FEDERAL COURT OF AUSTRALIA

Gebadi v Woosup (No 2) [2017] FCA 1467

ORDERS

THE COURT DECLARES THAT:

1.    Larry Woosup and Beverley Tamwoy (also known as Beverley Mamoose) breached the duties they owed to the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998 being a native title claim group as described at [4] of the reasons for judgment published today by entering into an agreement described as an “Ancillary agreement” with Gulf Alumina Limited dated 4 December 2013 without first obtaining the authority of the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998.

2.    The financial benefits set out in the schedule to this declaration paid by Gulf Alumina Limited pursuant to the Ancillary agreement dated 4 December 2013 and received by Larry Woosup (whether in his own capacity or in purported exercise of a power or capacity as trustee of the Ankamuthi Western Cape Community Trust and whether by bank cheque payable to the Ankamuthi Western Cape Community Trust or paid into the Supreme Court of Queensland) were, at all relevant times, benefits held by Larry Woosup for and on behalf of the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998 being a native title claim group as described at [4] of the reasons published today:

Schedule of Financial Benefits

(a)    An amount of $20,000 paid by bank cheque dated 28 November 2013 made payable to “Ankamuthi Western Cape Community Trust” and deposited on 6 December 2013 into a National Australia Bank Limited account operated by Larry Woosup in the name of the Ankamuthi Western Cape Community Trust.

(b)    An amount of $95,000 paid by bank cheque dated 24 February 2014 made payable to “Ankamuthi Western Cape Community Trust” and deposited on 27 February 2014 into a Queensland Country Credit Union account operated by Larry Woosup in the name of the Ankamuthi Western Cape Community Trust.

(c)    An amount of $255,000 being part of an amount of $255,562.56 paid into the Supreme Court of Queensland by Gulf Alumina Limited in Supreme Court proceeding CS 86 of 2014 and paid out of Court by an order of the Court made on 25 July 2014.

3.    As to the benefits described in Declaration 2, Mr Woosup held those benefits on a constructive trust for and on behalf of the Ankamuthi native title claim group (the “beneficiaries”) being the native title claim group described at [4] of the reasons for judgment published today, from the moment Mr Woosup received those benefits represented by each payment (whether received by him in his own capacity or in purported exercise of a power or capacity as trustee of the Ankamuthi Western Cape Community Trust and whether by bank cheque payable to the Ankamuthi Western Cape Community Trust or paid into the Supreme Court of Queensland).

THE COURT ORDERS THAT:

4.    Larry Woosup account to the native title claim group for the Ankamuthi claim being a native title claim group as described at [4] of the reasons published today, for the financial benefits derived by him or under his control identified in Declaration 2 and the schedule to Declaration 2.

5.    Larry Woosup pay to and for the benefit of the native title claim group being the native title claim group as described at [4] of the reasons published today, an amount of $370,000 by paying that sum to Seven Rivers Aboriginal Corporation (ICN 8522) as trustee for and on behalf of the native title holders as described at [4] to the reasons published today, by 6 February 2018.

6.    Larry Woosup pay the monies required to be paid by Order 4 by paying the monies into Court in these proceedings by 6 February 2018.

7.    Larry Woosup and Beverley Tamwoy pay the costs of the applicants of and incidental to these proceedings including reserved costs.

8.    The proceeding is adjourned to a date after 6 February 2018 to be nominated by the Federal Court.

9.    Having regard to the declarations and orders made in this proceeding and the findings of fact which have given rise to those declarations and orders and having regard to the considerations described at [172] and [173] of the reasons for judgment published today, Mr Woosup is restrained from exercising any power or authority or purporting to exercise any power or authority to effect transactions of any kind on any account held by Seven Rivers Aboriginal Corporation (ICN 8522) with or at any bank or financial institution as trustee for the native title holders being the Ankamuthi People as described at [4] of the reasons for judgment published today to which any monies are or may be deposited by reason of payments made by Gulf Alumina Limited or any other party for and on behalf of the native title holders.

10.    In relation to Order 9, Mr Woosup has liberty to apply on seven days’ notice to the applicants.

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

REASONS FOR JUDGMENT

GREENWOOD J:

Background to these proceedings and the relevance of the native title determination proceedings and the statutory scheme under the Native Title Act 1993 (Cth) to the present proceedings

1    These proceedings are brought by Mr Mark Gebadi, Ms Tracey Ludwick, Ms Catherine Salee, Mr Benjamin Tamwoy, Mr Asai Pablo, Mr Charles Woosup and Mr Nelson Stephen in a representative capacity on behalf of the Ankamuthi People.

2    The seven applicants in the present proceedings are seven of the 10 applicants who maintained proceedings on behalf of the Ankamuthi People as a native title claim group within the meaning of that term in s 253 of the Native Title Act 1993 (Cth) (the “Act”), under s 61 of that Act, by which they sought a determination of native title in particular land and waters the subject of native title determination application QUD 6158 of 1998.

3    On 26 July 2017, this Court made a determination of native title in particular land and waters by reference to the extensive orders and schedules to the orders made that day, supported by reasons for judgment published on that day: Woosup on behalf of the Ankamuthi People #1 v State of Queensland [2017] FCA 831.

4    The native title claim group described as the Ankamuthi People (for the purposes of the s 61 determination application, and the persons the Court determined to be the holders of native title) are those persons descended by birth or adoption from the following apical ancestors:

(a)    Woobumu and Inmare;

(b)    Bullock (father of Mamoose Pitt, husband of Rosie/Lena Braidley;

(c)    Charlie Mamoose (father of Silas, Larry, Johnny and Harry Mamoose);

(d)    Charlie Seven River;

(e)    Toby Seven River (father of Jack Toby);

(f)    Asai Charlie;

(g)    Sam and Nellie (parents of George Stephen);

(h)    Mammus/Mamoos/Mark/Mamoose and his siblings, Peter and Elizabeth);

(i)    Charlie Maganu (husband of Sarah McDonnell);

(j)    Polly (wife of Wautaba Charlie Ropeyarn).

5    It is not necessary in these reasons to set out in any detail the terms of the orders made in that determination. However, it should be noted that the determination was to take effect upon the agreement referred to in para 2(a) of Sch 4 being registered on the Register of Indigenous Land Use Agreements within, put simply, six months of 26 July 2017: Order 2, 26 July 2017. That event occurred.

6    The Court also determined that upon the native title determination taking effect, the native title was to be held in trust for the common law holders. The prescribed body corporate nominated on behalf of the Ankamuthi People in accordance with s 56(2)(a) of the Act “to be trustee of the native title” for the Ankamuthi People as the common law holders was and is Seven Rivers Aboriginal Corporation (ICN 8522). That entity must perform the obligations required by s 57(1) of the Act: Order 18, 26 July 2017; [45], reasons for judgment, 26 July 2017.

7    On 29 October 1997, the Ankamuthi People made three separate claims of native title in particular land and waters. Those applications were lodged with the National Native Title Tribunal. On 21 July 1999, the three applications were combined and became Application QUD 6158 of 1998 which became described as the Ankamuthi People #1 native title claim. The combined Ankamuthi claim was filed in the National Native Title Tribunal on 15 July 1999. The combined claim was entered on the Register of Native Title Claims on 21 September 1999.

8    The first respondent, Mr Larry Woosup, and the second respondent, Ms Beverley Tamwoy (also known as Beverley Mamoose), were formerly two of 13 persons authorised by the Ankamuthi native title claim group to prosecute the native title determination application under s 61 of the Act.

9    However, there is a procedural aspect of the application that should be noted. The five persons who originally constituted the Ankamuthi applicant were Mr Woosup, Ms Tamwoy, Mr Arthur Woosup, Mr Robert Dick and Mr Silas Woosup. However, Mr Silas Woosup died on 4 June 2000. Mr Arthur Woosup died on 25 October 2005 and Mr Robert Dick died on 26 December 2012.

10    Accordingly, meetings of the Ankamuthi People were held to authorise the present seven applicants together with Mr George Mamoose, Mr Michael Toby and Ms Ella Hart (Deemal) to also become individuals constituting the Ankamuthi applicant. Mr Larry Woosup and Ms Beverley Tamwoy were authorised to continue to be individuals constituting the Ankamuthi applicant along with the new appointees. As a result, the Ankamuthi applicant was then constituted by 13 individuals. An order to that effect was made by the Court on 9 December 2014 under s 66B of the Act.

11    However, a further application was made to the Federal Court of Australia (the “Federal Court”) under s 66B of the Act (in the determination proceedings QUD 6158 of 1998), consequent upon resolutions of a meeting of the Ankamuthi People authorising that application to be made and authorising a reconstitution of the Ankamuthi applicant, by which an order was sought that the present seven applicants together with Mr George Mamoose, Mr Michael Toby and Ms Ella Hart (Deemal) replace the existing 13 persons then constituting the Ankamuthi applicant. An order to that effect was made on 27 April 2016. In effect, Mr Larry Woosup, Ms Tamwoy and Mr Richard Woosup were removed, in conformity with s 66B of the Act, as persons constituting the Ankamuthi applicant consistent with the authorisation resolutions of the Ankamuthi People to that effect.

12    It follows that Mr Larry Woosup and Ms Tamwoy were individuals constituting the Ankamuthi applicant from the outset of the making of the native title claim (originally filed as three separate determination applications on 29 October 1997 and then combined into QUD 6158/1998 on 21 July 1999) until 27 April 2016 when they were removed under s 66B of the Act in conformity with the authorisation resolutions of the native title claim group.

13    It is now necessary to say some things about the relevance of the Act and the statutory arrangements effected by that Act, to the present proceedings.

14    The Preamble to the Act contains a number of very important propositions adopted by the Parliament of Australia. It recites, among other things, these matters:

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

15    The Preamble also recites that “the High Court has held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands”. The Preamble also says this:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

[emphasis added]

16    Apart from recognising and protecting native title, one of the other “main objects” of the Act is to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings: s 3(a) and s 3(b) of the Act. There are basically two kinds of acts affecting native title. They are past acts and future acts. Future acts are generally acts done after the commencement of the Act and they are acts that either validly affect native title or are invalid because of native title: s 4(3).

17    Section 13 of the Act provides that an application may be made to the Federal Court under Pt 3 for a determination of native title (in relation to an area of land for which there is no existing approved determination of native title). Sections 61(1) and 61(2) in Pt 3 give expression to applications contemplated by s 13. An application may be made under s 61 by individuals authorised by those persons who according to their traditional laws and customs “hold the common or group rights and interests” comprising the particular native title claim provided that the authorised individuals are also members of the native title claim group: see also the definition of native title claim group in s 253 of the Act. Section 61 also contemplates applications for revocation or variation of an approved determination of native title on the grounds set out in s 13(5) and applications for a determination of compensation under s 50(2) of the Act.

18    Section 61(2) provides that in the case of a native title determination application made by persons authorised to make the application (by a native title claim group) or a compensation application by persons authorised to make that application (by a compensation claim group), those persons are, respectively in each case, jointly the applicant and none of the other members of the native title claim group or compensation claim group is the applicant. In other words, the relevant individuals constituting the applicant bring the claim as applicant on behalf of all those persons who, in the case of a native title determination application, hold the common or group rights and interests comprising the particular native title claim. In the case of a compensation application, the relevant individuals constituting the applicant bring the claim as applicant on behalf of all those persons who make up the compensation claim group.

19    The expressions native title or native title rights and interests are given meaning by s 223 of the Act. For example, ss 223(1) and 223(2) are in these terms:

Division 2 – Key concepts: Native title and acts of various kinds etc.

223    Native title

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2)    Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

20    Those individuals who become or who are constituted as the applicant prosecute each application for and on behalf of all members holding the common or group rights and interests comprising the particular native title or, where relevant, those persons comprising the compensation claim group (apart from revocation or variation applications). In doing so, the Act contemplates that those individuals constituting the applicant act in the interests of the group members and also in their own interests but, in respect of their own interests, they do so only in their capacity as members of the group, and not in furtherance of their private interests which in any way conflict with the interests of the relevant group. These arrangements under the Act reflected in ss 13 and 61, and all of the provisions of the Act relating to those sections, have been enacted by the Parliament of Australia in order to give effect to the Preamble to the Act and the main objects of the Act.

21    As earlier mentioned, the Preamble contemplates that every reasonable effort must be made to secure the agreement of native title holders through a special right to negotiate in respect of future acts and one of the main objects of the Act is to establish ways in which future dealings affecting native title may proceed: s 3(b) of the Act.

22    One of the ways in which that object is sought to be achieved is by operation of Subdivision O of Div 3 of Pt 2 of the Act which provides that unless a provision of the Act provides otherwise, a future act is invalid to the extent that it affects native title: s 24OA; s 223. As to the scope of a future act, s 233(1) is in these terms:

233    Future act

Definition

(1)    Subject to this section, an act is a future act in relation to land or waters if:

(a)    either:

(i)    it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii)    it is any other act that takes place on or after 1 January 1994; and

(b)    it is not a past act; and

(c)    apart from this Act, either:

(i)    it validly affects native title in relation to the land or waters to any extent; or

(ii)    the following apply:

(A)    it is to any extent invalid; and

(B)    it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)    if it were valid to that extent, it would affect native title.

23    Subdivision P which falls within Div 3 of Pt 2 addresses the topic of the “Right to negotiate”. Section 25 of the Act sets out an explanatory overview of the subdivision. The subdivision applies to certain future acts done by the Commonwealth, a State or a Territory which fall into four categories.

24    First, certain acts which fall within s 24IC of the Act. That section addresses the topic of future acts that are permissible if the acts involve the renewal, or the re-grant or re-making, or the extension of the term of a lease, licence permit or authority that is valid; and, particular other factors under the section are engaged.

25    Second, certain conferrals of mining rights.

26    Third, certain compulsory acquisitions of native title rights and interests.

27    Fourth, other acts approved by the Commonwealth Minister: s 25(1).

28    Section 25(2) recognises that before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. If no agreement is reached, an arbitral body or a Minister will make a determination about the act in question: s 25(3).

