FEDERAL COURT OF AUSTRALIA

Rirratjingu Aboriginal Corporation v Northern Land Council

[2016] FCA 1017

ORDERS

THE COURT ORDERS THAT:

In relation to the Amended Originating Application (the Application) of the Applicants:

1.    The orders sought in paragraphs 1 to 5 and for interlocutory relief in Part A are refused.

2.    The orders sought in paragraphs A, B, C and 6 of Part B are refused.

3.    The first applicant pay to the first respondent and to the second respondent costs of the Application to and including 21 April 2015 and including the costs of the interlocutory application of the first respondent of 20 March 2015 and of the interlocutory application of the applicants of 15 April 2015.

4.    The first respondent and the second respondent have leave to apply for an order that the second to seventeenth applicants pay to them the costs referred to in order 3 in the event that they consider that the first applicant will not, or will not be able to, pay the costs so ordered against it.

5.    On the interlocutory application of the applicant, and under Order 6 of the Application, the applicants if so advised have leave to amend the Application to apply to review the 30 January 2015 Decision of the first respondent under the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the ADJR Act) and at common law, provided any such amended application does not assert any fact or any basis for that claim which is not consistent with the judgment of the Court in Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36 (the First Judgment).

In relation to the Amended Cross-Claim (Cross-Claim) of the third respondent, the orders are:

1.    The Cross-Claim is dismissed, save for preserving liberty to apply to file and serve a further amended Cross-Claim.

2.    On the Cross-Claim of the third respondent, and on the interlocutory application of the third respondent of 17 April 2015, the third respondent have leave to amend the Cross-Claim broadly in terms of the proposed Further Amended Notice of Cross-Claim annexed to that interlocutory application, that is to apply to review the 30 January 2015 Decision of the first respondent under the ADJR Act and at common law, provided that such amended cross-claim is otherwise properly drawn and accords with the First Judgment.

3.    The third respondent as cross-claimant pay to the first respondent and the second respondent (as respondents to the Cross-Claim) costs of the Cross-Claim to 21 April 2015 and of the interlocutory application of the first respondent of 20 March 2015.

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

REASONS FOR JUDGMENT

MANSFIELD J:

1    The background to the present judgment can be set out shortly. It is largely repeated from an earlier judgment in the same proceeding: Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36 (the First Judgment).

2    That decision addressed pleadings issues, and an application for summary dismissal of the proceeding. It led to procedural orders and a limiting of issues under which the proceeding might then have been resolved, and now to the further hearing on limited issues which is the subject of these reasons for judgment.

Background

3    The underlying dispute is about the distribution of mining royalties amongst members of the Yolngu clans known as the Rirratjingu, Gumatj and Galpu clans. The royalties are proceeds from mining activities on certain Aboriginal land on the Gove Peninsula in the Northern Territory. As I did in the First Judgment, I will simply refer to the people in the three clans by the clan name.

4    On 26 May 2011, an agreement (the Gove Agreement) was entered into between Swiss Aluminium Australia Pty Ltd and Gove Aluminium Ltd (RTA), the Arnhem Land Aboriginal Land Trust (the Land Trust), the Northern Land Council (NLC) and representatives of the Rirratjingu, Gumatj, and Galpu. The three clans are considered by the NLC to comprise the traditional Aboriginal owners of the land affected by the activities carried on by RTA under the Gove Agreement. The NLC is a Land Council established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA) and is the relevant Land Council for the Gove Peninsula in North East Arnhem Land.

5    The Gove Agreement concerns, amongst other matters, the grants of rights in relation to Sch 1 of the ALRA. It was made pursuant to s 19 of the ALRA. It allows for bauxite mining operations on Aboriginal land on the Gove Peninsula (the Gove operations). Under the Gove Agreement, amongst other things, the NLC is tasked (among other things) with receiving the mining royalties payable quarterly (the quarterly payments) and then with making payments of an amount equal to the quarterly payments received to, or for the benefit of, the traditional Aboriginal owners pursuant to its statutory duties under the ALRA.

6    The first applicant Rirratjingu Aboriginal Corporation (RAC) is a corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act). It has had, and continues to have, members who are Rirratjingu over the age of 18 years. It has received, from time to time, moneys to be paid for the benefit of the Rirratjingu under the Gove Agreement. The second to seventeenth applicants are Aboriginal people and are senior members of the Rirratjingu. The position of the Rirratjingu is not unanimous. The fifth respondent is an Aboriginal person and a senior member of the Rirratjingu and represents a number of the Rirratjingu who do not support the RAC or the second applicants. They are members of a separate Gamarra Aboriginal Corporation, also of Rirratjingu people.

7    The second respondent Gumatj Aboriginal Corporation (GAC) is also a corporation incorporated under the CATSI Act. It represents the Gumatj in this proceeding. It has received, from time to time monies to be paid for the benefit of traditional Aboriginal owners under the Gove Agreement. The fourth respondent is an Aboriginal senior member of the Gumatj and is said to represent the members of that clan. There is no present issue about that. He did not take a position on the current issues which is different from that of the GAC.

8    The third respondent Djalu Gurruwiwi is an Aboriginal person and senior member of the Galpu, and represents the Galpu in this proceeding. The Galpu are entitled to receive, from time to time, monies to be paid for the benefit of traditional Aboriginal owners under the Gove Agreement.

