FEDERAL COURT OF AUSTRALIA

Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1560

ORDERS

THE COURT ORDERS THAT:

1.    Each of the steps and conduct set out in these orders is to be undertaken by the applicant and Mr Ned David, Mr Maluwap Nona and Ms Garagu Kanai, in consultation and working jointly with each other.

2.    Paragraph 1 does not prevent the applicant and Mr David, Mr Nona and Ms Kanai retaining, whether by themselves or their legal representatives, any third parties to assist them in taking the steps required by these orders, and does not prevent them consulting the TSRA in its capacity as a native title representative body.

3.    All factual investigations, including anthropological input, in relation to the identification of the composition of claim group members required for decision-making and their location be completed by 1 February 2018.

4.    The method of notification and all logistical arrangements required, including any necessary advice from counsel, particularly for those claim group members not located in the Torres Strait or Cairns who wish to attend, be agreed between the applicant and Mr David, Mr Nona and Ms Kanai by 15 February 2018.

5.    The authorisation process as a whole be permitted to include the use of social media, as agreed between the applicant and Mr David, Mr Nona and Ms Kanai.

6.    All other active parties be notified of the agreed process by 15 February 2018.

7.    Any concerns by any active party in relation to the agreed process be raised with the legal representatives of the applicant and Mr David, Mr Nona and Ms Kanai by 22 February 2018.

8.    Any revisions required to the agreed process be made by the applicant, Mr David, Mr Nona and Ms Kanai by 1 March 2018.

9.    All pre-authorisation steps, including notification for pre-authorisation information sessions, the preparation of material for pre-authorisation information sessions, logistics for pre-authorisation information sessions and the implementation of any pre-authorisation steps, be completed by 16 March 2018.

10.    All preparations for the authorisation meeting, including notification of the authorisation meeting, the preparation of materials and finalisation of logistics, be completed by 23 March 2018.

11.    The authorisation meeting be held, and a decision on authorisation made, by 29 March 2018.

12.    Each step in this process to be the subject of a joint report to the Court, in a form to be agreed in consultation with Registrar Fewings.

13.    Reserve the costs of and incidental to the case management hearing held on 18 December 2017 incurred by the applicant, the State, the Commonwealth, the Fishing Parties represented by Mr Gore, and Mr David, Mr Nona and Ms Kanai on the basis that the Court will give further consideration to whether it will, of its own motion and after hearing evidence and submissions:

(a)    make orders for costs against the members of the TSRA Board individually who are responsible for the conduct of the TSRA in its capacity as a native title representative body in relation to this proceeding; and/or alternatively

(b)    make orders for costs against officers or employees of the TSRA, to the extent they were acting beyond any authorisation given to them by members of the TSRA Board; and/or alternatively

(c)    make orders for costs against the TSRA in its capacity as a respondent to this proceeding.

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

REASONS FOR RULING

MORTIMER J:

1    These reasons will cover two topics: first, the reason I am making orders for a prescriptive process to be followed in the lead up to a s 66B application and second, why I foreshadow future consideration of costs orders against persons who are not parties to these proceedings, and, as an alternative, against the TSRA in its capacity as a respondent to this proceeding.

2    The necessity for a case management hearing (CMH) on 18 December 2017 arose from the series of events since the Directions made by the Court following the Thursday Island CMH of 20-22 November 2017. I set out the events on Thursday Island in Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1438 (Transcript Reasons). The background to this proceeding is set out in Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336 (Venue Reasons).

3    It is remarkable, and disappointing, that this is the fourth ruling or set of interlocutory reasons the Court has had to give in the space of approximately three months, and this is the third CMH, including the three day intensive CMH on Thursday Island. All in a proceeding which was well on track to one or more consent determinations.

4    The responsibility for this state of affairs lies solely with the TSRA, and the enormous amounts of public funds which have been expended by the Court and the parties (and, indeed, by the TSRA itself) since early 2017 are also the responsibility of the TSRA. If it had kept to the (appropriate) role it played in this proceeding until approximately April 2017, this native title claim would be close to a consent determination at least in relation to the Western Overlap area and, I am confident, negotiations wold have been advanced in the eastern area.

5    Instead, this proceeding has almost ground to a halt. That appears to be what the TSRA Board desires. Why that might be so remains unfathomable, when this proceeding is for the benefit of Torres Strait Islanders.