29    If the procedures set out in Subdivision P are not complied with the act will be invalid to the extent it affects native title: s 25(4). The States and Territories may make their own laws as alternatives to Subdivision P but the Commonwealth Minister must be satisfied as to certain matters before such laws can take effect: s 25(5). The remaining provisions of Subdivision P deal with each of the matters addressed as matters of overview in s 25, in detail.

30    Section 26 sets out the circumstances in which Subdivision P applies to a future act which gives expression to the summary addressed in s 25(1). In particular, the subdivision applies to a future act if s 24IC applies to the act; and, the act is done by the Commonwealth or a State or a Territory; and, the renewal, re-grant, re-making or extension of the term of a lease, licence permit or authority, creates a right to mine. Section 26 sets out further application factors which engage Subdivision P, and s 26(2) identifies a range of exclusions. Subdivision P then goes on to extensively identify classes of future acts and conditions attaching to them. Section 27 addresses the topic of an arbitral body.

31    Section 29 provides that before the act is done, the Government party must give notice of the act in accordance with that section.

32    The Government party must give notice to any registered native title body corporate in relation to any of the land or waters that will be affected by the act and unless there are one or more registered native title bodies corporate in relation to all of the affected land or waters, the Government party must give notice to any registered native title claimant, that is, those persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title. If the doing of the act has been requested by a particular person (such as an applicant for a licence or a lease) notice must be given to that party, otherwise called a grantee party. Notice must also be given, subject to the section, to any representative Aboriginal/Torres Strait Islander body.

33    Section 30(1) provides that any person who, four months after the day nominated as the notification day in a notice given by a Government party, is a registered native title claimant in relation to any of the land or waters that will be affected by the Act, is a native title party provided the matters recited at s 30(1)(a)(i) and (ii) are satisfied.

34    Section 30(1)(b) also provides that any body corporate that (three months after the notification date) is a registered native title body corporate in relation to any of the land or waters that will be affected by the act, is also a native title party. Section 30(1)(c) provides that any body corporate that becomes a registered native title body corporate in relation to any land or waters that will be affected by the act (after the relevant period) and claim details have been entered on the Register of Native Title Claims before the end of the relevant period, is also a native title party.

35    Section 30(2) provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant.

36    Section 30(3) is in these terms:

Registered native title rights and interests

(3)    For the purposes of this Subdivision [P], the registered native title rights and interests of a native title party are:

(a)    if the native title party is such because an entry has been made on the National Native Title Register – the native title rights and interests described in that entry; or

(b)    if the native title party is such because an entry has been made on the Register of Native Title Claims – the native title rights and interests described in that entry.

37    Section 30A provides that for the purposes of the right to negotiate, each of a Government party, any native title party and any grantee party is a negotiation party.

38    Section 31 provides that unless the notice given by a Government party under s 29 includes a statement that the Government party considers that the act attracts the expedited procedure set out in s 32, the Government party must give all native title parties an opportunity to make submissions to it in writing or orally regarding the act (s 31(1)(a)); and, the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties: s 31(1)(b).

39    Section 33 addresses the topic of certain things to be included in the negotiations. Section 33 is in these terms:

33    Negotiations to include certain things

Profits, income etc.

(1)    Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:

(a)    the amount of profits made; or

(b)    any income derived; or

(c)    any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

Existing rights, interests and use

(2)    Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:

(a)    existing non-native title rights and interests in relation to the land or waters concerned;

(b)    existing use of the land or waters concerned by persons other than native title parties;

(c)    the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.

40    Section 28 provides that subject to the Act, an act to which Subdivision P applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the factors identified at (a) to (h) are satisfied. One of those factors is “an agreement of the kind mentioned in s 31(1)(b) is made”: see [38] of these reasons. If such an agreement is made before the act is done, the act is not invalid.

41    These provisions in Subdivision P are critical matters which give expression to the main object at s 3(b) of the Act and give voice to the expectation of the Parliament of Australia recited in the Preamble quoted at [15] of these reasons. These provisions are directed to providing any native title party (as that term is understood for the purposes of the subdivision) with a right to negotiate in relation to those future acts to which Subdivision P applies and which affect the registered native title rights and interests (as that term is understood for the purposes of the subdivision) concerning any relevant land and waters, before the future act “is done”: s 29 of the Act.

42    Subdivision P is plainly beneficial legislation directed to providing a native title party with an opportunity to make submissions to Government about the act before it occurs. Subdivision P is also beneficial enabling legislation in the sense that it requires the Government party and particularly the grantee party to negotiate in good faith with the native title party with a view to securing the agreement of that party to the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties to the agreement.

43    It follows as a matter of construction of the text of Subdivision P (in the context of the objects and purpose of the Act and the provisions related to Subdivision P) that any negotiations conducted in the exercise of the right to negotiate by, for example, persons whose names appear on the Register of Native Title Claims (as applicant in relation to claims to hold native title; s 223, s 253), are negotiations for and on behalf of the native title claim group. Should those negotiations lead to an agreement for the purposes of s 31(1)(b) containing obligations to be performed by the grantee conferring a right, benefit or entitlement on any native title party (such as a right to receive payments and royalties from a mining company), that right, benefit or entitlement is enjoyed by all persons who hold the common or group rights and interests comprising the particular native title as claimed.

44    Having regard to the statutory scheme, it would not be consistent with that scheme, for example, for some persons amongst a group of persons constituting an applicant for the purposes of a s 61 native title determination application, to enter into a s 31(1)(b) agreement with a person or entity (grantee) and not disclose the fact of it to the claim group or the other persons constituting the applicant, and cause payments made under the agreement to be applied and used for the personal benefit of those persons within the applicant who had struck the agreement, by causing payments to be made into, for example, undisclosed bank accounts or by causing payments to be transferred into the private accounts of those persons. The payments under such an agreement do not become the “applicant’s money”, personally. The payments retain their character as payments made to and for the benefit of those persons who hold the common or group rights and interests comprising the particular native title as claimed. An applicant, when exercising any aspect of the right to negotiate and bring into existence a s 31(1)(b) agreement, does so as applicant for those persons who hold the common law group rights and interests comprising the native title as claimed.

45    The relevance of these matters discussed to this point can be immediately seen in the essential elements of the claims made by the seven applicants in these proceedings. They essentially say this.

46    First, on 4 December 2013, Mr Larry Woosup and Ms Beverley Tamwoy entered into an agreement described as an “Ancillary agreement” with Gulf Alumina Limited (“Gulf”). The agreement recites that Mr Robert Dick is also a party to the agreement. However, Mr Dick had died on 26 December 2012. The document is signed by Mr Woosup and Ms Tamwoy. The document recites that Mr Woosup and Ms Tamwoy enter into the agreement “on their own behalf and on behalf of the Ankamuthi People”. That document recites that it is an agreement for the purposes of s 31 of the Act. The document sets out the obligations of Gulf including an obligation to make the payments set out in Sch 2 to the agreement. The document recites that the agreement relates solely to, and is for the sole purpose of, permitting Gulf to conduct the “Skardon River Bauxite Mining Project” (the “SRBM Project”) which has a particular definition at cl 1.1 of the agreement. Schedule 2 provides for the payment of a “Base Royalty” (as defined). Clause 2 of Sch 2 provides that in recognition that Base Royalty payments will not be payable under the agreement until commencement of production, Gulf will pay the “Traditional Owners” $20,000 upon execution of the agreement; $350,000 upon execution of relevant “Deeds” (providing for the addition of the mineral bauxite to identified leases and other grants to be executed by the State); and $30,000 upon commencement of production of the SRBM Project, following a three month commissioning and trial program. The Deeds were executed on 20 January 2014. The document also provides for certain “offsets”. I will return to the Gulf agreement later in these reasons.

47    Second, relevantly for the purposes of these proceedings, Mr Woosup and Ms Tamwoy failed to disclose the agreement to each of the other persons constituting the applicant consequent upon the reconstitution of the applicant as described at [10]-[12] of these reasons or the Ankamuthi claim group and failed before entering into the agreement with Gulf to disclose to and submit the proposal to a meeting of the Ankamuthi People enabling the Ankamuthi People to decide whether to enter into the Ancillary agreement with Gulf or not.

48    Third, Mr Woosup and Ms Tamwoy owed fiduciary obligations to the Ankamuthi People as members of the native title claim group.

49    Fourth, by entering into the agreement with Gulf, Mr Woosup and Ms Tamwoy breached particular fiduciary obligations they owed to the Ankamuthi native title claim group.

50    Fifth, by receiving financial benefits under the Gulf agreement; by not advising the members of the native title claim group of the payments; by retaining and using the monies paid under that agreement for his own benefit; and by not paying the financial benefits to the native title claim group, Mr Woosup breached particular fiduciary obligations he owed to the Ankamuthi native title claim group.

51    Sixth, having regard to those circumstances and the facts relevant to those circumstances, Mr Woosup is required to account to the Ankamuthi native title claim group for the financial benefits he received.

52    It can be seen therefore that the central contention in these proceedings is that Mr Woosup and Ms Tamwoy owed fiduciary obligations to the Ankamuthi native title claim group when acting as applicant and that they failed to discharge those obligations. In the case of Mr Woosup, it is said that he has taken for his own benefit, benefits payable under the Gulf agreement for and on behalf of the Ankamuthi native title claim group. The first question is whether Mr Woosup and/or Ms Tamwoy owe fiduciary obligations to the Ankamuthi native title claim group, that is to say, are they in a fiduciary relationship with that group? The second question is, if fiduciary obligations are owed by either of them to the claim group, what are the obligations so owed? The third question is, have either of them failed to discharge those obligations? The way in which the fiduciary duty claim is pleaded and the defence of Mr Woosup and Ms Tamwoy are set out later in these reasons.

53    These proceedings, as originally framed, joined Gulf as the third respondent and the State of Queensland as the fourth respondent. The applicants sought declarations that the Ancillary agreement (described as the “Purported Ancillary Agreement”) is not binding upon the applicants. Other relief was also sought that particular acts in relation to the mining of bauxite and particular mining leases were not acts within s 28(1) of the Act. Those claims for relief raised matters arising under the Act. The fiduciary duty claims were claims pleaded against Mr Woosup and Ms Tamwoy. The claims against Mr Woosup and Ms Tamwoy raise questions which, in the context of the discussion at [1]-[44] of these reasons, engage the original jurisdiction of the Federal Court because the questions in issue engage “matters arising” under a law made by the Commonwealth Parliament, namely, the Native Title Act 1993 (Cth): s 39B(1A)(c), Judiciary Act 1903 (Cth). Section 69(2) of the Act also provides that applications may be made to the Federal Court “in relation to a matter arising under this Act”. Thus, jurisdiction is conferred by the Judiciary Act and the Native Title Act. The fiduciary duty claims are also claims brought in a proceeding in which other claims were made concerning questions arising under the Act.

The claims made against Mr Woosup and Ms Tamwoy

54    Before determining the merits of the claims of the applicants, it is necessary to first examine some procedural aspects of the proceedings and then determine the relevant facts.

55    As to the procedural aspects, these matters should be noted.

56    The proceedings were commenced on 14 April 2016 by an originating application and a statement of claim. The originating application and statement of claim were amended on 2 June 2016. On 6 July 2016, Girgenti Lawyers filed a defence on behalf of Mr Woosup and Ms Tamwoy to the amended statement of claim (“ASOC”). The defence is signed by Mr Stewart McDermid, a lawyer employed by that firm. The pleading was prepared or settled by Mr Andrew Preston of counsel. In the ASOC, the applicants said this:

FIDUCIARY DUTY CLAIM

15.    In accepting the role of being a member of the Ankamuthi Applicant [Mr Wossup and Ms Tamwoy], undertook and/or agreed to act for or on behalf of the native title claim group in the exercise of a power or discretion which would affect the interests of the native title claim group in a legal or practical sense.

16.    At the time of executing the Purported Agreement [the Ancillary agreement] [being] the Purported Section 31 Agreement, [Mr Woosup and Ms Tamwoy], in their role as a member of the Ankamuthi Applicant:

(a)    were prohibited from pursuing any personal interest by entering into any transaction or engagement in which they had a personal interest conflicting with the interest of the members of the native title claim group; and/or

(b)    were in a fiduciary relationship with members of the native title claim group.

17.    At the time of executing the [Gulf agreement], [Mr Woosup and Ms Tamwoy] in their role as a member of the Ankamuthi Applicant, owed the following duties to members of the native title claim group:

(a)    to not place themselves in a position where their interests and duties conflicted with the interests of, and the duties owed to, members of the native title claim group; and/or

(b)    to not secure a personal benefit; and/or

(c)    unless otherwise expressly permitted, to not make a profit from their position of trust; and/or

(d)    to note place themselves in a position where their personal duty and their personal interests conflicted with those of the native title claim group.

18.    [Mr Woosup and Ms Tamwoy] received from [Gulf] financial benefits pursuant to the [Gulf agreement].

[The particulars given include a reference to the obligation to pay $20,000 upon execution of the Gulf agreement; the date of the agreement; the obligation to pay $350,000 upon execution of the “Deeds” as defined by cl 1.1 of the Gulf agreement; and that the Deeds were executed on 20 January 2014.]

19.    [Mr Woosup and Ms Tamwoy]:

(a)    have not at any time advised members of the native title claim group of the receipt of the financial benefits paid to them by [Gulf] pursuant to the [Gulf agreement];

(b)    have not paid to the native title claim group any or all of the financial benefits paid to them by [Gulf] under the [Gulf agreement];

(c)    have retained for their own benefit some or all of the financial benefits paid to them by [Gulf] pursuant to the [Gulf agreement].

20.    In the premises, [Mr Woosup and Ms Tamwoy] breached the duty they owed to the native title claim group by:

(a)    placing themselves in a position where there interests and duties as a member of the Ankamuthi Applicant conflicted with the interests of, and the duties owed to, the members of the native title claim group; and/or

(b)    securing a personal benefit in their role as a member of the Ankamuthi Applicant; and/or

(c)    making a profit from their role as a member of the Ankamuthi Applicant without the permission of the members of the native title claim group to do so; and/or

(d)    placing themselves in a position where their personal duty and their personal interest as members of the Ankamuthi Applicant conflicted with those of the native title claim group.