9    In 1969, Special Mineral Lease 11 and Special Purposes Leases 213, 214, 217, 249, 250, 251, 253 and 277 (the Gove Leases) were granted pursuant to the Mining (Gove Peninsula Nabalco Agreement) Act 1968 (NT) (the 1968 Act). The supporting Agreement was scheduled to the 1968 Act, with a right of renewal. It was sometimes called, in submissions, the first Gove Agreement. The Gove Leases authorised the mining of bauxite at the Gove alumina refinery. They were for a period of 42 years, with a right of renewal for a further period of 42 years. A large area of land called “Arnhem Land (Mainland)”, included the land covered by the Gove Leases, and later Special Purposes Lease 403 (SPL 403) which later became the subject of a deed of grant of an estate in fee simple. The grant deed was held in escrow by the NLC pursuant to ss 10(2) and 12(1)(b) of the ALRA because of the existing Gove Leases and SPL 403 in respect of the areas the subject of those leases.

10    In 1976, SPL 403 was granted pursuant to the 1968 Act (and the first Gove Agreement also scheduled to that Act) for the purpose of disposal of waste residue from the Gove operations. SPL 403 did not contain a right of renewal and expired on 29 May 2011. Following the expiry of SPL 403, the NLC delivered a deed of grant of an estate in fee simple in the land previously covered by SPL 403 to the Land Trust.

11    It is probably the disconformity in the periods of the Gove Leases (with their right of renewal) and SPL 403 (with no right of renewal) which provided the circumstances for the present dispute.

12    As SPL 403 neared its expiry date, the Gove Agreement and the Residue Disposal Area Lease dated 26 May 2011 (the RDA Lease), were made. The RDA Lease was made between RTA, the NLC, and the Land Trust. The RDA Lease covers an area which includes the land that had previously been covered by SPL 403. In practical terms the RDA Lease replaced SPL 403. As stated previously, the Gove Agreement was made between RTA, the NLC, the Land Trust, and representatives of the Rirratjingu, Gumatj, and Galpu. It may be understood that the expiry of SPL 403 and the need to secure access to the land it related to which prompted the Gove Agreement and the RDA Lease.

13    These proceedings involve, inter alia, allegations that the NLC has acted unlawfully or contrary to its obligations under the ALRA and the Gove Agreement in the way it has disbursed or proposes to disburse the quarterly payments payable to the NLC by RTA pursuant to the Gove Agreement in respect of the areas of the Gove Leases and SPL 403, and now the RDA Lease, to members of the Yolngu clans.

14    The primary dispute concerns the inter-clan allocations by the NLC purportedly pursuant to its obligations under the ALRA and the Gove Agreement in the disbursement or proposed disbursement of the quarterly payments under the Gove Agreement. For a number of years, the allocation of the quarterly payments between the Rirratjingu, the Gumatj and the Galpu appears to have occurred without serious disputation. It is really following the Gove Agreement, and the RDA Lease (replacing SPL 403) that its decisions or potential decisions have been the subject of disputation.

15    The present structure requires the NLC to pay to the Yolngu collectively (as traditional owners) within six months the quarterly payments received. That is an over-simplification, but it is enough to identify the quarterly payment received by the NLC on 31 July 2014 (the July 2014 payment) and proposed to be accounted for by 31 January 2015 which first prompted the present proceeding.

16    The issues following the exchange of pleadings were broadly identified as:

(1)    whether the quarterly payments received by the NLC under the Gove Agreement and the RDA Lease were held and to be distributed by it under a trust or a form of limited statutory trust, so that the respective payments by the NLC were to be made “according to law”, with the NLC having no role in determining the appropriate apportionment as between the Rirratjingu, Gumatj and the Galpu; and

(2)    if it was the role of the NLC to decide upon that apportionment, whether its decisions in that regard, in particular its proposed decision relating to the July 2014 payment, were susceptible of review under the Administrative Decisions (Judicial Review) Act 1976 (Cth) (the ADJR Act), and in any event on the claims as they were then expressed under the ADJR Act whether they should be summarily dismissed.

17    Ultimately, the Rirratjingu and the Galpu asserted both of those propositions. The consequence of the first proposition being answered in terms that the role of deciding the appropriate allocations according to law was that of the Court, the Rirratjingu position was that the appropriate apportionment should be:

Rirratjingu    49.755%

Gumatj        49.755%

Galpu        0.49%

The Galpu sought a larger percentage in their favour.

18    In the First Judgment, I decided that it was not the role of the Court to determine as a primary decision-maker the allocation of the quarterly payments. That, I found, is the role of the NLC under the ALRA firstly to determine who are the traditional owners of the land on and from which the mining activities of RTA are carried out (there is presently no dispute about that), and to decide upon the proper apportionment or allocation of those payments it had received and the person or persons to receive those payments, particularly under s 35 of the ALRA.

19    It was not seriously disputed that such a decision of the NLC could be the subject of a review application under the ADJR Act, including the extent to which that decision was part of the process prescribed by cl 6(1)(a) of the Gove Agreement. It is in almost the same terms as s 35(4) of the ALRA.

20    It was also not seriously contested that each of the three groups are groups of traditional owners entitled to be considered as eligible for such payments as the NLC under s 35(4) of the ALRA might determine. In that light, it was not contested that each of the three groups are, or may be, persons “aggrieved” so as to have standing under s 3(4) of the ADJR Act to challenge the validity of any decision made by the NLC under s 35(4) of the ALRA.