6    Following an intensive CMH on Thursday Island, and after several confidential case management sessions conducted by Registrar Fewings as part of the three-day hearing, the urgency of the need to reconstitute the applicant became apparent. That situation emerged through the evidence of Mr Akiba about how he did not speak for the Part B area, and the breakdown (through the actions of the TSRA) in the working arrangements with the relevant PBC Chairs which had been in place for several years when Gilkerson Legal were acting for the applicant.

7    Out of these case management sessions came what the Court understood to be a consensual position on the way forward. I made Directions on 22 November 2017 requiring a process for authorisation of a new applicant for the Part B Sea Claim to be completed by 29 March 2018, and for any application under s 66B of the Native Title Act 1993 (Cth) to be filed by 12 April 2018. I also directed the matter to proceed in case management before Registrar Fewings until the CMH to be listed in the week beginning 14 May 2018.

8    In making those Directions, I said to Senior Counsel for the Torres Strait Regional Authority (TSRA) towards the end of the CMH:

…this court will not allow your client, by its funding powers, to derail the progress of this proceeding when there [has] been a considerable effort to agree an approach that is to occur from now on. Now, I sincerely hope that I’m not going to hear anything but good news from now on but I want to make it plain that I’m not going to sit back and watch this proceedings derailed again by funding decisions.

9    Despite those remarks, and the consensual position reached, which on any view required the parties to make timely and proactive progress to achieve authorisation by the end of March 2018, at the time of this CMH on 18 December 2017 no real progress at all has been made in a month since the Thursday Island CMH.

10    Despite what I said to Senior Counsel for the TSRA, the lack of progress appears to stem from the TSRA’s attitude to funding the chosen legal representative for the three claim group member respondents, Mr Ned David, Mr Maluwap Nona and Ms Garagu Kanai. That legal representative is Mr Oliver Gilkerson, from Gilkerson Legal, the firm which was until around October 2017 acting for the applicant and working with the relevant PBC Chairs, including Mr Nona, Ms Kanai and Mr David. I will call Mr Nona, Ms Kanai and Mr David the three claim group member respondents.

11    It will be recalled I joined them, temporarily, so that there were some Torres Strait Island people who were parties to the proceeding who in fact had some kind of representative role in relation to the claim group members, and plainly were people who may hold native title in the claim area and could speak to some extent for claim group members, unlike Mr Akiba. Their various roles can be found at [10] and [27] of the Transcript Reasons.

12    Up until Friday 15 December 2017, no progress towards the funding of the legal representative for the three claim group member respondents had been made, despite the views expressed by the Court on this matter. On the afternoon of 15 December 2017, there appeared to have been a last minute change of tack by the TSRA in approving an amount of funds for the authorisation process, which appears to be highly unsatisfactory to all parties concerned. This occurred after the CMH for 18 December was fixed. I return to these events in more detail below.

13    Due to the lack of progress, the volume of correspondence copied to Registrar Fewings concerning funding, and other activities by the TSRA to which I refer below, Registrar Fewings listed the matter for a case management conference before her on 11 December 2017. Following that conference, Registrar Fewings recommended to me that a CMH was necessary to prevent the proceeding from derailing yet again. At that case management conference, Senior Counsel for the TSRA had informed Registrar Fewings that a funding decision would be made within 48 hours of the case management conference. That did not occur, and was part of the reason this CMH was listed.

14    This ruling is necessary to ensure that the Directions made on 22 November 2017 are complied with and achieve the necessary purpose of the applicant being properly authorised and constituted. Without that, this proceeding is in danger of being dismissed, or stayed, and all the hard work to date will be frustrated. It is also important to ensure that the positive direction achieved at the Thursday Island CMH is not lost.

15    It is important to remember that the real casualties of the conduct by the TSRA, which must be explicable by matters currently not known to the Court, are the majority of claim group members. They have been waiting many, many years to have their native title sea claim resolved, and they deserve not to have to wait much longer.

16    I turn now to set out the events which have led to this CMH being required.

Events leading up to this cmh

The last day of the Thursday Island CMH

17    On the last day of the Thursday Island CMH, I made the following Directions:

1.    A process for authorisation of a new applicant for the Part B Sea Claim QUD6040/2001 be completed by 29 March 2018.

2.    Any application under s 66B of the Native Title Act 1993 (Cth) be filed by 12 April 2018.

3.    In the event that such an application is filed, the person or persons who have brought the application file submissions in support of the application by 19 April 2018.