57    As to those matters, the respondents said this in their defence:

FIDUCIARY DUTY CLAIM

12.    The Respondents deny that the points of law and legal conclusions pleaded in paragraphs 15, 16 and 17 of the [ASOC] arise in the premises.

13.    [Mr Woosup]:

(a)    does not admit the allegation contained in paragraph 18 of the [ASOC] that the agreement referred to therein was a purported agreement and says that the agreement was an agreement within the meaning of s 31 of the [Act]; and

(b)    admits the other allegations contained in that paragraph.

14.    [Ms Tamwoy] denies the allegations contained in paragraph 18 of the [ASOC].

15.    [Ms Tamwoy] denies the allegations contained in paragraph 19 of the [ASOC].

16.    [Ms Tamwoy] denies the allegations contained in paragraph 20 of the [ASOC].

58    On 18 July 2016, the solicitors for the applicants sought discovery from the respondents in relation to issues arising on the pleadings. On 28 July 2016, Girgenti Lawyers said that they were having difficulties obtaining instructions from the respondents due to their remote location. On 3 August 2016, the solicitors for the applicants pressed the issue of discovery and suggested a protocol for doing that. On 9 August 2016, leading up to a directions hearing on 16 August 2016, Girgenti Lawyers wrote to the solicitors for the applicants saying that they had been unable to obtain further instructions from the respondents and they attached a notice dated 9 August 2016 of intention to cease acting by filing the relevant document in the Registry seven days after service on the respondents of a notice of ceasing to act.

59    On 12 August 2016, Girgenti Lawyers wrote to the solicitors for the applicants attaching another copy of the notice of ceasing to act for the respondents. They advised that they would appear at the directions hearing by telephone. A notice of ceasing to act for the respondents dated 17 August 2016 was filed on 22 August 2016. On 16 August 2016, the Court made orders that the respondents give standard discovery limited to the matters pleaded at paras 15 to 20 of the ASOC, within 21 days. Girgenti Lawyers appeared before the Court on 16 August 2016 by telephone on behalf of the respondents.

60    On 31 August 2016, the solicitors for the applicants sent a letter dated 30 August 2016 by email and by post to each respondent enclosing a copy of the orders made on 16 August 2016 and calling for compliance by 6 September 2016. On 7 September 2016, the solicitors for the applicant sent a letter by email to Mr Woosup noting that no response had been received from either Mr Woosup or Ms Tamwoy. The letter recited that because the solicitor for Mr Woosup and Ms Tamwoy had withdrawn from acting for the respondents, the applicants sought compliance in terms of discovery by 20 September 2016.

61    The proceedings came before the Court again on 8 November 2016 for a directions hearing. Although served with notice of the directions hearing, there was no appearance by either respondent or by any person on their behalf.

62    On 8 November 2016, the Court made orders that Mr Woosup and Ms Tamwoy attend before the Court at the nominated place and time in order to enable the Court to address outstanding questions. Each respondent was required to attend until discharged from further attendance by a Judge of the Court. The solicitors for the applicants were directed to effect personal service of a copy of the orders upon each respondent. The proceedings were adjourned to the nominated time and date, that is, 10.15am on Wednesday, 23 November 2016.

63    The order of 8 November 2016 was served on Ms Tamwoy by Mr Daniel Twikler. The order was served upon Mr Woosup by Mr Dominic Melton. Neither respondent appeared before the Court on 23 November 2016. The affidavit of Mr Melton referred to a conversation he had with Mr Woosup on the morning of 14 November 2016 when serving him with the order of 8 November 2016. Mr Melton asked Mr Woosup whether he was the person named in the documents and Mr Woosup replied that he was and that he knew “what it’s about”.

64    On 1 December 2016, an order was made for the issue of a warrant to arrest Mr Woosup. However, the orders also provided for the warrant to remain “held in the Registry” and not to be executed unless Mr Woosup failed to comply with Order 9 of the orders. Order 9 was framed so as to provide Mr Woosup with an opportunity to attend before the Court within 14 days of 1 December 2016 and explain his failure to comply with the earlier order (and other procedural matters). Mr Woosup responded within the 14 days and proffered an explanation for his failure to attend the Court on 23 November 2016. The Court took the opportunity to address other outstanding matters in relation to the proceeding.

65    On 14 October 2016, a subpoena issued directed to the Commonwealth Bank of Australia (the “Commonwealth Bank” or “CBA”) requiring the production of all bank statements, account transaction records and any other records in relation to the establishment of, and banking transactions in relation to, any bank account held with the Commonwealth Bank where the account-holder was or included Ms Tamwoy or Mr Woosup in various capacities or under various descriptions. It is not necessary to recite the precise way in which the subpoena was framed.

66    On 2 December 2016, a subpoena in similar terms issued directed to National Australia Bank Limited.

67    On 3 January 2017, a subpoena is similar terms issued directed to Queensland Country Credit Union Limited.

68    On 9 December 2016, the Court made further orders in the proceeding including an order that the proceeding be listed for hearing on 4 and 5 April 2017. The applicants were directed to serve upon the respondents the affidavit material upon which they would rely by 22 January 2017.

69    On Friday, 20 January 2017, Ms Jo-anne Kay Campbell served Mr Woosup and Ms Tamwoy with a copy of nine affidavits relied upon by the applicants. The manner of service is described at paras 2 and 3 of Ms Campbell’s affidavit sworn 9 March 2017. The documents were sent to two separate addresses addressed to both respondents. The documents sent to one of those addresses were returned. The documents sent to the other address, 136 Wilkinson Street, Manunda were not returned.

70    On 16 February 2017, Ms Megan Marlow served Mr Woosup and Ms Tamwoy with further copies of the nine affidavits in the manner described in Ms Marlow’s affidavit affirmed on 23 March 2017. In addition, Mr Woosup and Ms Tamwoy were served on 22 February 2017 with a copy of each subpoena issued to each bank and Queensland Country Credit Union Limited in the manner described in Ms Marlow’s affidavit. Mr Woosup was also served on 24 February 2017 with, relevantly, a notice to admit facts; a notice to admit documents; a blank Form 42; and copies of documents referred to in the notice to admit documents in the manner described in Ms Marlow’s affidavit.

71    On 28 March 2017, Mr Jason Roberts served Mr Woosup with a list of authorities and legislation to be relied upon by the applicants in the proceeding in the manner described in his affidavit affirmed on 29 March 2017. The same material was served upon Ms Tamwoy in the manner described by Mr Roberts in his affidavit.

72    On 28 March 2017, Ms Amy Louise Schultz served Mr Woosup with a further copy of the list of authorities and legislation relied upon by the applicants in the manner described in Ms Schultz’s affidavit affirmed on 29 March 2017.

73    On 28 March 2017, Mr Jason Roberts also served Mr Woosup with a copy of the list of authorities and legislation relied upon by the applicants in the manner described in his affidavit affirmed 29 March 2017.

74    The various documents referred to at [69] to [73] were served in the manner described by the deponents by leaving the documents at physical premises and by transmitting the documents by email to Mr Woosup and Ms Tamwoy. I am satisfied that all of that material came to the attention of Mr Woosup and Ms Tamwoy. At a subsequent directions hearing mentioned later in these reasons, Mr Woosup made plain that he had received all of the affidavit material as he expressed the view that he wanted to cross-examine each and every one of the deponents relied upon by the applicants.

75    On 14 March 2017, Mr Larry Woosup sent an email to the Federal Court at 4.41pm attaching a letter dated 14 March 2017. In that letter, Mr Woosup said that he was suffering hardship and stress and had recently been diagnosed with a hernia. He said that he had no legal representation and was not in a position to meet a requirement to respond to the claims made against him in this proceeding. He expressed distress that he had been removed from the Ankamuthi native title claim under s 66B of the Act. On 3 April 2017, the Court convened a case management conference in the proceeding attended by Mr Woosup. At this stage, the trial of the action was to occur on 4 and 5 April 2017 in Brisbane. The Court took into account the remarks made by Mr Larry Woosup in his letter of 14 March 2017. Neither Mr Woosup nor Ms Tamwoy had filed any affidavits in the proceeding. Nor had they identified any issue which they wished to ventilate in furtherance of their defence in the proceeding. Nor had they given discovery. Neither Mr Woosup nor Ms Tamwoy had responded to the notice to admit facts or the notice to admit the authenticity of documents. Nevertheless, Mr Woosup expressed a desire to cross-examine all of the witnesses to be called by the applicants. Those witnesses relied upon by the applicants who had filed affidavits as evidence-in-chief were these: Mark Gebadi, Nigel Hales, Harold Ludwick, Tracey Ludwick, Jason Roberts, Catherine Salee, Nelson Stephen, Benjamin Tamwoy, Kevin Wone and Charles Woosup.

76    Having regard to the imperative in s 37M of the Federal Court of Australia Act 1976 (Cth) (the “Court Act”) to take into account the overarching purpose of the civil practice and procedure provisions in facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible and the powers conferred upon the Court in s 37P of the Court Act, the Court, having heard the applicants and Mr Woosup, adjourned the trial of the proceeding and listed the matter for hearing in Cairns on 25 and 26 July 2017. Although a number of considerations were taken into account, the substantial costs to be incurred in flying to Brisbane and accommodating the 10 witnesses described at [75] of these reasons suggested that the most efficient and inexpensive way of conducting the proceeding was to list the matter for trial in Cairns which was the most convenient forum for all of the parties: see Gebadi v Woosup [2017] FCA 347. In addition, the adjournment of the trial to 25 and 26 July 2017 would provide Mr Woosup, in particular, but also Ms Tamwoy with further time to respond to things which needed to be done by them in connection with the proceeding.

77    On Tuesday, 25 July 2017, the proceeding came on for hearing. Mr Nigel Hales is a solicitor and a member of the firm Miller Harris Lawyers, the solicitors for the applicants in these proceedings. Mr Hales says in his affidavit sworn 24 July 2017 that on 24 July 2017 he telephoned Mr Larry Woosup on a number provided to him by the Cape York Land Council. Mr Hales had a conversation with Mr Larry Woosup. Mr Hales says that the person responding to the call said that he was Mr Larry Woosup. Mr Hales told Mr Woosup that he needed to know whether Mr Woosup was intending to appear before the Court on the hearing of the action commencing on 25 July 2017, the following day. Mr Woosup said that he was not going to attend. He said that he was suffering ill health and had no legal representation. When the matter came on for hearing on 25 July 2017, each respondent was called. Neither respondent appeared. The Court called upon the applicants to prove their case on the merits. They said that they were ready and prepared to do so. The applicants adduced their evidence.

78    It is now necessary to consider the evidence in support of the case advanced by the applicants.

The relevant factual matters

79    The seven applicants are Ankamuthi People.

80    They are and were at all material times members of the Ankamuthi native title claim group within the meaning of ss 61 and 253 of the Act for the purposes of the Ankamuthi native title determination application the subject of proceeding QUD 6158/1998. In this proceeding, they sue on their own behalf and on behalf of the members of the native title claim group known as the Ankamuthi People as described at [4] of these reasons. The Ankamuthi People so described are the holders of native title in accordance with the determination described at [3] of these reasons. As mentioned, they are seven of the 10 people who constituted the Ankamuthi applicant from 27 April 2016.

81    As earlier mentioned, Mr Larry Woosup and Ms Beverley Tamwoy are persons who constituted the applicant as described at [7] to [12] of these reasons. Thus, at all relevant times, Mr Woosup and Ms Tamwoy were members of the Ankamuthi People and they constituted the Ankamuthi applicant until they ceased to be members of the Ankamuthi applicant on 27 April 2016 as described at [11] of these reasons.

82    Six of the seven applicants have put on affidavits in the proceeding. Each of those six deponents says that he or she is an Ankamuthi person and that he or she was a member of the native title claim group for the purposes of the Ankamuthi native title determination application and claim: see the affidavits of Mark Gebadi, Tracey Ludwick, Catherine Salee, Nelson Stephen, Benjamin Tamwoy and Charles Woosup.

83    The applicants rely upon the affidavit of Mr Nigel Walter Hales sworn 20 January 2017. Mr Hales is the solicitor for the applicants. He deposes that the solicitors for Gulf provided him with a copy of the document described as the “Ancillary agreement” of 4 December 2013. The document is Annexure “NWH-13” to his affidavit.

84    Gulf is a company incorporated under the Corporations Act 2001 (Cth). The Ancillary agreement prepared by Gulf’s lawyers, McCullough Robertson, recites that Gulf has become the sole owner of Mining Leases ML6025 (the “Skardon River No 1” lease); ML40069 (the “Skardon Pipeline” lease) and ML40082 (the “Skardon Buffer” lease): the “Mining Leases”. The agreement recites that Gulf wishes to carry on the Skardon River Bauxite Mining Project as defined at cl 1.1 of the agreement (the SRBM Project) and has applied to the Queensland State Department of Natural Resources and Mines (“DNRM”) for the addition of the “specified mineral” bauxite to those Mining Leases. The agreement recites that Gulf is a joint applicant (as to a significant majority interest) with ACC Ecominerals Limited (“ACCE”) (as to a small interest) to the State of Queensland for the grant of two mineral development licences MDL425 and MDL423 and an exploration permit, EDM18242. The agreement recites that following the grant of MDL425, MDL423 and EPM18242, ACCE’s interest will be transferred to Gulf. The relevant interest of each joint venture participant is probably a confidential matter and therefore the extent of the interest in each case is not mentioned in these reasons.

85    The agreement also recites that the Ankamuthi People assert traditional rights and interests including native title in an area of land and waters that includes the “Project Area”. The Project Area is defined by reference to a map at Sch 1 to the agreement. The “Registered Claimants” are described as the living members of those persons constituting the applicant on behalf of the Ankamuthi People who have made the Ankamuthi native title claim and determination application over some but not all of the area over which the Ankamuthi People assert native title. Those then living members constituting the applicant were Mr Woosup and Ms Tamwoy.