21    At the time of the hearing, the focus was upon the proposed decision concerning the allocation of the July 2014 payment received from RTA on 31 July 2014. The NLC had to that point made no decision about the allocation of that payment or the person or persons to receive it.

22    As to that, I decided that – to the point in time before the final decision of the NLC about the application of the July 2014 payment –there had been no reviewable decision by the NLC, and the process of decision-making by the NLC did not involve a procedural or substantive decision which was itself reviewable.

23    I did not then dismiss the claims based on an asserted trust or under the ADJR Act, even though at that point I had ruled that there was no decision of the NLC capable of review (as pleaded). I was conscious that the Rirratjingu evidence more broadly raised concerns about the NLC’s conduct or decisions:

(1)    during the negotiation of and leading up to the execution of the Gove Agreement in May 2011 (the first period);

(2)    during the period May 2011 to December 2011 when the NLC was proposing a structure and process for its anticipated decisions under s 35(4) of the ALRA (the second period); and

(3)    during the period December 2011 onwards when the NLC had made certain earlier allocation decisions, and had further addressed with the three groups a structure and process (the third period).

That is reflected in the First Judgment at [133]-[134] and [144].

24    In the course of considering the ADJR Act claim, I also rejected the proposition that the NLC by its asserted conduct had disqualified itself from making any further decision under s 35(4) of the ALRA.

25    The cross-claim of the Galpu confronted further procedural obstacles as well as the same issues referred to above. I provided the Galpu with the opportunity to address them.

26    I did, however, determine that a separate issue concerning a payment by RTA to the Rirratjingu and the Gumatj under the direction of the NLC under cl 6.1(b) of the Gove Agreement. I held the NLC direction was not itself a reviewable decision. That related to the “Upfront Payment” provided for in cl 52 of the Gove Agreement, and not to the distribution of quarterly payments received by the NLC. That is no longer a live issue.

27    The NLC on 30 January 2015 duly made a decision on the distribution of the funds received by the July 2014 payment under s 35(4) of the ALRA (the 30 January Decision). It later provided reasons for that decision dated 2 March 2015 (the NLC Reasons).

The Further Procedures

28    Orders were made on 13 February 2015 giving the Rirratjingu and the Galpu a limited time to indicate in writing any further orders they sought, with supporting submissions, and the NLC and the Gumatj (as respondents) were of course given the opportunity to reply.

29    The sequence of documents thereafter exposes the issues now to be addressed.

30    The Rirratjingu had filed a Further Amended Statement of Claim (FASC) on 4 February 2015. That was by leave, incorporating amendments considered in the First Judgment. The operative application was the Amended Originating Application of 10 October 2014 (AOA).

31    The Rirratjingu filed an outline of submissions indicating how they proposed that the matter should further proceed. They said the appropriate further steps depended on the NLC’s reason for the 30 January Decision, and which were not then available.

32    The Galpu response indicated they proposed to seek leave to amend the Cross-Claim, and to file evidence to address the delay in having made the Cross-Claim: see First Judgment at [142]-[143]. They sought further time to do so, until the reasons of the NLC for the 30 January 2015 Decision were available.

33    The fifth respondent also filed a submission seeking further time to respond following the NLC Reasons.

34    The NLC in its response understandably pointed out that those submissions were apparently diverting the focus of the claims from the previously expressed foundations to an anticipated “fresh” application to review the 30 January Decision. There was no suggestion to that point that the existing ADJR Act claim should be further considered in its terms. That is, there was no submission that the material filed by either the Rirratjingu or the Galpu would or could further pursue those claims based upon the asserted failure to make a decision. That contention had been rejected by the First Judgment at [120] and [128]-[129]. Nor was it suggested that the asserted reviewable conduct claim, as rejected by the First Judgment at [121] and [131] would be pursued under the AOA or the Cross-Claim. Understandably, the NLC said the AOA and the Cross-Claim should simply be dismissed.

35    The NLC further said, in any event, there is no power to amend an ADJR Act application to seek review of a decision made after the application. It also said that, even if there were a power to do so, in the exercise of its discretion the Court should not simply adjourn the application pending the receipt of the NLC Reasons.

36    That position was adopted by the Gumatj.

37    That issue came to a head by the NLC on 20 March 2015 applying for the Rirratjingu application, as amended and expressed in the AOA, and the Galpu Cross-Claim to be dismissed with costs, supported by the affidavit of Robert Gosford of that date.

38    The Gumatj on 24 March 2015 applied in effectively the same terms, supported by an affidavit of Aitran Nguyen of that date.

39    Those two interlocutory applications were listed to be heard.

40    The Rirratjingu by interlocutory application of 15 April 2015 applied for leave to amend the AOA and the FASC, and leave under s 11(1)(c) of the ADJR Act to apply to review the “quarterly apportionment and payment decisions” referred to in [31(a)] and [38] of the document called the proposed Second Further Amended Statement of Claim (SFASC) and the proposed Further Amended Originating Application (FAOA). The proposed amended documents were attached to that application. The Rirratjingu filed a further outline of submission in support of that interlocutory application, and in response to the issue of costs. They also relied on an affidavit of Sophia Cleveland of 16 April 2015, exhibiting certain further documents, including the NLC Reasons. The NLC responded to that application.