4.    Any party who wishes to be heard in relation to the s 66B application is to file submissions in reply by 3 May 2018.

5.    The matter be listed for a case management hearing and the hearing of any application filed pursuant to order 2 of these orders, in the week beginning 14 May 2018.

6.    There be liberty to apply.

7.    The matter is to continue in case management before Registrar Fewings until the case management hearing in the week beginning 14 May 2018.

18    As I set out in my Transcript Reasons, the process in getting to these Directions was a difficult one, and required a high level of cooperation from the parties, and which was generally forthcoming, although throughout the CMH there were points at which the TSRA set itself apart from the other parties. As I described at [32]-[34] of those Reasons, following a case management conference convened by Registrar Fewings, there was a high level of agreement for these Directions by all parties except the TSRA. Indeed, these Directions are largely the same as those proposed by the parties following that case management conference. After that conference, counsel for the State provided a report on behalf of all parties and said:

After an initial case management conference involving all parties we understand there was then a separate session involving the Indigenous respondents, Mr David, Mr Nona and Ms Kanai with the representative of the TSRA. We understand that was a productive session. And in a subsequent resumed case management conference involving all parties with that prior session as the background the parties have agreed that the following orders which I propose to the court will be appropriate orders to make. They are orders which are designed to ensure the undertaking of a process to authorise a new applicant for the Part B Seas Claim and orders… ensure that an appropriate application is then brought and heard and determined by the court to make an order. So I have, really, five orders that we would propose to the court.

(Emphasis added.)

19    The parties had agreed that these Directions were appropriate, against the backdrop of “productive” discussions between the claim group member respondents, and the representative of the TSRA, who was Mr Pedro Stephen, the Chair of the TSRA. In other words, at the level of one Torres Strait Islander to another (Mr Pedro Stephen to the claim group member respondents), there was cooperation and recognition of the need for this authorisation and s 66B process to occur before anything else could happen in this proceeding, now that it had been taken off course.

20    The following responses were received from the parties following the State’s submissions concerning the proposed orders:

HER HONOUR: All right. All right. And nothing else to say about the proposed orders?

MR ATHANASIOU: No, your Honour. The Commonwealth participated in the process and is happy with the outcome.

HER HONOUR: All right. Thank you. Ms Cameron.

MS CAMERON: Your Honour, we consent to the proposed orders. In relation to the possible hearing dates in Brisbane, that is fine and we would appear in person.

HER HONOUR: All right. Thank you. Mr Gore.

MR GORE: Your Honour, my clients accept the proposed wording of the orders.

HER HONOUR: All right. Thank you. Mr Bick.

MR BICK: Your Honour, the TSRA doesn’t consent to but doesn’t oppose the making of these orders.

21    Mr Bick then proposed what may have appeared as a minor amendment to one word of the proposed orders, but which turned out to reflect a much more significant turn of events, one which had the prospect of derailing the progress of this matter yet again. I dealt with this issue at [34]-[45] of the Transcript Reasons and do not propose to repeat what I said there.

22    At the end of the CMH, I said to Senior Counsel for the TSRA:

HER HONOUR: No. All right. Now, as a result of these orders, it’s clear that it’s going to be the three individual respondents together with Mr Akiba who are going to have the primary carriage of any section 66(b) application and they have to be properly funded. Now, do you have instructions to confirm that there will be adequate funding available from the TSRA for the three respondents’ legal representatives so that the 66(b) application can be properly progressed?

MR BICK: I don’t, your Honour. It’s an administrative matter for the TSRA but Mr Gilkerson made contact with the TSRA at lunch time by email and therefore I think it would be fair to say that the matter is in train and will be dealt with by the usual processes within the TSRA Native Title Unit by the persons who deal with such requests.

HER HONOUR: All right. Well, there are probably a number of messages that need to be made clear to your client, a number of which because you are, at the moment, the conduit for those, I have to direct them to you. But the first is that this court will not allow your client, by its funding powers, to derail the progress of this proceeding when there have been a considerable effort to agree an approach that is to occur from now on. Now, I sincerely hope that I’m not going to hear anything but good news from now on but I want to make it plain that I’m not going to sit back and watch this proceedings derailed again by funding decisions. There may not be much I can do about it. I might just be able to complain loudly but if that’s all I can do, that’s what I’m going to do. So I’m sure you will convey that back to your client.

MR BICK: Yes, the client will be made aware of your Honour’s remarks.