86    The agreement also recites that Gulf and the Registered Claimants (Mr Woosup and Ms Tamwoy) have entered into the agreement for the purposes of s 31 of the Act in relation to both the addition of the mineral bauxite to the Mining Leases and the grant of MDL425, MDL423 and EPM18242.

87    Mr Woosup and Ms Tamwoy make the agreement on their own behalf and on behalf of the Ankamuthi People defined as the native title claim group in the Ankamuthi native title determination application.

88    The agreement contains a definition of “Relevant Ankamuthi Party” in these terms:

89    Clause 5(a) provides that on the terms and conditions of the agreement, Mr Woosup and Ms Tamwoy consent to the following four things to enable Gulf to conduct the SRBM Project:

(i)    the addition of the mineral bauxite to ML6025, ML40069 and ML40082; and

(ii)    the grant to [Gulf] of MDL425, MDL423 and EPM18242; and

(iii)    the grant to [Gulf] of any future tenements under the [Mineral Resources Act 1989 (Qld)] for the purposes of exploring for, mining and/or processing bauxite within the scope of the [SKRBM Project], that arise out of, and relate to land and/waters in the areas subject to, each of MDL423, MDL425 and EPM18242; and

(iv)    the extension, renewal, replacement, conversion or substitution of any Tenements to the extent required for the conduct of the [SKRBM Project].

90    Clause 5(b) clarifies the things to which Mr Woosup and Ms Tamwoy do not agree.

91    Clause 5(c) requires Gulf to give the Relevant Ankamuthi Party a copy of each application for a tenement or for a variation to a tenement and a copy of each tenement once granted or varied. Mr Woosup and Ms Tamwoy acknowledge that Gulf may want to mine kaolin under the Mining Leases.

92    In consideration of the cl 5 consents given by Mr Woosup and Ms Tamwoy, Gulf is required to comply with the obligations in cl 6 (and the terms generally). The cl 6 obligations include an obligation to make the Sch 2 payments. Schedule 2 sets out the “Financial Benefits”. Clause 1 sets out the “Base Royalty” and the methodology for calculation of the royalty payable to the Relevant Ankamuthi Party. Schedule 2 is a confidential schedule. However, cl 2 of Sch 2 (which, as to its terms, is not confidential having regard to the filed pleadings), contains the following “prepayments”, payable to the “Traditional Owners”:

(a)    $20,000 upon Execution of this Agreement

(b)    $350,000 upon Execution of the Deeds;

(c)    $30,000 upon commencement of production of the [SRBM Project], following a three month commissioning and trial program.

93    Clause 2.2 provides for an offset in a certain amount against the first Base Royalty payment. The term “Traditional Owners” is defined as follows:

94    Mr Woosup and Ms Tamwoy also entered into an agreement on or about 20 January 2014 with the State of Queensland and Gulf pursuant to s 31 of the Act which took effect from 20 January 2014 being the “Deeds” contemplated by cl 2.1(b) of the Ancillary agreement. The term “Deed” is defined by cl 1.1 of the Ancillary agreement as “any deed for the addition of the mineral bauxite to ML40082, ML40069 and ML6025 and the grant of MDL425, MDL423, EPM18242 and EPM18384 pursuant to section 31(1)(b) [of the Act], to be executed between the State, the Registered Claimants and [Gulf] at some time in the future and to which this agreement will be a schedule”.

95    As earlier mentioned, the proceeding as originally filed, joined Gulf and the State of Queensland as the third and fourth respondents. The applicants and Gulf and the State of Queensland sought and obtained an order for the dismissal of the proceeding as against the third and fourth respondents on 9 December 2016. That left as the remaining questions in controversy, the fiduciary duty claims of the applicants against Mr Woosup and Ms Tamwoy.

The fiduciary obligations

96    In accepting a role (as a member of the Ankamuthi People), of acting as persons constituting the Ankamuthi applicant so as to make the native title claim for the native title claim group, Mr Woosup and Ms Tamwoy accepted and undertook to act for and on behalf of the members of the claim group in the exercise of any right, power or discretion affecting the interests of the Ankamuthi native title claim group in either a legal sense or a practical sense. The principles which lead to that result in the context of the role of persons who constitute the applicant in a native title determination application are the essential principles which determine whether a person has accepted or assumed fiduciary obligations to another. The context in the case of Mr Woosup and Ms Tamwoy, in accepting and undertaking to act as persons constituting the applicant, is the relevant context but the principles to be applied in determining whether they owed fiduciary obligations to the native title claim group are the same principles determined in our jurisprudence for deciding whether a person has, in all the circumstances, assumed particular fiduciary obligations to another.

97    In Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141, the Full Court (Dowsett, Greenwood and White JJ) considered the question of whether particular parties owed fiduciary obligations to another. In determining that question, the Court analysed the principles to be applied, within the relevant factual matrix, in answering that question. Greenwood J (White J agreeing) identified the principles to be applied. Dowsett J differed as to the application of the principles to the facts in issue but did not depart from the expressions of principle of Greenwood J (and White J agreeing), although his Honour set out the relevant principles in his own terms.

98    The following principles identified by Greenwood J (White J agreeing) of relevance to the present proceedings are these.

236    … In developing his seminal analysis of the coherent body of law developed by Equity in identifying “certain and distinct” obligations which define their own “fiduciary” for their own respective purposes, Dr Finn expressed this observation in Fiduciary Obligations 1977 (described by Millett L.J. in the Court of Appeal in Bristol v Mothew at p 18 as “his classic work”), at p 2:

… [Equity] has evolved a series of self-contained obligations – obligations which are themselves certain and distinct, and which individually define their own “fiduciary” for their own respective purposes. These obligations attribute no large significance to the term used to describe the persons to whom each individually applies. In some instances he is referred to as a fiduciary: in others as a confidant. The term used is unimportant. It is not because a person is a “fiduciary” or a “confidant” that a rule applies to him. It is because a particular rule applies to him that he is a fiduciary or confidant for its purposes.

[original emphasis of the author]

237    The point of emphasis adopted by Dr Finn in the above passage is that a person to whom the relevant rule applies is a fiduciary for the purposes of the applied rule and not necessarily for all rules, as all rules might not apply although, plainly enough, more than one rule might apply to a person. The relevant rules, however, do not apply to a person by simply attaching a taxonomic label “fiduciary” to the person. In Bristol v Mothew, Millett L.J. at p 18 recognised the force of the point of principle identified by Dr Finn but detached it from the specific relativity of the relationship between the application of the particular rule to a person and the fiduciary relationship of trust and confidence thus arising simply for the purposes of the particular rule applied in all the relevant circumstances.

238    The matrix of fact and contextual circumstances will determine whether a relevant rule applies and if it does, the person will be a fiduciary for the purposes of the rule. Once a person is a fiduciary for the purposes of a relevant rule, remedies peculiar to the equitable jurisdiction apply which are primarily restitutionary or restorative rather than compensatory. The nature of the obligation will also determine the nature of the breach.

239    In Fiduciary Obligations 1977, Dr Finn took the approach at p 2 that particular obligations will be “imposed” upon particular persons in Equity because those persons might be carrying on particular activities which “require the law’s regulation”. In Bristol v Mothew, Millett L.J. observed, at p 18A-B, that the application of the relevant rule rendering a person a fiduciary of another for the purposes of the rule is a function of someone having “undertaken” to act “for or on behalf of another” in a particular matter in circumstances which give rise to a relationship of trust and confidence. These duties are “special to fiduciaries”: Millett L.J. at p 18A-B.

240    In Edelman J’s 2010 LQR Article, Edelman J expounds a thesis that the essential unifying theme emerging from the corpus of cases involving fiduciary duties is that the “scope of those obligations” depends upon the “scope of an express or implied undertaking”, that is, a “voluntary undertaking” of one to another. However, in that article, Edelman J expressly “does not enter the debate about which duties must be owed in a voluntary undertaking before a person can be said to be a ‘fiduciary’”: the 2010 LQR Article at p 316.

241    In the McPherson Articles, McPherson J describes the nature of the “undertaking” as either express, implied or inferred and cautions against the analytical sloppiness inherent in finding “constructive undertakings”: 72 ALJ 289; CLC Papers, Vol 5.4, Paper No. 2, p 2. McPherson J contends that the underlying explanation of “most of the decisions” is that the transaction in question is shown to be one in which “a person is expected to act in the interests of the other party”: an expectation we would now describe as reflecting an obligation derived from an undertaking, express or implied, by one to the other to so act, arising out of the forensic circumstances of the transaction between the relevant participants.

242    McPherson J put his view of the principle this way (72 ALJ 290; CLC Papers, Vol 5.4, Paper No. 2 at p 4):

Approaching the matter in this way is capable of explaining most of the decisions which have been vexing the minds of so many for so long. Solicitors, agents, company directors and employees are precluded from acting in their own interests from the moment they assume the conduct of another’s affairs, or a segment of those affairs. So also with an investment counsellor who advises me where to put my money. The question is one of degree. How far have I surrendered my affairs to the control of someone else?

243    In Hospital Products, Mason J at p 96 sought to “distil the essence or the characteristics” of a relationship which might be described as a “fiduciary relationship”.

244    That became necessary, “[b]ecause [a] distributor – manufacturer is not an established fiduciary relationship”: Mason J at p 96. His Honour observed at pp 96 and 97 that the “critical feature” of “accepted fiduciary relationships” is that a person (the fiduciary) “undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense” [emphasis added]. If that be so, the “relationship” between the parties is “therefore” one which gives the first person a “special opportunity” to exercise the power or discretion “to the detriment of that other person who is accordingly vulnerable to abuse by [the first person] of his position”: Mason J at p 97. Thus, the first person is understood to be a fiduciary of the second and the two stand in a “fiduciary relationship”. Although referred to as a relationship of “trust and confidence”, this “essence” or characterising “feature” so described by Mason J is “critical” to each such relationship: Mason J at pp 96 and 97.

245    A person agreeing or undertaking to act “for” or “on behalf of” or “in the interests of” another signifies that the fiduciary acts in a “representative” character in the exercise of “his responsibility”: Mason J at p 97. Mason J also observes at p 97 that it is “partly” because the first person’s exercise of the power or discretion “can adversely affect the interests” of the second person and also because the second person is “at the mercy of” the first person that the first person “comes under a duty” to exercise the power or discretion “in the interests of the person to whom the duty is owed”.

246    See also the observations of Gibbs CJ at pp 68-69 and 72; Dawson J at p 142 in Hospital Products.

…

248    In Hospital Products, Mason J made two further observations of importance.

249    The first concerns the co-existence of contractual and fiduciary relationships. Often, the existence of a basic contractual relationship provides “a foundation for the erection of a fiduciary relationship”: Mason J at p 97. In Hospital Products, Mason J was, of course, considering a bilateral contract between a manufacturer and a distributor. Where there is a contract, “it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties”: Mason J at p 97. Mason J also said this at p 97:

… The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.

[emphasis added]

…

251    The second is that although Hospital Products International Pty Ltd’s (“HPI”) capacity to make decisions and take action in some matters by reference to its own interests was inconsistent with the existence of a “general fiduciary relationship”, that circumstance did not “exclude the existence of a more limited fiduciary relationship for it is well settled that a person may be a fiduciary in some activities but not in others”: Mason J at p 98.

252    In Hospital Products, Mason J concluded that a limited fiduciary obligation sprang from the United States Surgical Corporation (“USSC”) having “entrusted” the Australian distributor, HPI, with the “protection, promotion and custodianship of its product goodwill in Australia”. This gave rise to USSC’s “vulnerability” to the distributor’s abuse of its position which enabled HPI (and its controller, Mr Blackman) to “take every opportunity to enrich themselves at USSC’s expense”: as explained by the High Court in John Alexander’s Clubs at [93].

…

258    In John Alexander’s Club, French CJ, Gummow, Hayne, Heydon and Kiefel JJ observed at [88] that phrases such as acting “for or on behalf of” and “in the interests of”, another person, must be understood “in a reasonably strict sense, lest the criterion they formulate becomes circular”. That caution follows because although, no doubt, undertaking to act in such a way is, as their Honours say, “inherent” in the position of a trustee administering a trust or a director participating in the control and management of a company (as two examples among other often recited “accepted fiduciary relationships” to use the phrase adopted by Mason J in Hospital Products at p 96) and although such an undertaking “may be found in the facts of a particular case” ad hoc, the task of isolating whether a person has undertaken to act for another especially in the context of a co-existing contract with a multiplicity of interests may be very difficult to determine.

…

261    In his UNSW 1989 Article, Dr Finn observes at p 85 that the received judicial wisdom is that it is “unwise” and perhaps “unhelpful” to attempt to provide a general answer to that most basic question: “when and why will a relationship be a fiduciary one?”. Dr Finn acknowledges that this may be prudent because a “useful jurisdiction should not be fettered” and the “perennially repeated observation” is that the “categories of fiduciary relationship are not closed”. Dr Finn observes, however, that, in the end, these observations are “an endorsement of uncertainty, not of understanding”.

262    Dr Finn adds this at p 85:

To the extent that judges of recent times have attempted to isolate general characteristics common to fiduciary relationships, they have focussed unevenly on two phenomena: first, the capacity (the power or discretion) one party has to affect the interests of the other and the corresponding vulnerability of that other; secondly, the reliance one party has upon the other because of the trust or confidence reposed in, or because of the influence or ascendancy enjoyed by, that other. The seeds, but only the seeds, of understanding are to be found here.

[emphasis added]

263    Dr Finn observes at p 87 that “[t]he critical matter is our evaluation [that is, on the facts] of the nature and purpose of a relationship (or of a part of it) and of the roles to be ascribed to one or both parties in it: whose interests is the relationship structured or contrived to serve and who in the relationship is responsible for serving them?”.