41    Finally, the Galpu on 17 April 2105 also applied for leave to amend their Cross-Claim. That application was not supported by an affidavit, but the terms of the proposed Further Amended Notice of Cross-Claim (Further Cross-Claim) were attached.

42    The four interlocutory applications were heard together.

The Proposed Amendments

43    The Rirratjingu proposed amendments are extensive.

44    There is no longer a claim that the Court should be the primary decision-maker in determining the inter-clan allocation of the quarterly payments, although a “trust claim” is referred to. The Rirratjingu want leave to have the relevant paragraphs of the AOA (and corresponding parts of the FASC) struck out.

45    The FAOA based upon the allegations in the SFASC seeks:

(1)    a declaration that each quarterly apportionment and payment decision of the NLC (NLC allocation decisions) up to and including the 30 January Decision was made in breach of the duties of the NLC to the Rirratjingu, and was not authorised by ss 35(4) and (8) of the ALRA, and so is void and of no effect;

(2)    a declaration that each payment pursuant to the NLC allocation decisions was itself not authorised by ss 35(4) and (8) of the ALRA;

(3)    an order setting aside each NLC allocation decision;

(4)    damages, by reference to [34] of the SFASC; including to the extent of any underpayments that they be paid out of future payments or from the NLC’s own resources; and

(5)    an order that future NLC allocation decisions should accord with the anticipated reasons for judgment.

46    Under the heading of claims under the ADJR Act, the FAOA seeks to delete all the existing claims, and to substitute an order for review of each of the NLC allocation decisions made by the NLC prior to 30 January 2015.

47    The SFASC, apart from maintaining the background factual allegations broadly as previously made, and reciting relevant terms of the Gove Agreement, acknowledges the receipt of and payment by the NLC of the quarterly payments received and that the NLC has to date apportioned the payments according to the geographical proportions of Rirratjingu, Gumatj and Galpu land within the area of the Gove Agreement.

48    The new allegations of substance are that the NLC, when making the NLC allocation decisions, was acting as or equivalent to a trustee (contrary to the findings in the First Judgment) and was under a duty to consider relevant matters, to exclude consideration of irrelevant mattes and to act fairly. The particulars of the breach of that duty are new. They are extensive. They do, however, find a foundation in the broader allegations made in the FASC and noted at [36] and [133] of the First Judgment.

49    The new assertions identify a number of considerations relevant to the apportionment (beyond the geographical areas) relevant to the NLC allocation decisions. Those matters, or some of them, are said to show that the NLC did not act fairly as between the Rirratjingu and the Gumatj. There are also additional particulars of the circumstances in which the Rirratjingu say they came to agree to the Gove Agreement, including asserted representations by officers of the NLC, built into or under the genus of breach of the duty of fairness.

50    There is an alternative ADJR Act claim, refined from the previous FASC, in part based on the allegation that the NLC was the trustee of the monies received and then constructively failed to fulfil its duties under s 35(4) of the ALRA, but again with the new particulars of breach of duty referred to above and by making unreasonable decisions.

51    The Galpu have also provided a proposed amended Cross-Claim. They abandon any complaint about the Upfront Payment.

52    They abandon the previous basis for the ADJR Act claim, and substitute a focus on the 30 January Decision as to who were the traditional owners, and to apportion to the Galpu 0.49% of the moneys to be paid. The grounds for review are the failure to accord procedural fairness, an abuse of power, the exercise of a discretionary power without regard to the merits, and taking into account irrelevant considerations. In essence, those labels are said to be based on the failure to consult with any Galpu representatives.

53    The cross-claim for breach of the Gove Agreement is maintained but its factual foundations are quite different: the failure to consult before making a decision under s 35(4) of the ALRA; the failure to pay monies to a particular Aboriginal Corporation as directed by “The Galpu”, and the failure to pay one third of the Gove royalty payments to the Galpu.

54    In relation to the ALRA claim, an order is sought under s 11(c) of the ADJR Act for an extension of time to file the Cross-Claim.

Consideration

55    As a starting point, in my view, it is correct to say that both the Rirratjingu and Galpu interlocutory applications do not seek to maintain their previous ADJR Act application on the basis previously expressed (more clearly so in the case of the Galpu) by reference to additional but already filed material which had not previously been the focus of submissions.

56    What is being attempted by the Galpu is the introduction by amendment of an ADJR Act claim in respect of the 30 January Decision. The Rirratjingu are also seeking to widen their present causes of action, to cover previous NLC allocation decisions on the quarterly payment.

57    As the NLC submitted, to that extent, the substitution of the new pleadings does not give effect to the Judgment, but simply uses the existing application (which but for the amendment) would, I think, now be dismissed as the vehicle for a separate and different claim or claims.

58    In respect of the existing claims, which have been addressed on refined and confined issues as noted below, on those issues the consequence is in my view that the claim as expressed should be dismissed. The principal of the finality of litigation as an important element of the public interest would dictate that only in the rarest of cases should an amendment to the pleading be allowed in such circumstances: Multiplex Constructions v Irving (No 2) [2005] NSWCA 1 at [24].

59    Consequently, if it were the intention or effect of the proposed amendment to enliven in some way the causes of action previously pleaded, and which have been resolved by the issues addressed in the First Judgment, in my view the leave sought should be refused: Fidelity Shipping Co v V/O Exportchleb [1966] 1 QB 630 at 642.