…

HER HONOUR: Good. Thank you very much. All right. And the last matter is also really by way of observation and it has got two components. I’m grateful, Mr Bick, for the way that you have conducted yourself and the way that your instructor has conducted yourself during this case management hearing. It has been entirely professional, as I would have expected. But I have to say that I have found your client’s role in this proceeding increasingly disturbing on a number of fronts and we now have an opportunity, through these orders and the progress that is intended to be made, for your client to reconsider its role in this proceeding because if there are any more examples of conduct which is disturbing at a number of levels, then the court might have to take steps that it would prefer not to take about your client’s role in this proceeding. Now, that is not a criticism of you and it’s not a criticism of your instructor, but we’ve all heard things over the last three days that have been disturbing and I really hope that, moving forward, we are going to move into a much more constructive, positive and cooperative phase that will see this claim group get its native title determination by consent sooner rather than later. That’s what I hope. Now, again, if you would be so good as to convey those remarks to your client, I would be grateful.

MR BICK: Yes. Certainly, your Honour.

23    The TSRA’s conduct since the CMH gives no cause for optimism that it intends to play a constructive role in this proceeding.

Events since the Thursday Island CMH and prior to the case management conference

24    From 24 November 2017, only two days after the Thursday Island CMH, correspondence commenced between Mr Oliver Gilkerson of Gilkerson Legal and Mr David Farrell of the TSRA. This correspondence is annexed to Mr Gilkerson’s affidavit affirmed on 14 December 2017.

25    Mr Gilkerson deposed in his affidavit that he was retained by Mr David, Mr Nona and Ms Kanai following a telephone call made shortly before midday on 22 November 2017. This was shortly after they were joined as respondents. On 22 November 2017, Mr Gilkerson sent an email to Mr Wayne See Kee, CEO of the TSRA, informing him that “We’ve been asked to again assist with legal representation.” Mr Gilkerson said:

It was suggested that I contact you directly to establish communications with the TSRA about how these and related requirements can be quickly addressed.

I’m happy to meet or discuss by telephone. Please let me know the best way forward.

26    I note that this is consistent with what Senior Counsel for the TSRA told the Court in the afternoon of 22 November 2017:

HER HONOUR: No. All right. Now, as a result of these orders, it’s clear that it’s going to be the three individual respondents together with Mr Akiba who are going to have the primary carriage of any section 66(b) application and they have to be properly funded. Now, do you have instructions to confirm that there will be adequate funding available from the TSRA for the three respondents’ legal representatives so that the 66(b) application can be properly progressed?

MR BICK: I don’t, your Honour. It’s an administrative matter for the TSRA but Mr Gilkerson made contact with the TSRA at lunch time by email and therefore I think it would be fair to say that the matter is in train and will be dealt with by the usual processes within the TSRA Native Title Unit by the persons who deal with such requests.

(Emphasis added.)

27    On 23 November 2017, Mr Gilkerson sent a further email to Mr See Kee. The correspondence indicated that Gilkerson Legal was “prepared to again provide legal assistance including with the authorisation process”.

28    On 24 November 2017, Mr See Kee responded to Mr Gilkerson saying:

I am aware of Mortimer J’s orders of 22 November 2017 and in particular her order that an authorisation process be conducted by 29 March 2018.

However, I also note that the order about authorisation was not addressed to any specific party in the proceedings. At present the TSRA has not decided what role, if any, it should take in the authorisation process.

The TSRA is aware of its Native Title Representative Body functions and in that respect its preference is to utilise its internal resources to facilitate and assist in such activities. Further the TSRA has its own legal representation in its capacity as a respondent to Sea Claim Part B.

I note your offer to provide legal assistance in the process of authorisation. However your email of yesterday confirms that you act neither for the applicant or the indigenous respondents joined to the proceedings at this week’s Case Management Hearing.

The TSRA is not sure of your proposed role and as to the capacity in which you are reporting back to the court, noting that you act for no party in the matter. We would welcome further clarification of your proposed role, and await your early advice in this regard.

Please note that the TSRA contact for this matter from this point on is the TSRA Native Title Office’s Principal Legal Officer, Cecilia O’Brien, whom I have cc’d into this email. Please feel free to contact Cecilia, should you have any further enquiries.