264    Dr Finn also says this at p 87:

The cases suggest that there are two distinct approaches to relationship characterisation, though they overlap in some factual contexts. They entail quite different inquiries. The first requires an analysis of the actual legal incidents [original emphasis] of a relationship itself in the setting in which it occurs and from this a conclusion is arrived at as to the purpose to be attributed to the relationship and to a party’s role in it. Thus the Restatement, Second, Agency, for example, asserts unequivocally of the principal and agent relationship that “an agent is a fiduciary with respect to matters within the scope of the agency”. The second approach focuses upon the presence (actual or presumed) of factual phenomena [original emphasis] in a relationship – an ascendancy or influence acquired, a dependence or reliance conceded, a trust or confidence given – and from these a conclusion is arrived at as to the character to be attributed to the relationship and as to the role of the ‘superior’ party in it.

[emphasis added]

265    Dr Finn also observes at p 93 that the fiduciary question is “essentially factual in character” and “if we entrust our interests to another person’s care, we should be entitled to expect that that other will act in our interests – at least where that other knows or has reason to know we are so doing and apparently accepts this”. Dr Finn also observes at p 93 that the difficulty in examining the “factual phenomena in relationships” lies in isolating whether “something more” is present in a relationship so as to characterise a person as a “fiduciary” of another. Although Dr Finn was examining these matters of “relationship characterisation” in the context of whether something more is present between parties to an existing contractual relationship so as to render one person the fiduciary of another, the quoted opinions expressed at pp 85, 87 and 93 go to matters of essential principle which determine the question of appropriate characterisation in all the circumstances of the essential forensic factual enquiry.

266    Reminiscent of some of the observations of Mason J in Hospital Products is this observation at p 93:

Though the raw materials of a fiduciary finding here are a trust and confidence reposed, a dependence or reliance conceded, or an ascendancy or influence acquired, the important matter is the character to be attributed to the role the alleged fiduciary has, or should be taken as having, in the circumstances of the relationship. It must so implicate that person in the conduct of the other’s affairs or so align him with the protection and promotion of that other’s interests (or their joint interest) that “foundation” exists for the fiduciary expectation: it must be such as could properly entitle that other to expect that he will act in that other’s interests (or their joint interests) – at least to the extent that he is practically enabled to affect those interests by action, recommendation, advice or otherwise.

[emphasis added]

267    In Tate v Williamson, Lord Chelmsford put the principle this way at p 61:

Whenever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be allowed to retain the advantage, although the transaction could not have been impeached if no such confidential relation had existed.

268    Dr Finn in The Fiduciary Principle 1989 took up the notion of abuse of confidence in this way at p 46:

The shape of any country’s fiduciary law will turn in the end on the preparedness of the courts of that country to acknowledge the role of Lord Chelmsford’s “abuse of confidence” in fiduciary law’s scheme of things … [T]he courts of Canada, Australia and New Zealand, at different paces, are according it explicit recognition. If the fiduciary principle is not to suffer artificial curtailment then, in the writer’s view, that recognition must be given. If, from whatever combination of factual conditions, the parties in their relationship are so circumstanced that one is reasonably entitled to expect that the other is acting or will act in his interests, then that person should be entitled, on bare grounds of public policy, to have that expectation protected.

This said, the critical question is when will parties be found to be so circumstanced? It is obviously not enough that one is in an ascendant position over another: such is the invariable prerequisite for the unconscionability principle. It is obviously not enough that one has the practical capacity to influence the other: representations are made, information is supplied (or not supplied) as of course with the object of, and in fact, influencing a host of contractual dealings. It is obviously not enough that the other party is in a position of vulnerability: such is the almost inevitable state in greater or lesser degree of all parties in contractual relationships. It is obviously not enough that some degree of trust and confidence are there: these are commonly placed in the skill, integrity, fairness and honesty of the other party in contractual dealings. It is obviously not enough that there is a dependence by one party upon the other: as the good faith cases illustrate, a party’s information needs can occasion this. Indeed elements of all of the above may be present in a dealing – and consumer transactions can illustrate this – without a relationship being in any way fiduciary.

[emphasis added]

269    What is it that renders one person a fiduciary of another and places the two of them in a fiduciary relationship? Dr Finn answers that question in this way at p 46:

What must be shown, in the writer’s view, is that the actual circumstances of a relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence or dependence doubtless will be of importance in making this out, but they will be important only to the extent that they evidence a relationship suggesting that entitlement. The critical matter in the end is the role that the alleged fiduciary has, or should be taken to have, in the relationship. It must so implicate that party in the other’s affairs or so align him with the protection or advancement of that other’s interests that foundation exists for the “fiduciary expectation”. Such a role may generate an actual expectation that the other’s interests are being served. This is commonly so with lawyers and investment advisers. But equally, the expectation may be a judicially prescribed one because the law itself ordains it to be that other’s entitlement. This may be so either because that party should, given the actual circumstances of the relationship, be accorded that entitlement irrespective of whether he had adverted to the matter or because the purpose of the relationship itself is perceived to be such that to allow disloyalty in it would be to jeopardise its perceived social utility.

[emphasis added]

99    In the passages quoted above, the following references have been adopted.

    Fiduciary Obligations, the Hon Dr P.D. Finn (“Dr Finn”), Law Book Company Limited, 1977 (“Fiduciary Obligations 1977”);

    The Fiduciary Principle, the Hon Dr P.D. Finn, an article contained within Equity, Fiduciaries and Trusts, Ed, T.G. Youdan, Carswell 1989, Law Book Company Limited (“The Fiduciary Principle 1989”);

    Contract and The Fiduciary Principle, the Hon Dr P.D. Finn, UNSW Law Journal, 1989, Vol 12, p 76 (the “UNSW 1989 Article”);

    Fiduciaries: Who Are They? the late the Hon Justice B.H. McPherson CBE (“McPherson J”), April 1998, 72 ALJ 288, being an edited version of a paper presented at the Vancouver 11th Commonwealth Law Conference (“CLC Papers”), Vol 5, complete presentation at 5.4 of the Conference papers, (the “McPherson Articles”);

    When Do Fiduciary Duties Arise? the Hon Justice Edelman, (2010) 126 LQR 302 (the “2010 LQR Article”);

    Bristol and West Building Society v Mothew [1998] Ch. 1 (Court of Appeal); (“Bristol v Mothew”);

    Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 (“Hospital Products”);

    John Alexander’s Clubs v White City (2010) 241 CLR 1 (“John Alexander’s Clubs”);

    Tate v Williamson (1866) 2 Ch. App. 55 (L.C.).

100    In determining whether Mr Woosup and Ms Tamwoy owed fiduciary obligations to the members of the Ankamuthi native title claim group, I apply all the considerations quoted at [98] of these reasons and, in particular, the observations at the quoted paragraphs at [244], [264]-[269], although all of the quoted observations are relevant to the question in issue. I have also had regard to these authorities: Re Wadi Wadi Peoples (1995) 124 FLR 110 at 124 per French J; Weribone v Queensland (No 2) (2013) 217 FCR 189 at [44]-[46] per Rares J; Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [58], [60]-[62] per Rares J. See also, as to matters of fundamental principle, the observations of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at pp 82 and 83. In Wik Peoples v Queensland (1996) 187 CLR 1 at 95, Brennan CJ considered submissions of the Wik People which asserted the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased area. Although that was the context of the discussion by Brennan CJ (which is not the present context), nevertheless the statement of general principle remains important. Brennan J said this at pp 95 and 96:

[In order to establish] … the existence of a fiduciary duty … [i]t is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed. The doing of the action or the performance of the function must be capable of affecting the interests of the beneficiary and the fiduciary must have so acted that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary (or, in the case of a partnership or joint venture, in the common interest of the beneficiary and fiduciary) to the exclusion of the interest of any other person or the separate interest of the beneficiary.

101    There can simply be no doubt that Mr Woosup and Ms Tamwoy, as persons constituting the applicant at any time, undertook or agreed to act for and on behalf of and in the interests of the native title claim group in the exercise of any and all powers, responsibilities and discretions affecting the interests of the claim group in a legal or practical sense. Mr Woosup and Ms Tamwoy, by reason of that role, enjoyed a special opportunity to exercise any such powers or discretions to the detriment of the claim group, and the claim group was, plainly enough, vulnerable to any abuse of position by Mr Woosup and Ms Tamwoy. Mr Woosup and Ms Tamwoy thus stood in a fiduciary relationship, often described as a relationship of “trust or confidence” with the members of the Ankamuthi native title claim group. The members of the Ankamuthi claim group were entitled to expect that Mr Woosup and Ms Tamwoy would act in the best interests of the claim group in exercising any of the functions, powers, responsibilities or discretions conferred upon an applicant.

102    The obligations or duties Mr Woosup and Ms Tamwoy owed to the members of the Ankamuthi native title claim group were these:

(a)    an obligation to not place themselves in a position where their private or personal interests came into conflict with the interests of the members of the Ankamuthi native title claim group: a conflict of interest and duty;

(b)    an obligation to not pursue and secure a personal benefit: a conflict of interest and duty;

(c)    an obligation to not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Ankamuthi native title claim group: a conflict of interest and duty;

(d)    an obligation to not place themselves in a position where their personal interests or duties conflicted with duties owed to the Ankamuthi native title claim group: a conflict of interest and duty, and a conflict of duty and duty.

103    Mr Woosup and Ms Tamwoy owed these duties and obligations to the Ankamuthi native title claim group throughout the entire period in which they were persons constituting the applicant whether at the outset or during the period in which they were, for a time, the only living persons constituting the applicant by reason of the death of Mr Silas Woosup, the death of Mr Arthur Woosup and the death of Mr Robert Dick, or during the period in which they were persons constituting the applicant together with the other persons who also became persons constituting the applicant as described earlier in these reasons. Mr Woosup and Ms Tamwoy were removed as persons constituting the applicant on 27 April 2016.

104    When Mr Woosup and Ms Tamwoy entered into the Ancillary agreement with Gulf on 4 December 2013, they owed the duties earlier described to the Ankamuthi native title claim group.

105    The applicants rely upon the affidavit of Mr Michael O’Brien.

106    Mr O’Brien is the Project Director at Metro Mining Limited (“Metro”). He says that on or about 8 February 2017, Metro acquired 100% ownership of Gulf and by reason of that acquisition, he has access to the books and records of Gulf (that entity’s name is now Gulf Alumina Pty Ltd). Mr O’Brien confirms that Gulf is a party to the Ancillary agreement in respect of the SRBM Project dated 4 December 2013. He says that Metro has now taken over the project. He also says that on or about 23 November 2016, Gulf entered into a second agreement with the Ankamuthi People and certain other parties which affirmed the Ancillary agreement (and made other changes to that agreement). Mr O’Brien says that on or about 22 March 2017, Gulf entered into a third agreement with the Ankamuthi People which also affirmed the Ancillary agreement and made some other changes. The compensation provisions under the agreements are confidential.

107    The applicants also rely upon the affidavits of Mark Gebadi, Tracey Ludwick, Catherine Salee, Nelson Stephen, Benjamin Tamwoy and Charles Woosup all filed on 17 January 2017.

108    Mr Gebadi says that he is an Ankamuthi man by descent and a traditional owner of Ankamuthi country. He says that he first became aware of the SRBM Project involving Gulf during negotiations with Metro in 2014. He says that he was a member of the negotiating committee for the Ankamuthi People in negotiations concerning Metro’s proposed projects on Ankamuthi country and during those meetings someone mentioned that Gulf had already commenced their project on Ankamuthi country. Mr Gebadi says that he wondered how Gulf had been able to do that without negotiating with Ankamuthi People in a way similar to the negotiations then underway with Metro. He says that although Mr Larry Woosup was at the meetings with Metro, he did not ask Mr Woosup about any arrangements with Gulf. Rather, he raised his concerns with a legal officer employed by the Cape York Land Council. Mr Gebadi says that he has been shown, by the solicitors for the applicants during the proceeding, a copy of the Ancillary agreement dated 4 December 2013 signed by Mr Woosup and Ms Tamwoy and Gulf. He says that he had “no previous knowledge of the agreement or negotiations for the agreement before it was signed”. He says that he did not know anything about any money paid under the agreement. He also says this at paras 6 and 7:

6.    When Ankamuthi People need to make a decision about something that will happen on Ankamuthi Country we hold a community authorisation meeting. There is a clear understanding that the negotiating committee does not have authority to make a decision until they go back to their people at an authorisation meeting. At that meeting the negotiating committee make[s] a presentation about the negotiations from start to finish, there is an open for discussion and people can ask questions, and then we see if there is a consensus.

7.    Similarly, if there is a decision to be made about what to do with payments from a mining company we would hold a community authorisation meeting, some options would be presented; everyone gets to have their say; and the people present will vote on the options.

109    Ms Tracey Ludwick says that she is an Ankamuthi woman and a traditional owner of Ankamuthi country. She says that she first heard about a possible agreement between Ankamuthi People and Gulf in 2013. She says that her brother (Harold Ludwick) understood that Gulf and Larry Woosup were “going to do a deal”. She says that her brother had been part of a negotiating team which had previously tried to negotiate an agreement with Gulf but failed to reach agreement. Ms Ludwick describes the decision-making process in this way at para 4 of her affidavit:

4.    There is a process which needs to be followed for Ankamuthi People to make an agreement with someone. The native title applicants will sit down with the other party and negotiate a deal, but before any final decision is taken the deal has to be presented to the Ankamuthi community in information sessions. After that, the whole Ankamuthi community needs to meet to discuss the deal and decide whether or not to proceed. According to our traditional law and custom, everyone needs to make the decision. No one person or family group has the authority to speak for the country the subject of the agreement. It needs to be a decision by all Ankamuthi People, which is everyone descended from the apical ancestors described in the Ankamuthi People #1 native title claim. This is why I did not think that Larry Woosup would sign an agreement with [Gulf] without coming back to us.