60    It would follow, too, that to the extent that either the Rirratjingu or Galpu claims as proposed to be amended are based on matters already decided in the First Judgment but by the proposed fresh allegations, they should not be permitted. Orders should be made dealing with the existing claims on the basis of the First Judgment, and if so advised the Rirratjingu or the Galpu may appeal from those orders.

61    I also consider that, at least in part, the proposed Rirratjingu amendments, even though somewhat different from the earlier claims as expressed, do partly assert a state of affairs – name a trustee relationship between the NLC and the Rirratjingu in respect of the receipt of the quarterly payments – which is not consistent with the conclusions reached in the First Judgment.

62    As noted, it is to be alleged (if the proposed amendments are allowed) that the NLC was, upon receipt of the quarterly payments, in the relationship of a trustee with the traditional owners in the process of making the NLC allocation decisions (what are called in the proposed amendments the quarterly apportionment and payment decisions), which then inform the nature of the obligation of the NLC to the Rirratjingu which is, in turn, said to have been breached. The First Judgment decided that s 35(4) merely set the circumstances in which the NLC became statutorily obliged to make the NLC allocation decisions, and that at that point no trustee relationship existed (although the failure to make a decision at all may be the subject of an application by a traditional owner to oblige its making).

63    It is only at the point of some or all of the monies being apportioned and a particular payee or payees selected, assuming they are eligible payees, that in my view a trustee relationship arises in respect of the administration and application of that particular sum for that particular payee or payer. That arises, at least in part from s 35(8) of the ALRA.

64    That ruling is, I apprehend, consistent with the decisions in Kuligowski v Metrobus (2004) 220 CLR 363 at [21], [40] and [54], and Ramsay v Pilgrim (1968) 118 CLR 271 at 276 per Barwick CJ. As I have said, there will be orders determining in a formal way the effect of the First Judgment so that the Rirratjingu, if so advised, may have that decision reviewed on appeal.

65    However, I have not taken the step of regarding the whole of the Rirratjingu existing allegations as proposed as necessarily resolved by the First Judgment. In the circumstances outlined, two specific issues were addressed and determined in the First Judgment. Those issues were formalised by the Orders made on 4 February 2015. Those orders reflect what was agreed between the parties at the time of the initial hearing leading to the First Judgment. They are relevantly in the following terms (apart from the FASC as ultimately filed on 4 February 2015), specifying that the issues to be addressed were:

(a)    arising from paragraphs 25 to 33 (inclusive) of the FASC to the extent that they do not require consideration of the appropriate proportions in which the money received by the Rirratjingu should be distributed; and

(b)    as to whether the Rirratjingu FASC and the Galpu Amended Notice of Cross-Claim disclose claims which as a matter of law are competent under ss 5-7 of the ADJR Act.

Those issues were heard separately, and before other issues in the proceedings on 3, 4 and 5 December 2014. It was specifically noted in the orders to proceed that:

(i)    the order for the trial of issues does not extend to determination of findings of disputed facts on allegations at [42], [43] and [45]-[49] of the FASC;

(ii)    the order for the trial of issues does not extend to determination of findings of disputed fact on the allegations at [6](i)-(viii) and [9](ii)-(iii), (v), (vii)-(viii), (xi) of the Galpu cross-claim as amended; and

(iii)    the order to determine the “competency” of the issues includes determining, subject to (i) and (ii), whether the facts alleged in the FASC, and the cross-claim as amended give rise to a reviewable failure on the part of the NLC to decide, or a reviewable decision by the NLC, as alleged on those pleadings.

66    As the First Judgment records, there were practical rather than strategic reasons for proceeding in that manner. The underlying criticism by the Rirratjingu (as to the merits of which I have no view) of the process by which the NLC made any of the NLC allocation decisions was not resolved.

67    Consequently, in effect, the Rirratjingu now seek to substitute different allegations of fact to enliven a different basis for their claims. That is largely based on the assertion that the Rirratjingu came to agree to the Gove Agreement. It is said by them to reflect the issues of fact which were previously alleged and remain unresolved. In a general way, I accept that they are consistent with the factual assertions now made in the proposed amendments. I do not accept the NLC’s characterisation of the proposed amendments as seeking to “run a case factually inconsistent with that which went to judgment” as a decisive one. Certain factual disputes were not resolved.

68    In the case of the Rirratjingu, they foreshadow a separate application under the ADJR to review the 30 January Decision. It is not therefore necessary to address their entitlement to make such an application, or to consider whether any amendment of their existing claims should be permitted to accommodate such a challenge. They do not seek to do so.

69    The Rirratjingu accept that the First Judgment means that the claims in Part A of the AOA should be refused. They also accept that the claims in Part B of the AOA should also be refused.

70    The remedy they accede to, as a consequence, is the striking out of the relevant paragraphs of the AOA and the FASC. They propose an order to that effect, by striking out paras 31-55 of the FASC, leaving only what is in effect paras 1-30. They can properly be described as the background allegations as noted above: the parties (paras 1-6); the “Original Gove Agreement” (paras 7-13); the grants of land under the ALRA including the fee simple grant of the area previously subject to SPL 403 (paras 14-17); the acceptance of the three clan areas as traditional owners of the relevant country (paras 18-22); the Gove Agreement including the quarterly payments; the RDA lease and the recital of obligations under s 35(4) of the ALRA (paras 23-30). To the same extent, they propose striking out all of the AOA (other than the general introductory claim in relation to their “entitlements” under the Gove Agreement).