29    The disingenuousness of the contents of this correspondence may be seen at a number of places, including the reference to the order about authorisation not being directed to any party. It is inconceivable that the TSRA, properly advised by its legal representatives who attended the CMH (and numbered at least four, although only two formally appeared), could not have understood the intention of the orders was that the applicant and the claim group member respondents were to work co-operatively to undertake the authorisation process. That level of cooperation was evident by the end of the CMH, including most responsibly by Mr Akiba in his evidence who indicated he was committed to working with the three claim group members respondents, and was reflected in what counsel for the State said and which I have extracted at [18] above.

30    Further, given Mr Gilkerson’s earlier email to Mr See Kee, it is also disingenuous of Mr See Kee to suggest it was unclear for whom Mr Gilkerson acted.

31    Therefore, right from the start, almost immediately after the Thursday Island CMH, the TSRA was again playing an unproductive, unco-operative and negative role, quite counter to its representative body functions, and quite inappropriate for its (objectively) very minor role as a respondent in this proceeding. As I have noted earlier, although it was a respondent in the Part A claim, the TSRA played no active part at all – and that is in the context of the most actively litigated aspects of this sea claim. It did not even appear before Finn J in the long running trial: see [34] of the Transcript Reasons.

32    Mr Gilkerson responded to Mr See Kee’s email on 28 November 2017. It is worth setting out Mr Gilkerson’s response in full. Not only does it set out in detail his client’s position and the funding request, it makes a number of well-made points about the TSRA’s ongoing and inappropriate mixing of its roles as a respondent and as a representative body, including the role of Ms Cecilia O’Brien, the current Principal Legal Officer for the TSRA whose involvement in this proceeding has not, on the impression I have formed to date on the evidence, even been a constructive one:

Dear Mr See Kee

1.    My previous emails do not contain an offer but rather make a request for assistance under s203BB of the Native Title Act 1993 (Cth).

2.    I am communicating with you as CEO of the TSRA in its native title representative body capacity. The TSRA should be ensuring strict separation between the performance of its representative body functions and its role as a respondent in the proceedings.

3.    My enquiry is whether the TSRA, in the exercise of its representative body functions, will provide assistance of the kind referred to in section 203BB(1)(b)(i) and (v) of the Native Title Act 1993 (Cth). Specifically the assistance sought from the representative body is to facilitate the legal representation referred to in the following paragraph.

4.    There are two parties who jointly request that the TSRA assist by facilitating (funding), their legal representation in the proceedings:-

(a)    We have been instructed by Ned David, Maluwap Nona and Garagu Kanai to legally represent them as persons who may hold native title and as newly joined respondents in the proceedings. The legal representation will include the provision of legal assistance in making an application under s66B(1) of the Native Title Act 1993 for purposes of the order made by the Court on 22 November 2017.

(b)    Dillon Bowers Lawyers have been contacted by the applicant to legally represent him. Dillon Bowers Lawyers are seeking instructions from the applicant on terms which will ensure there is no conflict between them and the applicant’s interests, those of our clients’ and the instructions we hold from them or our role in formerly representing the applicant.

5.    Ourselves and, subject to instructions, Dillon Bowers Lawyers will be filing the necessary notices with the Court shortly to formalise our respective legal representation of the newly joined respondents and the applicant.

6.    Under s203BB(2), a representative body is prohibited from performing its assistance and facilitation functions in relation to a particular matter unless it is requested to do so. It is my understanding that, in this instance, the TSRA as representative body has not been requested to assist through the use of its own internal resources with either legal representation or any other aspect of the proposed s66B application, including the related aspect of authorisation.

7.    Indeed, our instructions are that the TSRA is specifically requested not to undertake anything for authorisation purposes other than facilitating the external representation.

8.    The TSRA’s separate role as a respondent to the proceedings with interests outside of its representative body functions, do not afford it authority to itself undertake the facilitation or assistance involved.

9.    Indeed, as the TSRA’s respondent party interests involve a conflict with its representative body functions, even if a request had been made for the TSRA to itself provide the assistance, it would be inappropriate for the TSRA to do so.

10.    Cecilia O’Brien has been providing instructions on the TSRA’s behalf to its external legal representatives in respect of the TSRA’s respondent party role. S203BA(2)(a) of the Native Title Act 1993 requires that a representative body maintain organisational structures and administrative processes in the performance of all its functions which promote the satisfactory representation of persons who may hold native title. A representative body must also ensure the structures and processes are operated in a fair manner, particularly regarding its decision-making.

11.    In view of this and the conflict of interest concern, it would not be appropriate that I communicate with Ms O’Brien about this particular matter.