110    Ms Ludwick says that the next thing she knew about the agreement which Larry Woosup and Beverley Tamwoy had signed with Gulf was “last year” when Ms Shilo Villaflor of the Cape York Land Council telephoned Ms Ludwick and said that she wanted to talk to Ms Ludwick about “what had happened”. Ms Shilo Villaflor told her that a meeting with a lawyer was to be arranged. Prior to that conversation, Ms Ludwick did not know that any agreement had been signed. Ms Ludwick says that, at least to her knowledge to the date of her affidavit of 17 January 2017, Mr Woosup has not consulted with or given any explanation to the Ankamuthi People about the Ancillary agreement he signed with Gulf.

111    Ms Catherine Salee is an Ankamuthi woman and a traditional owner of Ankamuthi country. She says that she has been shown a copy of the Gulf agreement dated 4 December 2013. She says that she knew nothing of it until after it was signed. She says that neither Mr Woosup nor Ms Tamwoy spoke to her about the agreement before it was signed. Ms Salee describes the decision-making process in relation to entering into such an agreement. The elements of her explanation are similar to those given by Mr Gebadi and Ms Ludwick.

112    Mr Nelson Stephen is an Ankamuthi man and a traditional owner of Ankamuthi country. He says that he first became aware of the SRBM Project involving Gulf when it was proposed that he become one of the persons constituting the applicant in the Ankamuthi #1 native title claim. He says that, before that, he knew nothing about it and that neither Larry Woosup nor Beverley Tamwoy ever discussed it with him. He says that he has been shown a copy of the Gulf agreement of 4 December 2013. He says he did not know anything about any negotiations which led to that agreement and he did not know anything about the agreement at any time before, or at the time that it was signed. He too explains the decision-making process of the Ankamuthi People concerning such an agreement. Although more briefly put, he too says that meetings ought to have been convened about such a thing.

113    Mr Benjamin Tamwoy says that he is an Ankamuthi man, one of the persons constituting the applicant in QUD 6158 of 1998 and a member of the Ankamuthi native title claim group in that proceeding. He says that he has a senior role in the Ankamuthi community. He says that he talks to young people about culture. He says that if something like a new mine or project comes up for the community, he tries to get young people together and get them involved. He says that he is aware of the SRBM Project proposed by Gulf and first became aware of it about five or six years ago. There was some discussion about it in the Ankamuthi community. He says that he had heard that meetings were to be held about it and so he asked Larry Woosup about it. Mr Woosup said words to the effect: “We are having a meeting. We will let you know when we are finished meeting”. He says that Mr Woosup did not provide any further information to him about it. He puts his perception of it in this way: “He kept it behind closed doors”, so far as disclosure to him and as he understands it, the Ankamuthi People, is concerned. Mr Tamwoy says this at para 4 of his affidavit:

4.    Larry Woosup should have come back to the Ankamuthi People with information about what was happening. The traditional way of dealing with important things such as a mining agreement, is to bring all the Ankamuthi People together and talk about it. If we all agree, then ok. If we don’t agree, then nothing should happen. The decision should be made by all the Ankamuthi People. No one person or family group alone has the right to speak for any part of Ankamuthi country. It needs to be all of Ankamuthi.

114    Mr Tamwoy says that he has been shown a copy of the Gulf agreement of 4 December 2013. He says he knew nothing about it at the time it was signed and has only become aware of its contents in the course of these proceedings. He says there was no meeting of the Ankamuthi People to discuss and approve the Ancillary agreement before it was signed. He also says that neither Mr Woosup nor Ms Tamwoy mentioned anything to him about any payments contemplated by the Gulf agreement. He says no such payments had ever been discussed with him. He says that so far as he is aware, there has not been any community project or anything else which might benefit Ankamuthi People which has come from the Ancillary agreement. He says that he lives on Ankamuthi country and the Ankamuthi community is a small community. He says that everybody knows everybody and if something came up in regards to a project using benefits from the Ancillary agreement, he is sure that he would know about it. Mr Tamwoy says this at para 8:

8.    In my opinion Larry Woosup has not gone about this in the right way according to Ankamuthi tradition. He is a big man. He should have known. He should have let everybody know what was happening. I feel sorry for him, but he has not done the right thing. He needs to be responsible for what he has done.

115    Mr Charles Woosup is an Ankamuthi man. He was one of the persons constituting the applicant in the Ankamuthi People #1, QUD 6158 of 1998, native title claim. He is a member of the claim group. He says that a few years ago (although he cannot remember exactly when), he first became involved in the SRBM Project proposed by Gulf. He says there was a community meeting of Ankamuthi People held at Injinoo. He says that at that meeting, the Ankamuthi People chose a committee to negotiate with Gulf concerning the proposed mine and that he was a member of that committee “picked by the mob, along with Robbie Salee, Harold Ludwick, Larry Woosup and Beverley Tamwoy (“the negotiating committee”)”. The negotiating committee entered into negotiations with Gulf. The committee met representatives of Gulf a few times in Cairns and were supported by staff from the Cape York Land Council. Two meetings were held in Cairns. He says that the negotiating committee did not reach agreement with Gulf “and the whole thing went cold”. He says that there were no more meetings involving the negotiating committee. He says this at paras 4 to 7 of his affidavit:

4.    … I heard nothing more about the project until people in Larry Woosup’s family started going down to Cairns to meetings, and later there were rumours in the Ankamuthi community that a deal had been made with [Gulf] by Larry Woosup.

5.    The people in Larry Woosup’s family who travelled to Cairns were not members of the negotiating committee. There had been no meeting of the Ankamuthi community to pick a different group from the negotiating committee previously chosen.

6.    Larry Woosup did not talk to me about any negotiations or deal entered into with [Gulf]. I fronted him one time at the end of a meeting about unrelated matters in Injinoo. I told him that he should tell everyone what was happening at the meetings at Cairns. He did not reply to me.

7.    Beverley Tamwoy has never spoken to me about the deal which she and Larry Woosup reached with [Gulf].

116    As to the Ancillary agreement of 4 December 2013, Mr Charles Woosup says that he did not see it or know about it before it was signed. He says that he is aware that it provides for Gulf to make prepayments of money to the traditional owners. He says that he knows nothing about any money paid under that agreement. He says that he has never received any such money and would not accept it if it was given to him. He says that “[i]t is for the clan and not for one part of the Woosup family”. As to the process of decision-making, he says this at para 8:

8.    For Ankamuthi People there is a proper way to make agreements and important decisions, and that involves calling a meeting of everybody. The mob selects a panel of people to meet with the other party. That panel or committee has the negotiations, and then when the negotiations are finished there is a big meeting of all Ankamuthi People to make the decision. The people on the committee do not make the decision. Everybody makes the decision. No one person or couple of people can make a decision for Ankamuthi People. You always have to take it back to the mob. That is where the decision is made.

117    The applicants also rely upon the affidavit of Mr Kevin Wone.

118    Mr Wone is an accountant. In June 2010, he was approached by Larry Woosup. Mr Woosup sought Mr Wone’s assistance as an accountant in relation to the SRBM Project negotiations with Gulf. He says that he has previously worked with native title groups in relation to negotiating and implementing compensation packages received from mining companies. Mr Wone says that on 11 June 2010 he wrote to Mr Woosup recommending that Mr Woosup seek legal advice about the structures available to enable the Ankamuthi People to receive funds and take advantages of opportunities which might be provided by the Gulf bauxite mine.

119    In that letter, Mr Wone noted that individual business plans would need to take account of the overall wishes of the Ankamuthi People and that meetings of the Ankamuthi People would need to be held to establish the structures necessary to secure opportunities as they become available: see Annexure “KW-2” to Mr Wone’s affidavit sworn 12 January 2017.

120    Mr Wone says that Mr Woosup appointed Chalk & Fitzgerald Lawyers to act for him in about July 2010.

121    Mr Wone says that he was present when a trust deed was executed to establish the “Ankamuthi Western Cape Community Trust”. The Trust Deed is dated 29 June 2010. The founder is a solicitor, Mr Bert Carman. The trustee is Mr Larry Woosup. The deed recites that the founder wishes to establish a perpetual charitable trust for the benefit of the Ankamuthi Western Cape Community. The principal purposes of the trust are to contribute to the maximum extent possible to sustainable community development for the Communities including economic development, community development, educational health and social development, cultural development and other purposes beneficial to the Communities. Clause 4.1 provides that no later than one calendar month immediately after the date of the deed, the trustee is to appoint, by deed in the form of the deed in Sch 1 to the trust deed, a steering committee comprised of five persons to represent the interests of the Ankamuthi Western Cape Community in respect of the trust. Clause 4.1 also provides that if the trustee does not make the appointment as required by cl 4.1, the trust will terminate at the end of the calendar month immediately after the date of the deed.

122    Mr Wone says that Mr Woosup contended that a steering committee had been appointed shortly after the execution of the Trust Deed. Mr Wone says that he has never seen an executed deed of appointment of a steering committee. Mr Wone sent a facsimile to Chalk & Fitzgerald advising that Mr Woosup had copies of the executed deed of appointment. That observation was made on the basis of Mr Woosup’s advice.

123    Mr Wone says that between 2010 and 2013, he attended some meetings with Gulf. Mr Larry Woosup, Mr Robert Dick (until he died) and occasionally Ms Beverley Tamwoy, as well as a lawyer from Chalk & Fitzgerald, were present at those meetings. Mr Wone has been shown a copy of the Ancillary agreement dated 4 December 2013. He says that he attended the meeting at which the agreement was signed in a serviced office in Cairns. The Gulf representative was Weidong Zhang. Mr Larry Woosup and Ms Tamwoy, Mr Woosup’s sister and some other people who Mr Wone understood to be members of Mr Woosup’s family were present.

124    Mr Wone says that in the months before the execution of the Ancillary agreement there was a major breakdown in the relationship between Mr Woosup and his lawyers, Chalk & Fitzgerald. Mr Wone observed some of these exchanges. Mr Wone says this at paras 19-22 and 27-32:

19.    During the time I acted for Mr Woosup, he frequently said to me that he was the only decision maker for the Ankamuthi people. He told me that he disagreed with certain research which had been conducted which broadened the number of people who could be considered part of the Native Title Claim Group. This was why he believed he was the only person who could and needed to make decisions for the Ankamuthi People.

20.    On many occasions I strongly cautioned Mr Woosup about making decisions on behalf of the Ankamuthi people, and frequently told him about matters which needed to go to a full community meeting for approval. As I was not a legal advisor, I did not advise in detail about this, but I understand that Chalk & Fitzgerald did so. …

21.    I did not hear from Mr Woosup for a while after the execution of the Ancillary agreement. I eventually made contact with Mr Woosup and he told me he was waiting for [Gulf] to release funds. …

22.    Mr Woosup rang me a little while after and he was very angry. He accused me of telling the Commonwealth Bank about the issues he had had with Chalk & Fitzgerald and that they had ceased to act for him. I told him that I had done nothing of the kind, which was true. I had never spoken with anyone at the Commonwealth Bank (CBA) and until that conversation with Mr Woosup I did not know anything about an account with [the] Commonwealth Bank.

…

27.    In or about July 2010, Mr Woosup arranged for a cheque account to be opened at [the] National Australia Bank in the name of the Ankamuthi Western Cape Community Trust. I was a signatory to that account, with account number 178100703. In around 2010, funds received from [Gulf] for meeting expenses were paid into that account and small expenses were paid from that account.

28.    At the time the Ancillary agreement was signed [Gulf] made a payment of $20,000 into the NAB cheque account

29.    Very shortly after the meeting at which the Ancillary agreement was executed I signed various cheques totalling approximately $20,000 to pay expenses of the meeting including catering … and cash payments to the attendees at the meeting as a sitting fee to cover their expenses.

30.    I recall that I presented the cheques at the bank, and gave the cash to Mr Woosup for him to distribute to the meeting attendees.

31.    I also received a payment of $3,960 by cheque to cover my expenses of attending the meeting.

32.    I have not operated the NAB trust account since that time.

125    Mr Wone says that on 24 May 2013, Chalk & Fitzgerald sent an email to Mr Woosup and Ms Tamwoy attaching a letter dated 24 May 2013 on the subject of “Ankamuthi and Gulf Alumina”. The email was copied to Mr Wone. Mr Wone exhibits the email and attached letter as Annexure “KW-5”. In the letter of 24 May 2013, the author, Mr Dominic Beckett, who says in the letter that he regards himself and Chalk & Fitzgerald as acting for “the Ankamuthi People as a whole” says this to Mr Woosup:

Advice about holding and applying payments – governance

…

You have advised us that (prior to instructing us to act on this matter) you have already established the Ankamuthi Western Cape Community Trust, and that you want payments to be made into the trust. In your email you have now asked us why we think it is necessary that we provide you with advice about this.

[The letter then sets out statements about the payment regime under the proposed agreement with Gulf including the basis for the calculation of royalties and other things.]

All of these monies are compensation to the Ankamuthi People for the [effect] of the proposed mining project on their collective native title.

In giving us instructions about this matter you are acting on behalf of – as agents for – the Ankamuthi People as a whole. By law, you owe strict duties to the Ankamuthi People.

We receive our instructions in relation to this matter from you on behalf of the whole Ankamuthi claim group. As legal advisers, we owe duties not just to you personally, but also to the claim group as a whole. We expect that we will be asked to attend the authorisation meeting for this agreement to stand up and advise all members of the group who attend.

In addition, you have previously instructed, and on that basis we have assured not only Cape York Land Council Aboriginal Corporation (and its advisers) but also the Federal Court, that the agreement being negotiated will be not only for the benefit of the native title claim group as it is presently defined, but also for the benefit of:

    any further people who may be added to the claim group if and when the claim is amended (and for that purpose we have been pursuing on your behalf access to all of the anthropological material commissioned by Cape York Land Council), and

    any further people who the Court may ultimately determine are common law native title holders.

Given these assurances, you are obliged to make sure that the agreement will in fact be for the benefit of this larger group.

