicant in this claim, has the conduct of the matter on behalf of the claim group. The claim has been registered by the Native Title Registrar under the Act. That means that as the applicant for the claim group Ms Wilson has, and continues to have, the right to negotiate as that is defined within the Act on behalf of the Wirangu No 2 Claim group.

80    It is evident that this submission of Ms Wilson is based on a misunderstanding. The statement of Mansfield J to which SANTS referred in its letter of 18 December was not that in the reasons published on 20 November 2015, but instead a statement made by His Honour at the callover of South Australian Native Title cases on 16 October 2015. On that occasion, after Mr Pagsanjan had told the Court that SANTS would be attempting to hold another meeting in February 2016 to authorise replacement applicants, Mansfield J said:

[T]he appropriate order is … to adjourn it simply to the next callover at 9.00 am on 22 March, but in anticipation that there will be by then an application under s 66B to substitute new applicants … and then you can start indicating where we will be moving forward.

81    In my opinion, the statement in the letter of 18 December 2015 did not misrepresent the position stated by Mansfield J.

Dissatisfaction with the meeting on 29 September 2015

82    Ms Wilson was critical in a number of respects of the conduct of the meeting held at Ceduna on 29 September 2015. Indeed, in parts of her affidavits Ms Wilson indicated her belief that the resolutions for her replacement as applicant should have been put at that meeting.

83    In my opinion, it is not necessary for the Court to address Ms Wilson’s criticisms of the meeting of 29 September 2015. They do not bear directly on the matters arising for this Court’s determination on the s 66B application.

Conclusion on s 66B(1)

84    For these reasons, I am satisfied that the threshold matters for which s 66B(1) provides are established. All of the Original Applicants are now deceased so that s 66B(1)(a)(ii) is satisfied. Further, had it been necessary to do so, I would have found that, by reason of the resolutions passed at the meeting at Ceduna on 12 February 2016, Ms Wilson ceased as from that date to be authorised by the claim group to deal with matters arising in relation to the application and that Replacement Applicants were so authorised.

85    I mention that Mr Wilson referred in the oral submissions to a number of authorities, albeit not providing the citations. These included Law Society of New South Wales v Ramalca Pty Ltd (1988) 12 NSWLR 34; Watson v Ebsworth & Ebsworth [2008] VSC 510; and Weribone on behalf of the Mandandanji People v State of Queensland [2011] FCA 1169. I have looked at those authorities but do no regard them as being of assistance in resolving the issues which arise on the present applications.

Discretionary consideration

86    It remains to considers the exercise of the discretion under s 66B(2).

87    An important consideration in that respect is that there are currently no live applicants.

88    Mr Wilson made an oral application that he be permitted to continue to represent his mother as one of the Original Applicants. An order as sought by Mr Wilson is undesirable for a number of reasons. Ms Wilson can no longer give him instructions in relation to the pursuit of the application and Mr Wilson himself has no authority from the native title claim group to be making decisions in relation the pursuit of the application.

89    It is highly desirable that there be live applicants who can deal with the matters arising in relation to the application. The Replacement Applicants have been authorised by the claim group to be those applicants. This consideration points powerfully in favour of the grant of the s 66B application.

90    Another pertinent matter is that Ms Wilson had not in the six month period between terminating the instructions of SANTS and her death, appointed any other legal representatives to act on behalf of the applicants in the proceedings. This has meant that the proceedings have effectively been at a standstill. That is an undesirable situation and should not continue. The delay to date by Ms Wilson an her son in obtaining legal representation does not inspire confidence that there will be any change in the near future.

91    I mention that, in her affidavit of 7 March 2016, Ms Wilson deposed that she had spoken by telephone to her niece Elizabeth Pool and to three other of the Replacement Applicants who, she said, had assured her that, despite the resolutions passed at the meeting on 12 February 2016, they still acknowledged her as the Original Applicant. The suggestion seemed to be that this undermined the application of the Replacement Applicants for the order pursuant to s 66B.