12.    Please advise definitively by 5:00pm on Thursday, 30 November 2017, whether the TSRA approves the assistance request referred to in paragraphs 3 and 4.

33    On 30 November 2017, Mr Farrell of the TSRA sent a letter to Mr Gilkerson, although not on the TSRA letterhead. Relevantly, the letter said:

I note that you intend to represent the new respondents. However we have not yet been served with a Notice of Acting.

As such it might be premature to address the request for funding for legal representation in the proceeding until we are served with the notice. Once your role is clear TSRA will assess any request for funding in accordance with its usual protocols and procedures.

34    Once again, this insistence on formal steps before any level of cooperation ensued, in the circumstances, is disingenuous, given what occurred at the Thursday Island CMH. All relevant officers within the TSRA (such as Mr Farrell) can be fixed with knowledge of what occurred at that CMH, as I have set out above. If Mr Farrell was ignorant of what had occurred on Thursday Island, and what Senior Counsel for the TSRA had said, this simply illustrates a further breakdown of proper processes within the TSRA.

35    It is also difficult to know who the “we” is in this letter from Mr Farrell, referring to a Notice of Acting, which is a court document in this proceeding. Of course, the TSRA is a respondent to this proceeding, but not in its capacity as a native title representative body: at least, that is not how its role has been put to the Court. Rather, it is other functions the TSRA performs, especially in relation to fishing in the Torres Strait, which have been said to justify its participation as a respondent. As I have noted in earlier reasons, it is unclear whether those functions may put it into conflict with the interests of the native title claim group members to whom it has a series of statutory obligations as the native title representative body. The more disruption the TSRA causes in this proceeding, the more it might be inferred that there are other interests of the Board of the TSRA that might be driving its conduct. At present there is no evidence before the Court on which such an inference could be drawn, but as I repeat throughout these reasons, its unwillingness to assist the claim group members through the applicant and the three claim group member respondents is otherwise inexplicable.

36    On 1 December 2017, Mr Gilkerson formally filed a notice of acting on behalf of Mr David, Mr Nona and Ms Kanai, and sent a copy to Mr Farrell. Mr Gilkerson sent a further letter to Mr Farrell. Can I say that if part of the reason for the delay in Mr Gilkerson filing this notice was his apprehension that he would assume the obligations to the Court and the parties that flow from being a solicitor on the record without adequate funding, especially given the way his firm had been treated since April 2017, then not only was his position entirely understandable, any apprehensions he may have had have proven to be well-founded, given the subsequent conduct of the TSRA.

37     Relevantly, in relation to funding, Mr Gilkerson’s letter stated:

You also say that ‘these requests like that of your clients, when it is forthcoming, will be assessed in accordance with its usual protocols and procedures.’ Our clients have already made their assistance request to the CEO. If you consider that not to be the case, please advise. Please urgently provide us with a copy of the protocols and procedures you refer to.

The TSRA’s delay in deciding our clients’ assistance request is, we understand, contrary to representations made on behalf of the TSRA at the CMH. We will check this against the transcript when it is released.

In any event, it is clear that delay by the TSRA in approving our clients’ assistance request currently makes it impossible for them to proceed with the section 66B application process as we understand was envisaged at the CMH. Delays mean there is much diminished prospect of the timeframes set out in the Court's orders of 22 November 2017 being met.

Please advise the date by which of the TSRA will decide our clients’ assistance request.

(Emphasis in original.)

38    On 6 December 2017, Mr Gilkerson emailed Mr Farrell again, noting the absence of a response to his letter dated 1 December. Mr Gilkerson said:

We made the request for section 203BB assistance (funding) on behalf of the PBC Chair respondents on 22 November 2017. I have stressed that approval of the funding is both imperative and urgent in terms of the timeframes set out in the Court’s orders of 22 November 2017.

The TSRA’s delay in resolving the assistance request is frustrating the process, is unreasonable in the circumstances and is inconsistent with the outcomes from the case management hearing. It is adversely affecting the proceedings and inconsistent with the TSRA’s model litigant responsibilities and the overall administration of justice in the matter.