[emphasis added]

126    The author of the letter then notes that under the Trust Deed, Mr Woosup had been appointed as sole trustee and was given full discretion to make payments out of the trust. The author also notes the provision about the appointment of a five member “Steering Committee”. In that context, the author said this:

It is not in the interests of either Larry or the native title holders that Larry is the sole trustee. We do not know whether a Steering Committee was ever appointed by deed. If it was not, then, according to the terms of the trust deed, the trust is terminated. Further we do not know whether any Steering Committee that was appointed then either appointed a new trustee or, in writing, extended Larry’s appointment. If the Committee did neither of these things, again, according to the trust deed, the trust has been terminated.

…

I hope that it is clear from all of the above why we believe it is important that we speak further about, and that we provide advice to you about, how the payments will be held and used.

We do not believe that we can properly discharge our duties to you and to the native title holders – and also to the Court – without doing so.

[emphasis added]

The prepayments under the Gulf Ancillary agreement

127    What then became of the prepayments Gulf was required to pay under the Gulf Ancillary agreement?

128    The answer is this. Gulf delivered to Mr Woosup two bank cheques each payable to the Ankamuthi Western Cape Community Trust of which Mr Woosup was the trustee. The trust was controlled by Mr Woosup. The first bank cheque is dated 28 November 2013 in an amount of $20,000. The second is dated 24 February 2014 in an amount of $95,000. Each bank cheque was sent by post by Gulf in an envelope marked in this way:

Ankamuthi Western Cape Community Trust

Attention Larry Woosup

136 Wilkinson Street

Manunda

CAIRNS QLD 4870

129    The amount of $20,000 was paid into a National Australia Bank (“NAB”) account on 6 December 2013 operated by Mr Woosup in the name of the Ankamuthi Western Cape Community Trust (which I will call the “NAB0703 Account”). The credit balance in that account prior to Mr Woosup depositing the bank cheque for $20,000 was $3.63.

130    The amount of $95,000 was paid into an account on 27 February 2014 operated by Mr Woosup in the name of the Ankamuthi Western Cape Community Trust at the Queensland Country Credit Union (which I will call the “QCCU931 Account”). The account seems to have been opened on 19 February 2014. The first entry is a debit to the account of $10.00 representing payment for five Credit Union membership shares. The next entry is the credit deposit of the bank cheque for $95,000.

131    As to the matters at [128] to [130] of these reasons, see the documents produced on subpoena and particularly Annexures “JR-2”, “JR-3” and JR-4” to the affidavit of Jason Roberts affirmed 31 March 2017.

132    As already mentioned, Chalk & Fitzgerald had acted for Mr Woosup and Ms Tamwoy in giving effect to their instructions to provide advice concerning the negotiation of the arrangements with Gulf and ultimately in concluding and attending to the execution of the agreement with Gulf. They did so on the footing that Mr Woosup and Ms Tamwoy were acting or purporting to act as persons constituting the applicant for the purposes of the Ankamuthi native title claim group and thus, as persons acting for and on behalf of the Ankamuthi People as described in the native title determination application.

133    As a result of non-payment by Mr Woosup and Ms Tamwoy of the professional fees and outlays payable to Chalk & Fitzgerald, that firm commenced proceedings in the Supreme Court of Queensland (CS 86 of 2014; Chalk v Larry Woosup and Beverley Tamwoy and [Gulf]) for the recovery of the outstanding fees and outlays. In the Supreme Court proceedings, an amount of $255,562.56 was paid into Court by Gulf by means of a bank cheque dated 31 March 2014: see Annexure “JR-2” to the affidavit of Jason Roberts, 31 March 2017.

134    On 25 July 2014, the Supreme Court ordered (Henry J; see copy order, Annexure “JR-6”) that the monies paid into Court be paid out of Court in the following way:

(a)    an amount of $150,000 to Chalk & Fitzgerald (being an amount actually payable to the plaintiff, Mr Chalk, no doubt carrying on professional practice as Chalk & Fitzgerald);

(b)    an amount of $75,000 to the Commonwealth Bank of Australia;

(c)    the balance (including accretions) to Mr Woosup and Ms Tamwoy.

135    As to the amounts at (a) and (b) at [134] of these reasons, those amounts total $225,000 of the amount of $255,562.56 paid into Court by Gulf by bank cheque leaving a balance (without accretions) of $30,562.56. With accretions the amount was $31,267.25. The amount of $31,267.25 was paid into the trust account of the solicitors then acting for Mr Woosup and Ms Tamwoy in the recovery proceedings (and otherwise), MacDonnells Law. Of that amount, $1,267.25 was paid to Mr Woosup and Ms Tamwoy. The remaining $30,000 was transferred from the trust account of that firm to the general account of the solicitors presumably in accordance with a trust account authority or otherwise in conformity with the legislation governing the operation of trust accounts of solicitors and presumably in payment of fees and outlays payable by Mr Woosup and Ms Tamwoy in acting for them.

136    Thus, the following amounts were received into the control of Mr Woosup (either directly or into accounts operated by him in the name of the Ankamuthi Western Cape Community Trust) or paid to a party in discharge of obligations owed by Mr Woosup and Ms Tamwoy to that party:

(a)    an amount of $20,000 paid by Gulf by bank cheque dated 28 November 2013 made out to the Ankamuthi Western Cape Community Trust and paid into a NAB account on 6 December 2013 in the account name Ankamuthi Western Cape Community Trust, operated by Mr Larry Woosup;

(b)    an amount of $95,000 paid by Gulf by bank cheque dated 27 February 2014 made out to the Ankamuthi Western Cape Community Trust and paid into a Queensland Country Credit Union Account in the name of the Ankamuthi Western Cape Community Trust also operated by Mr Woosup;

(c)    an amount of $150,000 paid by Gulf by bank cheque into the Supreme Court of Queensland on 31 March 2014 (as part of the payment by Gulf of $255,562.56 into Court) and paid out of Court to Chalk & Fitzgerald;

(d)    an amount of $75,000 paid by Gulf into Court by bank cheque on 31 March 2014 (as part of the $255,562.56 payment) and paid out of Court into an account operated by Mr Woosup in the name of the Ankamuthi Western Cape Community Trust at the CBA on 7 August 2014;

(e)    an amount of $30,000 paid by Gulf into Court by bank cheque on 31 March 2014 (as part of the $255,562.56 payment) and paid out of Court to MacDonnells Law for and on behalf of Mr Woosup and Ms Tamwoy;

(f)    an amount of $1,267.25 paid from the trust account of MacDonnells Law on 12 January 2015 to the Ankamuthi Western Cape Community Trust (which amount formed part of the amount of $31,267.25 paid out of Court to MacDonnells Law for the benefit of Mr Woosup and Ms Tamwoy).

137    In all, these amounts described at [136] of these reasons constitute total payments of $371,267.25 paid either into the hands of Mr Woosup (by payment into accounts controlled and operated by him in the name of the Ankamuthi Western Cape Community Trust or to him personally) or payments made in discharge of obligations owed by Mr Woosup and Ms Tamwoy to Chalk & Fitzgerald and then to MacDonnells Law. Of that sum of $371,267.25, an amount of $370,562.56 was paid by Gulf. The remaining amount of $1,267.25 represents the accretions on Gulf’s payment into Court of $255,562.56.

138    After the bank cheque for $95,000 was deposited by Mr Woosup to the QCCU931 Account, the balance of the account was $94,990 having regard to the $10 debit for payment of five shares to open the account. Mr Woosup then made the following cash withdrawals:

139    On 31 March 2014, there was an account keeping fee debited to the account with the result that the closing balance at 31 March 2014 was $13,182. Thus, between 4 March 2014 and 28 March 2014, Mr Woosup made cash withdrawals from the account of $81,800 (out of, in substance, the $95,000 paid by Gulf).

140    Between 1 April 2014 and 22 April 2014, the following cash withdrawals and automatic transfers to the National Australia Bank took place:

141    Thus, between 1 April 2014 and 22 April 2014, Mr Woosup made further cash withdrawals from the account in an amount of $11,680. In addition to that amount, two payments were made from the account to the NAB amounting to $1,500.

142    The data set out at [138] to [141] of these reasons is drawn from statements for the QCCU931 Account at Annexures “JR-4” and “JR-5” to the affidavit of Jason Roberts affirmed 31 March 2017 together with the documents produced by the Queensland Country Credit Union in response to the subpoena addressed to it.

143    As to transactions involving accounts at the Commonwealth Bank, the bank statements produced on subpoena show that an account was opened at the CBA branch at 76 Lake Street, Cairns in the name “Larry Joe Woosup as trustee for the Ankamuthi Western Cape Community Trust” on 28 January 2014. The account is Account No. 06 4804 13809188 (the “CBA Woosup Trust Account 188”). On 29 January 2014, there was a cash withdrawal of $50,000 at Cairns from that account and a further cash withdrawal at Cairns from that account of $50,000 on 31 January 2014. By 31 January 2014, the account was overdrawn by an amount of $100,160 with a temporary excess limit of $135,000.

144    Mr Woosup operates another account at the same branch of the CBA. The name of the account is “Larry Joe Woosup”. It is Account No. 06 4804 13165343 (the “CBA Woosup Personal Account 343”).

145    It is not clear what happened to the $50,000 cash withdrawal from the CBA Woosup Trust Account 188 on 29 January 2014. However, the $50,000 cash withdrawal from that account on 31 January 2014 was paid into the CBA Woosup Personal Account 343 on 31 January 2014.

146    As to the CBA Woosup Trust Account 188, the bank statement for the period 29 January 2014 to 1 August 2014 shows that it continued to be overdrawn in an amount of $100,160 (at 29 January 2014) to $120,401.35 (on 1 August 2014). On 7 August 2014, the amount of $75,000 was paid into the account as a result of the order of Henry J in the Supreme Court of Queensland on 25 July 2014 for payment out of Court of $75,000 to the Commonwealth Bank of Australia. That reduced the overdraft on the account to $45,401.35.

147    The transactions in the CBA Woosup Trust Account 188 in the period 29 January 2014 to 1 August 2014 also show that on 10 February 2014, Mr Woosup made a cash withdrawal from the CBA Woosup Trust Account 188 at Cairns of $10,000 and on the same day an amount of $10,000 was deposited into the CBA Woosup Personal Account 343 at Cairns. As to the total amounts of $50,000 and $10,000 withdrawn from the CBA Woosup Trust Account 188 and deposited into the CBA Woosup Personal Account 343 on 31 January 2014 and 10 February 2014 respectively, the bank statement for the CBA Woosup Personal Account 343 shows that from 31 January 2014 to 22 March 2014 (by which date the credit balance was reduced to $3.19), Mr Woosup made either cash withdrawals or payments to third parties which effectively exhausted the entire $60,000.

148    From 31 January 2014 to 22 March 2014, there are 42 such withdrawals or payments (excluding bank fees). It is not necessary to set out each and every one of those withdrawals or payments in these reasons. However, it is important to illustrate some typical examples of them. In doing so, I will set out the date of the particular transaction, the transaction details relevant to that event, the debit or credit and the balance at the relevant date. Because not all transactions have been set out in the schedule below (as it is not necessary to do so), the balance shown is the relevant balance at the particular transaction date.

149    The illustrative transactions are these:

150    The transaction details reflected in the bank statement show that on 31 January 2014 when the $50,000 credit was made to the account, the account balance was $0.76. The transactions show that Mr Woosup has exhausted all of the amount of $60,000 paid into the account (being withdrawals from the CBA Woosup Trust Account 188 and corresponding deposits into the CBA Woosup Personal Account 343). Those amounts were, in truth, monies paid by Gulf for and on behalf of the Ankamuthi native title claim group. The only other monies paid into the CBA Woosup Personal Account 343 in the period 31 January 2014 to 22 March 2014 were Mr Woosup’s pension amounts which in that period amounted to $3,229.27. Apart from those other credits to the account, there were two other credits amounting to $290. Thus, the transactions show that between 31 January 2014 and 22 March 2014, Mr Woosup fully expended (in effect, as the balance at 22 March 2014 was $3.19) his pension payments and the entirety of the $60,000 paid by Gulf for the benefit of the Ankamuthi native title claim group.

151    The source of the details showing the transactions is the documents produced by the CBA in response to the subpoena, as described earlier. Apart from the documents produced on subpoena showing all documents related to the accounts neither Mr Woosup nor Ms Tamwoy responded to the notice to admit facts or the notice to admit the authenticity of documents. Both notices were delivered to each respondent as earlier described.

152    I accept the evidence given by all of the deponents relied upon by the applicants.

153    Apart from accepting the evidence of the deponents relied upon by the applicants, I find as facts all of those matters of fact described in these reasons.

154    I also make the following findings.

(1)    Mr Woosup and Ms Tamwoy entered into the Gulf Ancillary agreement on 4 December 2013 without prior disclosure to the Ankamuthi native title claim group of the outcome of the negotiations they had been conducting with Gulf through Chalk & Fitzgerald. They also failed to disclose to the Ankamuthi native title claim group, prior to entering into the agreement, the terms of any proposed agreement with Gulf or a draft of a proposed agreement. In particular, they also failed to disclose to the Ankamuthi native title claim group, prior to entering into the agreement, the arrangements for the payment of royalties, prepayments and other benefits payable by Gulf under the agreement. They also failed to disclose to the Ankamuthi native title claim group prior to entering into the agreement, the rights they purported to confer upon Gulf in consideration of Gulf performing the terms of the agreement and, in particular, in consideration of Gulf paying the prepayments (as described earlier) and the royalty payments contemplated by the agreement.

(2)    By engaging in the conduct described at (1), Mr Woosup and Ms Tamwoy deprived the Ankamuthi native title claim group of the opportunity of considering any proposed agreement with Gulf at a meeting of the members of the Ankamuthi People, consistent with their cultural traditions.

(3)    Mr Woosup engaged in the conduct described at (1) and (2) above notwithstanding that he had been “strongly cautioned” by Mr Wone about making decisions on behalf of the Ankamuthi People and notwithstanding that he had been told by Mr Wone “frequently” about matters which needed to go to “a full community meeting for approval”.