71    Their written submission next has the heading “The continuation of the remaining claims and claims related to them”. In fact, as is evident from their proposed orders, there are no claims to continue, save for the assertion of their entitlements under the Gove Agreement.

72    Reference is made to the First Judgment at [108]-[110] and at [129]. The First Judgment at [108]-[110] describe the role of the NLC under the ALRA, including s 35(4). They simply note that, in appropriate circumstances, the decisions of the NLC may be reviewable. That is what the Rirratjingu proposed separate proceedings concerning the 30 January Decision contemplates. The First Reasons at [108-]110] provide no basis for the Rirratjingu proposed claims. Nor, in my view, does [129]: it notes the factual dispute about the NLC’s processes prior to the 30 January Decision, noted briefly also at [21], [22] and [36] of the First Judgment. To some degree, that dispute is one which is (I was told in the course of submissions) also the subject of separate proceedings in the Supreme Court of the Northern Territory.

73    The “window” through which the Rirratjingu proposed amendments are then sought to be introduced is whether the past NLC allocation decisions to apportion and pay each of the quarterly payments were made in accordance with law.

74    Depending on the basis for that being consistent with the First Judgment, the question whether leave to amend should be given is really a discretionary decision. There is really no especial difference between amending the existing proceeding by adding new claims, or by starting new proceedings. It is not a case of amending an ADJR Act application to challenge the validity of the same decision.

75    The issues raised are important. The Gove Agreement has many years to run. For whatever reason, the Rirratjingu to date have accepted the adoption by the NLC of the allocation as between the three clans based on the respective geographic proportions of the land in question by the NLC allocation decisions until the 30 January Decision. That is to be challenged in any event.

76    The basis for their concerns to support their proposed amendments was identified in the evidentiary and pleaded material (in broad terms) in the existing proceeding, but those factual issues were not explored for particular and understandable reasons: see the First Judgment at [35], [36], [41], [42], [48]-[50] and [129]. Those factual matters were not abandoned.

77    As the NLC submissions refer to the principle of finality of litigation, it is important to note that, in my view, the Rirratjingu did not elect to proceed on the basis of the two issues specified that their general factual allegations were not to be maintained. The “election” made was a practical one, given the time exigencies. So this is not a case where it can be said that the Rirratjingu should not now be allowed to ventilate matters which they had previously chosen not to pursue.

78    I have also considered whether the proposed claims are within the general areas of factual and legal dispute covered by the earlier filed material. I am satisfied that they are not entirely fresh. In the course of contentions on this hearing I was referred to the earlier affidavit material which sets out some basis for the allegations now proposed to be made, and which – if the earlier hearing had not been so time-constrained and the issues so confined – would have been relied upon. It is not necessary to refer to that in detail.

79    I do not consider that it is appropriate to comment upon the prospects of the Rirratjingu succeeding on their proposed claims. That may depend on disputed factual matters. Where there are no prescribed criteria to be considered by the NLC in making the NLC allocation decisions, it may be difficult to make out a judicial review entitlement based upon the asserted failure to consider relevant considerations or upon the alleged taking into account of irrelevant considerations. The conduct of the Rirratjingu in relation to the past decisions may inform the reasonableness of the NLC’s decision-making.

80    However, in my view, the proposed allegations in [32.1] of a trustee or quasi-trustee relationship is not consistent with the Reasons. I would not allow it. I do not consider that the decision of Re Mullighan [1998] 1 NZLR 481 is a basis for the refinement which the Rirratjingu advanced in submissions. It addressed the nature of the duty of the trustee of a deceased estate to act impartially as between the income and the capital beneficiaries of the estate. In the section “Breach of Duty” there is no allegation specifically of the way in which the asserted “trust” was breached. The allegations to support the ADJR Act claim as proposed are otherwise within the available grounds.

81    Subject to that particular matter, I am of the view that the Rirratjingu have demonstrated that there is sufficient material to demonstrate at least an arguable case to contend that the process of the NLC in making the NLC allocations in the past, since the Gove Agreement might be flawed and might give rise to a claim against the NLC either at common law or under the ADJR Act. Of course, that is not a decision on any of those disputed matters.

82    However, I do not think it is appropriate to categorise the Rirratjingu amendments as the continuance of the existing proceeding in the way it is contended. That is demonstrated by the fact that the Rirratjingu accept that, as a result of the First Judgment, the claims presently expressed in the AOA should be struck out. It is an attempt to extend the contentions made about the anticipated 30 January Decision of the NLC to the earlier NLC allocation decisions.

83    After careful consideration, I am not prepared to give the leave sought by the Rirratjingu to do so, notwithstanding the matters I have referred to in exercising the discretion available.