39    On Thursday 7 December 2017, Mr Besley sent a letter to Mr Gilkerson, in response to Mr Gilkerson’s email. I note Mr Besley is the solicitor on the Court’s record for the TSRA in its capacity as a respondent to the proceeding. It is unclear why Mr Besley wrote this letter, rather than Mr Farrell, or another officer within the TSRA. Mr Besley explained in oral submissions that he wrote it because Mr Farrell was away on Mer Island. That does not explain why another officer within the TSRA could not have attended to the letter. It does not explain why someone within the TSRA thought she or he could instruct Mr Besley to send it, which was quite inappropriate. He and his firm have nothing to do with the funding of the applicant and the three claim group member respondents, and for him to be corresponding with another solicitor about that solicitor’s funding from his client is highly inappropriate. These fundamental boundaries continue to elude those within the TSRA who have given these instructions.

40     The letter stated:

For TSRA to properly assess your request, it requires:-

•    a cost agreement;

•    an outline of the services which you propose to deliver;

•    details as to who within or outside your firm would perform the work; and

•    a brief description of the related tasks, actions and milestones.

41    On Sunday 10 December 2017 at 8.45pm (that is, the evening before the case management conference before Registrar Fewings was due to be convened), Mr Farrell sent an unsigned letter to Mr Gilkerson, noting that the information referred to in Mr Besley’s letter had not yet been provided. It further required details concerning how Mr Gilkerson sought to conduct the authorisation meeting:

We also request that in the event that you intend to be involved in the authorisation process that you detail the way in which you intend to conduct the authorisation process such that we might properly consider your assistance request.

…

The manner in which the authorisation processes is proposed to be conducted is a relevant consideration that the TSRA would place weight upon in considering any assistance application.

Furthermore, we note that when Deanna Cartledge of your firm was solicitor on the record for the applicant, from 7 August 2014 until late this year, that there were numerous Sea Claim Part B meetings each year, in which the need for an authorisation process was discussed. No doubt your firm has given considerable consideration to the authorisation process. Should you be instructed to be involved in or conduct this authorisation process, in light of the lengthy consideration your firm must have given the matter, could you provide detail of how you intend to conduct this process, so that the TSRA might properly consider your assistance application?

We further note that your clients rebuked the TSRA for the conduct of information sessions that, in part, notified common law native title holders of the orders of Mortimer J. and inter alia, the need for an authorisation process. Your clients were of the view that the TSRA was wasting money in the conduct of such sessions and that they were able and willing to conduct such sessions for free, including a mainland notification road show. Do you hold these instructions? This would be a relevant consideration in any assistance application.

42    The meetings to which Mr Farrell refers, organised by the TSRA in early December, are matters I set out at [55]-[67] below.

43    Mr Farrell’s letter goes on to list and enclose the “protocols and procedures concerning assistance applications”. These protocols are:

    Department of Finance, Commonwealth Procurement Rules 2017

    Attorney-General’s Legal Services Directions and Guidance Notes

    Department of Finance, Commonwealth Grants Rules and Guidelines 2017

    Department of the Prime Minister and Cabinet, Cost - Benefit Analysis 2016

    Attorney-General’s Department, Australian Administrative Law Policy Guide 2011

44    I pause here to note that it is not immediately clear how any of these documents are relevant to a request for funding made under s 203BB. By way of example, the Cost Benefit Analysis document enclosed in the letter provides:

The use of cost-benefit analysis (CBA) to assess regulatory proposals is an important tool in better decision making. A CBA involves a systematic evaluation of the impacts of a regulatory proposal, accounting for all the effects on the community and economy, not just the immediate or direct effects, financial effects or effects on one group. It emphasises, to the extent possible, valuing the gains and losses from a regulatory proposal in monetary terms.

45    It cannot be seriously suggested that the funding of the three claim group member respondents, has anything to do with a regulatory proposal. However, what can be inferred is that the TSRA was flooding Mr Gilkerson with documents, and attempting to make the process as formal, document intensive and complicated as it could.

46    In contrast to the ongoing funding delays and complications which have plagued Mr David, Mr Nona and Ms Kanai and their legal representative, Mr Akiba’s legal representative has had no difficulties whatsoever in obtaining funding. On 4 December 2017, Jeffrey Dillon of Dillon Bowers Lawyers filed a notice of acting on behalf of the applicant, Mr Akiba. Mr Dillon deposed in his affidavit sworn 14 December 2017 that he emailed Mr David Farrell of the TSRA on 4 December 2017 at 4.18pm with an interim costs agreement and a copy of the notice of acting. That agreement was executed and the funding request was confirmed by the TSRA a mere 28 minutes later, at 4.46pm.

47    That initial costs agreement included primarily the (considerable) costs of reading into the matter and attendance at the foreshadowed consultation sessions in Cairns, to which I return at [55] below.