(4)    Mr Woosup engaged in the conduct described at (1) and (2) notwithstanding that the lawyers for the Ankamuthi native title claim group, Chalk & Fitzgerald, had advised Mr Woosup in clear and strong terms that he, in undertaking discussions with Gulf or anyone else in relation to a proposed mining project, was acting for and on behalf of the Ankamuthi People as a whole and acting on behalf of the Ankamuthi native title claim group as a whole. In addition, he was told in clear terms, that Chalk & Fitzgerald expected that they would be asked to address the “authorisation meeting” of the Ankamuthi People about any proposed agreement.

(5)    Mr Woosup was also told that he owed his people “strict duties”.

(6)    In addition, Chalk & Fitzgerald expressed reservations about the Ankamuthi Western Cape Community Trust, whether the trust had been constituted properly, and how the payments made by Gulf would be “held and used”. As to all of these matters at (1) to (5), see the earlier discussion in these reasons and, in particular, the letter sent by Chalk & Fitzgerald dated 24 May 2013 to Mr Woosup for and on behalf of the Ankamuthi People as a whole and, in particular, the Ankamuthi native title claim group as a whole.

(7)    Having entered into the Ancillary agreement with Gulf on 4 December 2013, Mr Woosup and Ms Tamwoy did not then disclose to the Ankamuthi native title claim group the fact of the agreement or provide the Ankamuthi native title claim group with a copy of the agreement. Rather, representatives of the Ankamuthi native title claim group became aware of the terms of the agreement during the course of these proceedings.

(8)    At no time since entering into the Ancillary agreement with Gulf on 4 December 2013 has Mr Woosup disclosed to the Ankamuthi native title claim group details of the receipt of monies from Gulf or the way in which those monies have been applied and used by Mr Woosup.

(9)    Mr Woosup has appropriated to his own benefit all of those monies and has failed to deal with those monies for and on behalf of his people. He has personally used the monies paid by Gulf rather than applying those monies for the benefit of the Ankamuthi native title claim group. Mr Woosup has failed to recognise that the monies paid by Gulf are monies paid for and on behalf of his people, the Ankamuthi People as described at [4] of these reasons. Mr Woosup has treated his people’s money, benefits and compensation, as his own, and has entirely failed to account for the way in which it was used.

(10)    In conducting himself in this way, Mr Woosup has acted in breach of the fiduciary obligations he owed to his own people. He has preferred his own interests to their interests. Gulf paid an amount of $370,562.56 by bank cheques in discharge of their obligations under the Gulf agreement. The monies paid into Court resulted in accretions in a small amount. All of the monies paid by Gulf have been used and applied by Mr Woosup in furtherance of his own interests and in derogation and disregard of the interests of his people, the Ankamuthi native title claim group.

(11)    The monies paid by Gulf under the Ancillary agreement (by posting the two bank cheques of $20,000 and $95,000 to Mr Woosup) each payable to the Ankamuthi Western Cape Community Trust, were held on trust by him (whether in his own capacity or in his contended capacity as trustee of the Western Cape Community Trust) for and on behalf of the Ankamuthi native title claim group (as described at [4] of these reasons). Once banked, as to the $20,000 payment, into the National Australia Bank account in the name of the Ankamuthi Western Cape Community Trust on 6 December 2013 and, as to the $95,000 payment banked into the Queensland Country Credit Union account in the name of the Ankamuthi Western Cape Community Trust on 27 February 2014, the monies were held in those accounts (in either capacity in which Mr Woosup held the monies) on trust for the Ankamuthi native title claim group as described at [4] of these reasons, as beneficiaries.

(12)    Mr Woosup’s failure to disclose the receipt of the monies described at (11) was a breach of his fiduciary duties to the Ankamuthi native title claim group and a breach of trust.

(13)    Every day that Mr Woosup and Ms Tamwoy failed to fully disclose the terms of the Ancillary agreement with Gulf and the payment to Mr Woosup either personally or in his capacity as trustee of the Western Cape Community Trust (a trust controlled by him), of any benefits payable by Gulf under the agreement, constituted a continuing breach of duty owed to the Ankamuthi native title claim group by them.

(14)    The monies paid into Court by Gulf on 25 July 2014 of $255,562.56 were monies applied by Mr Woosup to his own use as earlier described in breach of duties owed to the Ankamuthi native title claim group and in breach of trust by applying the monies to his own use rather than for and on behalf of the Ankamuthi native title claim group.

(15)    Every transaction (exemplified by the transactions described in the schedules at [138], [140] and [149]) by which Mr Woosup applied the monies received by him from Gulf, to his own use, constituted a breach of fiduciary duty owed to the Ankamuthi native title claim group and a breach of trust by applying the monies to his own use rather than applying the monies for and on behalf of the Ankamuthi native title claim group.

155    No doubt, the circumstances described in these reasons overwhelmingly supported by the evidence of the applicants who have brought these representative proceedings under the Federal Court Rules 2011 (Cth) to protect the interests of the Ankamuthi People, and the findings reflected in these reasons at [152]-[154], are profoundly disappointing to the applicants, the Ankamuthi People and the Ankamuthi native title claim group as it was at the time the events took place.

156    As mentioned earlier in these reasons, the Court made a native title determination in QUD 6158 of 1998: see [3] to [12] of these reasons. The Prescribed Body Corporate (“PBC”) nominated on behalf of the Ankamuthi People in accordance with s 56(2)(a) of the Act to be the trustee of the native title for the Ankamuthi People was and is Seven Rivers Aboriginal Corporation (ICN 8522). The members of the Board of the PBC are Mr Richard Woosup, Ms Polly Woosup, Mr Mark Gebadi, Ms Dale Salee, Mr Robinson Ropeyard, Ms Jean Tamwoy and Mr Larry Woosup.

157    The royalty payments required to be paid by Gulf (and ultimately an obligation now to be discharged or complied with by Gulf through Metro Mining Limited; [106] of these reasons) under the Ancillary agreement (to the extent affirmed by the later agreements; [106] of these reasons) having regard to cls 5 and 6 of that agreement and Sch 2 to the agreement, are payments to be made to the “Relevant Ankamuthi Party”, as defined: [88] of these reasons. Since there has been a determination of native title in relation to the claim area described in the Ankamuthi native title determination application, any of the royalty payments contemplated by Sch 2 to the agreement are payments to be made to the “registered native title body corporate for that determination” (see the definition set out at [88] of these reasons) which is the PBC.

158    Mr Larry Woosup is a member of the Board of the PBC. He is also an employee of the PBC.

159    Having regard to Mr Woosup’s breaches of fiduciary duty as described in these reasons and his duties as a director of the PBC, it would be inconsistent with the interests of the Ankamuthi People for Mr Larry Woosup to exercise any right, power or authority in relation to payments to or from accounts established by the PBC (if any) for the proper receipt and recording of payments made by any third party (including Gulf or Metro) to or on behalf of the native title holders. Further, it would be inconsistent with the interests of the Ankamuthi People for Mr Larry Woosup to give directions to any third parties as to the way in which monies are to be paid, for or on behalf of the Ankamuthi People, or as to the accounts into which monies are to be paid for and on behalf of the Ankamuthi People. The role of the PBC is to act for and on behalf of the native title holders as a whole and each and every member of the Board must act in the discharge of their duties as directors in full recognition of Mr Woosup’s prior conduct which has operated to the detriment of his people in breach of fiduciary obligations he owed them.

160    The total amount paid to or for the benefit of Mr Woosup is $371,267.25 as described in these reasons (and, in particular, the matters set out at [128]-[137]). However, the applicants abandon any claim in relation to, in effect, the accretions and thus they confine their claim on behalf of the Ankamuthi People to recovery from Mr Woosup of an amount of $370,000.00.

161    By the well-settled doctrines of equity, a constructive trust arises whenever one party has obtained money which does not equitably belong to him and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it as, for example, when money has been paid by accident, mistake of fact, or fraud, or has been acquired through a breach of trust, or violation of fiduciary duty, and the like. To the extent that any authority is needed for such a fundamental proposition, see the early authoritative observations in Pomeroy’s Equity Jurisprudence, 5th Ed, Stephen W. Symons, Vol IV at para 1047. Accordingly, I propose to make a declaration that Mr Woosup held the benefits paid to him under the Gulf Ancillary agreement upon a constructive trust for and on behalf of the beneficiaries being the Ankamuthi native title claim group from the moment in time that he received any part of the benefits recognising that the notion of “received the benefits” has the meaning “whether received by him in his own capacity or in purported exercise of a power or capacity as trustee of the Ankamuthi Western Cape Community Trust and whether by bank cheque payable to the Ankamuthi Western Cape Community Trust or paid into the Supreme Court of Queensland”.

162    It may be that no part of the monies amounting to $370,000.00 remains in the hands or control of Mr Woosup and thus a question arises about whether a declaration that Mr Woosup held the monies on trust from the moment of receipt ought now be made. The remedy might not be thought to be proprietary but simply an obligation to personally account to the beneficiaries: Giumelli v Giumelli (1999) 196 CLR 101. However, it is not clear whether Mr Woosup has or still controls some part of the monies received from Gulf. Accordingly, it remains appropriate to make a declaration that he held the monies on a constructive trust from the moment in time that he received any part of the benefits. In reaching this view, I have had regard to the observations of Deane J in Muschinski v Dodds (1985) 160 CLR 583 at 614-616, the principles identified by the Full Court in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 196 at [509]-[510] and the discussions in the following materials: Constructive Trusts, R.P. Austin in Essays in Equity, Edited by the Hon P.D. Finn, Law Book Company Limited, 1985; Deconstructing constructive trusts in Australia, the Hon Keith Mason (2010) 4 Journal of Equity 98; and the discussion in Rationalising Constructive Trusts, Dr Ying Khai Liew, Hart Publishing, 2017. Sometimes a constructive trust arising in these circumstances is called a remedial constructive trust. However, the declaration recognises that the monies were held upon trust from the date of receipt of the monies to or for the benefit of Mr Woosup.

163    I propose to grant the following relief.

164    First, a declaration that Larry Woosup and Beverley Tamwoy (also known as Beverley Mamoose) breached the duties they owed to the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998 being a native title claim group as described at [4] of the reasons for judgment published today by entering into an agreement described as an “Ancillary agreement” with Gulf Alumina Limited without first obtaining the authority of the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998.

165    Second, a declaration that the financial benefits set out in the schedule to the declaration paid by Gulf Alumina Limited pursuant to the Ancillary agreement dated 4 December 2013 and received by Larry Woosup whether in his own capacity or in purported exercise of a capacity as trustee of the Ankamuthi Western Cape Community Trust were at all relevant times benefits held by Larry Woosup for and on behalf of the native title claim group for the Ankamuthi native title determination application QUD 6158 of 1998 being a native title claim group as described at [4] of the reasons published today.

166    Third, a declaration that as to the benefits described in Declaration 2, Mr Woosup held those benefits on a constructive trust for and on behalf of the Ankamuthi native title claim group (the “beneficiaries”) being the native title claim group described at [4] of the reasons for judgment published today, from the moment Mr Woosup received those benefits represented by each payment whether he received them by bank cheque in the way described or whether the monies were received from Gulf by payment of the monies into the Supreme Court of Queensland and then paid out in the way described in these reasons.

167    Fourth, an order that Larry Woosup account for the financial benefits derived by him or under his control identified in Declaration 2 and the schedule to Declaration 2, to the native title claim group for the Ankamuthi claim being a native title claim group as described at [4] of the reasons published today.

168    Fifth, an order that Larry Woosup pay to and for the benefit of the native title claim group being a native title claim group as described at [4] of the reasons published today an amount of $370,000 by paying that sum to Seven Rivers Aboriginal Corporation (ICN 8522).

169    Sixth, an order that Larry Woosup pay the monies contemplated by the above order by paying those monies into Court by 6 February 2018.

170    Seventh, Larry Woosup and Beverley Tamwoy pay the costs of the applicants of and incidental to these proceedings.

171    I propose to also make an order that the proceeding be adjourned to a date to be nominated by the Court after 6 February 2018.

172    Having regard to the findings made in these proceedings and the declarations and orders made in these proceedings, I am satisfied that there are strong reasons for inferring that should Mr Woosup be in a position where he can exercise power or control or has authority to exercise power or control over or in relation to any account established by the PBC with any bank or financial institution, Mr Woosup might well engage in conduct of effecting transactions on such an account by withdrawing monies to his own use or by applying monies to the payment of third parties for benefits accruing to him. The beneficiaries of any payments by Gulf are the Ankamuthi People as a whole as described at [4] of these reasons. Having regard to the observations of the Parliament of Australia in the Preamble to the Native Title Act 1993 (Cth) that Aboriginal peoples and Torres Strait Islanders have been progressively dispossessed of their lands; that this disposition occurred largely without compensation; that successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands; and that, as a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society, there is good reason for the Court to act to protect the interests of the beneficiaries of the constructive trust, that is to say, the Ankamuthi People as described at [4] of these reasons, by making an order, returnable when the proceeding is listed at a date after 6 February 2018, directing that Mr Woosup be prevented from exercising any power or authority to effect transactions on any account held by the PBC as trustee for the native title holders to which any monies are deposited by Gulf or any other party for and on behalf of the native title holders.

173    The jurisdiction in equity to do right in the interests of the beneficiaries is sufficiently broad that such an order can and ought to be made to protect the interests of the native title holders where there is a basis for believing that a person may act in breach of duty owed to the native title holders. The PBC acts as the trustee of the native title rights and interests for the native title holders. To the extent that the beneficiaries are potentially exposed to the adverse consequences of any conduct by Mr Woosup, by reason of his position within the PBC, which may provide him with an opportunity to act to the detriment of the native title holders, the jurisdiction in equity is sufficiently broad to enable the Court to protect the interests of the beneficiaries by making the order contemplated by [172] of these reasons, supported by the declarations made in relation to the prior conduct and in aid of those declarations. Moreover, in the exercise of the discretion, I am satisfied that such an order ought to be made without requiring the applicants as representatives for the purposes of the Federal Court Rules 2011 (Cth), to give an undertaking as to damages.

Associate:

Dated:    7 December 2017

SCHEDULE OF PARTIES