84    I have reached that view, on balance, firstly because I am unable to be satisfied about the consequences of doing so to the financial affects upon the Gumatj or, indeed, on the NLC. The quarterly payments are substantial. The Rirratjingu do not address how a significant retrospective adjustment of the past NLC allocation decisions could or would affect the Gumatj or the NLC, save for suggesting that the retrospective adjustment could be effected prospectively by significantly reducing the Gumatj proper share of the future NLC allocation decisions until the (presumably) correct balance was restored. There is no material to assess the impact of such a process upon the Gumatj. Alternatively, they say that adjusted entitlement could be paid from the beneficially held resources of the NLC, but again without exploring whether that is or might be possible, and if so at what expense to other Aboriginal communities in the area for which the NLC is responsible. Secondly, I do not have any persuasive evidence of why the concern presently expressed was only raised at this stage of the process of the administration of the quarterly payments. The material refers to an apparently carefully drawn briefing paper of the NLC of 2 December 2011 addressing how it might go about making the then prospective NLC allocation decisions, and the RAC responded pointing out concerns. Reference has been made in the SFASC to that exchange of communications, as well as to the conduct of persons attributed to the NLC in the course of reaching the Gove Agreement. There is no real explanation of why, prior to the presently proposed amendments, those matters were not raised. It is not an explanation that the NLC Reasons are the first occasion when the basis for the 30 January Decision (consistent with the earlier NLC allocation decisions) was expressed. There is no suggestion that, in respect of those earlier NLC allocation decisions, the Rirratjingu did not understand their basis, or could not have sought from the NLC reasons for its earlier decisions, or that they did not have available to them the material now put forward about how the Gove Agreement was acceded to by them.

85    In short, both on the balance of convenience, and because it appears to me that the Rirratjingu (if so deposed) could readily have made the now proposed claims much earlier and, it is reasonable to suspect in the absence of contradictory material; simply decided at the earlier times not to make the complaints now made.

86    I think that the significant dissident group now represented by the fifth respondent might also inform that possible state of affairs. At this point I have taken their dissent into consideration only to the extent of having regard to their dissent as indicating that, at some stage, and by some means, the Rirratjingu will have to address that issue. I note, however (in the light of the First Judgment) that there is no particular obligation on the NLC to determine that any NLC allocation decision to be made must be in favour of RAC or of any one or more of the second to seventeenth applicants.

87    Rather than simply declining to make the orders sought on that interlocutory application, I will refuse to make orders in the terms sought, but I will give the Rirratjingu leave to apply to amend that interlocutory application to apply, in such terms as they may be advised, the 30 January Decision of the NLC. That is to guard against the possibility that such an application, although foreshadowed, has not been commenced in anticipation of this judgment granting them the orders sought.

88    If such an application were to be made, by leave, (and encompassed within Order 6 sought in the AOA), I indicate that – to the extent necessary it could encompass an application for any necessary extension of time to have done so. I also indicate that I have not accepted, for the reasons already given that the resolution of the claims made in the AOA and as refined for decision by the First Judgment do not give rise to any issue estoppel on the wider factual issues which might be raised, and in my view do not provide a basis for the Court to take the view that the Rirratjingu have elected by the refinement of the issues determined by the First Judgment not to pursue such allegations so that they should not now be entitled to maintain them (but I would not permit the allegations of a trustee or quasi-trustee relationship as it presently appears at [32.1] of the SASC. On the Galpu interlocutory application, I will make an order in terms of that application with certain qualifications. It simply uses the existing cross-claim as the vehicle to challenge the 30 January Decision of the NLC. That order is to take effect from the date of the interlocutory application. The qualifications relate to the claim in subpara (x) of what appears to be an omitted para 9, or alternatively an incorrectly numbered (1) as a particular of para 9. Firstly, the drafting needs to be corrected. Secondly, I would not permit a claim as pleaded directed to a specific percentage of the quarterly payments, as the First Judgment has found that that is a function of the NLC under s 35(4) of the ALRA and is not a matter for the Court. I would allow subpara (xi) to stand, as it is consistent with the form of relief which might be granted if the claim were generally to succeed, and the matter remitted to the NLC for further consideration. For the same reasons, the declaratory orders sought will also have to be refined, having regard to the findings in the First Judgment about the nature and extent of the NLC discretion under s 35(4), including the discretion as to the person or persons or entities to whom the “Galpu share” of the quarterly payments are to be made, assuming the NLC decides that it should provide some of the relevant quarterly payment to the Galpu.

89    Those rulings are not intended to preclude the NLC, or the Gumatj from responding to any such further claim (within the leave granted) by either the Rirratjingu or the Galpu, except to the extent that the First Judgment and the orders made as a result have effect, or as stated in this judgment. There is not any anticipation of the terms of any revised claims such that these reasons are any anticipatory approval of their possible terms.

The Costs to Date

90    In my view, there should be an order that the Rirratjingu and the Galpu should pay the costs of their respective applications to date.

91    In the case of the Galpu, the matter is quite straightforward. Their Cross-Claim as first expressed has not succeeded, and in essence they are seeking to substitute principally an alternative Cross-Claim based on a different decision. They have not produced evidence which might have enabled their first Cross-Claim to have been “validated” by an extension of time order.

92    In the case of the Rirratjingu, although a little more complicated, the position is that on each of the issues addressed they have not succeeded and the primary claims as then expressed (the trust claim and the ADJR Act claims based on the failure to make a decision and the making of a decision which did not have the necessary quality of finality) have been or are to be dismissed. It is not sought to proceed with them.