92    I do not consider that effect should be given to this submission. Rather, I consider it significant that each of the Replacement Applicants has made an affidavit in support their application and that all but two of them were present in Court on 21 April 2016 on the hearing of the application. Those present included Elizabeth Pool. None indicated at that time that he or she no longer joined in the application and none had sought to provide evidence or make submissions, despite having been given the opportunity to do so. In these circumstances, I do not consider that the generalised and unparticularised hearsay assertions of Ms Wilson on this topic should be given weight.

93    Mr Wilson also suggested that the matters in issue between he and his mother, on the one hand, and the Replacement Applicants, on the other, could be referred for mediation. I declined to adjourn the hearing to allow that to occur and decline now to order a mediation of these issues. Whilst the Court actively supports parties attempting to resolve their differences by conciliation, a mediation is not appropriate in respect of the applications presently before the Court in these proceedings. It is preferable that there be an early resolution of the question of whether the Replacement Applicants should become the applicants in the proceedings. Further, and in any event, there has already been more than adequate time for the parties to pursue, privately, a negotiated resolution, and they have not achieved one.

Conclusion on s 66B application

94    For the reasons given above, I uphold the application filed by SANTS on 18 March 2016 and will make orders accordingly.

95    For the same reasons, the interlocutory applications filed by Ms Wilson on 8 March and 10 May 2016 should be dismissed. In case it be thought that the matter has been overlooked, I note that that interlocutory application of 8 March 2016 sought orders in the nature of declaratory relief which would have been inappropriate in any event on an interlocutory application.

Other matters

96    At the hearing on 27 June 2016, Mr Wilson attached significance to the position of Caroline Wilson. The Notice of Dispute filed on 10 May 2016 asserted that Caroline Wilson had inappropriately been shown in the Schedule of Parties as the sixth applicant in the Wirangu No 2 claim. As noted earlier, this occurred as a result of an administrative mistake within the Court. At the hearing, Mr Wilson went further and asserted that Caroline Wilson had been registered in this Court and in the National Native Title register on 30 September 1998 as one of the Original Applicants.

97    A search of this Court’s file does not confirm that understanding of events in 1998 as asserted by Mr Wilson. The Original Application was filed with the National Native Title Tribunal on 28 August 1997. The first listing in this Court was on 15 December 1998. Caroline Wilson was not shown as an original applicant at that time or on any of the documents since. No question of the regularity of the proceedings arises on that account. I also observe that Mr Wilson did not produce to the Court any document recording Caroline Wilson as an Original Applicant other than referring to the mistake in the Schedule of Parties to the Court’s orders made on 21 April 2016.

98    It is accordingly unnecessary for the Court to take any action with respect to the Notice of Dispute filed on 10 May 2016 and with respect to the Notice to Produce dated 23 June 2016.

99    Finally, I refer to the interlocutory application filed on 23 June 2016. By that application, Ms Wilson sought the striking out of another application for determination of native title, namely, the Far West Sea claim made in Action SAD 71/2016, as well as consequential orders. An interlocutory application in the present proceedings is not the appropriate vehicle for the impugning of the claim made in SAD 71/2016. That application should be dismissed.

Summary

100    For the reasons given above, the Court makes the following orders:

(1)    On the interlocutory application filed on 18 March 2016, Caroline Wilson, Elizabeth Pool, Kenneth Wilson, Cindy Morrison, Neville Miller, Vernon Miller and Barry Dean Johncock Senior jointly replace Mr H Ernest Cox (deceased), Mr A Wilson (deceased), Mr L Royden Miller (deceased), Mr W Maurice Miller (deceased), Mr R John Ware (deceased) and Ms Neva Wilson (deceased) as the applicants in this proceedings.

(2)    The heading of the claimant application be amended to reflect the names of the Replacement Applicants.

(3)    The interlocutory applications filed by Ms Wilson on 8 March 2016, 10 May 2016 and 23 June 2016 be dismissed.

101    I will hear the parties as to costs.

Associate:

Dated:    15 July 2016