93    Accordingly, I order that on the application of the Rirratjingu, the Rirratjingu pay to the NLC and to the Gumatj the costs of the proceeding to the date of the proceeding to date, save for the interlocutory application of 15 April 2105 which I separately address. I order that the Galpu pay to the NLC and to the Gumatj the costs of the Cross-Claim to date, save for the Galpu interlocutory application of 17 April 2015, which I have also separately addressed. So that it is clear, as the principal proponent of the Rirratjingu claim, the costs order will be against the RAC. The NLC and the Gumatj will be given leave to apply for an order that the costs liability of the RAC be extended to a liability of the second to seventeenth applicants, as the personal proponents of those claims in the event that the RAC does not satisfy that costs liability.

94    I am not persuaded that the costs should be on an indemnity basis.

95    In the case of the Galpu, the costs order will be against Djalu Gurruwiwi as the proponent of the Galpu interests.

96    Given the sensibly confined role of the other individuals, I make no order for costs in relation to them.

Orders

97    In view of the foregoing, the orders to be made will preserve the status of the proceeding including the AOA and of the Cross Claim only to the extent of preserving the liberty to apply. That will enable appropriate orders to be made to permit the interlocutory applications of the Rirratjingu and of the Galpu of to the extent of enabling them to pursue claims only in relation to the 30 January Decision.

98    On the application of the Rirratjingu by the AOA, in effect as it stood at 4 February 2015, there will be orders that:

(1)    The orders sought in paragraphs 1 to 5 and for interlocutory relief in Part A are refused.

(2)    The orders sought in paragraphs A, B, C and 6 of Part B are refused.

(3)    The first applicant pay to the first respondent and to the second respondent costs of the application to and including 21 April 2015 and including the costs of the interlocutory application of the first respondent of 20 March 2015 and of the interlocutory application of the applicants of 15 April 2015.

(4)    The first respondent and the second respondent have leave to apply for an order that the second applicant pay to them the costs referred to in order 3, in the event that they consider that the first applicant will not, or will not be able to, pay the costs so ordered against it.

(5)    On the interlocutory application of the applicant, and under Order 6 of the AOA, the applicants if so advised have leave to amend the AOA to apply to review the 30 January Decision of the NLC under the ADJR Act and at common law, provided any such amended application does not assert any fact or basis for that claim which is not consistent with the First Judgment.

99    In relation to the amended Cross-Claim of the third applicant, the orders are:

(1)    The amended Cross-Claim is dismissed, save for preserving liberty to apply to file and serve a further amended Cross-Claim.

(2)    On the amended Cross-Claim of the third applicant, and on the interlocutory application of the third applicant of 17 April 2015, the third applicant have leave to amend the amended Cross-Claim broadly in terms of the proposed Further Amended Notice of Cross-Claim annexed to that interlocutory application, that is to apply to review the 30 January Decision of the NLC under the ADJR Act and at common law, provided that such amended cross-claim is otherwise properly drawn and accords with the First Judgment.

(3)    The cross-claimant pay to the first respondent and the second respondent (as respondents to the cross-claim) costs of the Amended Cross-Claim to 21 April 2015 and of the interlocutory application of the first respondent of 20 March 2015.

100    As noted earlier in these reasons, rather than permit any debate about the status of the current interlocutory applications of the Rirratjingu and of the Galpu, I have ordered that the existing application and the existing Cross-Claim be, and do stand, amended by adding a claim in each that the applicants in each case have liberty to apply to amend the respective application or Cross-Claim.

101    So that it has not been suspected of being overlooked, I have not separately made any order for costs of the Gumatj interlocutory application of 17 April 2015. It rode on the back of the NLC application and did not, itself, require separate consideration.

102    As a general comment, that reflects the very tangled web that presently exists in this proceeding. In my view, this is a matter where the parties would be well advised, as I am sure they have been, to explore the resolution of the issues between them by private mediation or informal negotiation. It is in essence about the split of money received by the NLC in the interests of the traditional owners of the relevant country. The NLC has the statutory role of deciding upon allocating that money, but it has no individual interest in the money save for performing that statutory role. I see no impediment to the NLC convening such a meeting, or of the senior elders of the three clans with that status taking that initiative. The fact that there are apparently within, at least within the Rirratjingu, some different views about the proper allocation of the quarterly payments is also a reason why such a course is desirable.

103    Finally, I note that I have not overlooked the contentions of the NLC that, having disposed of the claims as expressed on the pleadings as current at 4 February 2015, and although I have by these orders refused the applicants or the third respondent the opportunity to revisit the earlier NLC allocation decisions, the consequence should be that under rr 30.02 and 31.05 of the Federal Court Rules, the proceedings should simply have been dismissed. I have not done that because, in my view and in the interests of justice, issues concerning the legal validity of the NLC decisions prospectively, that is including the 30 January Decision, should be addressed and resolved in as expeditious a manner as practicable. The amendment of the proceedings is probably the best vehicle to do so. It will avoid or confront what might otherwise become a recurring sore in the relationship between the three clans, and to an extent possibly between some one or other of them and the NLC. The orders made do not enliven, by amendment, the previous claims directed to the process by which the 30 January Decision came to be made.

104    The amendments allowed, in the circumstances, do not transgress the boundaries of amendments as discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, as in essence the proceeding is but the vehicle to serve the interests of the administration of justice and does not involve permitting the re-visitation of the previous controversy resolved by the First Judgment: see eg per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98]. They do not, in my view, work any injustice, and they will avoid multiple proceedings.

Associate:

Dated:    24 August 2016