48    On 7 December 2017, Mr Dillon sent an email to Mr Farrell, seeking confirmation that “reasonable funding is available going forward in relation to our acting for Mr Akiba in this matter”.

49    On 8 December 2017, Louisa Taylor Ahmat responded to Mr Dillon, saying:

Dear David

Cecilia has asked that I forward this on for your records. Please note we normally send a letter advising the outcome of the assistance request, however in this instance and given the urgency I attached the TSRA NTO internal form.

(Emphasis added.)

50    Attached to this email was an internal form completed by the Native Title Office of the TSRA approving expenditure of a maximum of $10,000 for work during the period 1 to 31 December 2017, with a separate request required for expenditure in 2018. A subsequent formal letter advising of the approval was sent by Cecilia O’Brien to Mr Bowers on 11 December 2017.

51    The contrast between Mr Akiba’s requests for, and success in obtaining, funding and that of Mr David, Mr Nona and Ms Kanai’s requests could not be starker.

52    And this, it is to be recalled, is in relation to a person who has very honestly and responsibly told the Court, and all the parties, now on numerous occasions, that he cannot speak for the Part B Sea Claim area, and who has accepted that the three claim group member respondents can do so. Yet he can rapidly secure funding while those claim group members who are respondents and who are able to speak for the claim area, cannot.

53    I note again it is Ms O’Brien who is in the middle of this conduct by the TSRA. The costs agreement for Dillon Bowers is signed by her on behalf of the TSRA. Yet Ms O’Brien has been at the forefront of the evidence adduced by, and the conduct of, the TSRA in this proceeding in its role as a respondent. It was Ms O’Brien who was out gathering evidence for the TSRA’s unsuccessful attempt to change the venue of the Thursday Island CMH. It was Ms O’Brien who filed a lengthy affidavit deposing to how the TSRA would establish internal “barriers” so that Mr Maxwell Duncan, a TSRA employee, could act for Mr Akiba while the TSRA pursued its separate role as a respondent to the proceeding. It does not appear that Ms O’Brien herself is respectful of any such barriers in the various roles she continues to play within the TSRA.

54    It remains unknown on the state of the evidence who within the TSRA is giving Ms O’Brien her instructions, bearing in mind as a legal officer she can only act on instructions.

55    In the middle of this obstructionist behaviour about funding, the TSRA announced publicly that it would hold a “Torres Strait Regional Seas Claim Consultation” in Cairns on 7 and 8 December 2017. It had not notified Registrar Fewings (who retained an ongoing case management role), nor the other parties, ahead of giving public notice. Once again, it acted unilaterally, but in what capacity, or on whose instructions, is unclear.

56    The notice, which is annexed to Mr Gilkerson’s affidavit of 14 December, is dated 28 November 2017 and said:

Notice of Meeting

Torres Strait Regional Seas Claim Consultation

Notice is given of a meeting to be held inviting traditional owners of Torres Strait regarding the following matters:

•    Discuss the developments in the Western Overlap and Eastern Overlaps to the Seas Claim over the past 18 years and in particular:

o    The 2010 Federal Court decision about native title at sea.

o    The November 2017 Federal Court order concerning the authorisation process.

•    Discuss some ways to resolve the Western Overlap and Eastern Overlap.

•    Get your feedback on options for a way forward and possible Authorisation process.

Details include 2 consultation meetings are as follows:

Light refreshments will be provided.

If there are any queries before the meeting, please contact the TSRA Native Title Office on 07 4069 0852.

Date of notice: 28 November 2017

57    As the content of the notice established, the meeting was to concern the very matters the applicant and the three claim group member respondents were to put in train. Yet this “consultation” was called unilaterally by the TSRA, and at short notice to the claim group members as a whole. It is difficult to see this as anything other than a usurpation of the role envisaged by the Court’s orders for the applicant and the three claim group member respondents.

58    Obviously those claim group members who were outside Cairns would have difficulty attending at such short notice, and at this time of year. The correspondence annexed to Mr Gilkerson’s affidavit indicated that he had asked questions to the TSRA concerning the consultation, but was not provided with a response. On 29 November 2017, Mr Gilkerson emailed Mr See Kee, saying:

Please advise the following: -

1.     Despite what was said at the case management hearing and what I have said in my email of 28 November 2017, does the TSRA intend to proceed with this meeting?

2.     If the TSRA intends to proceed, in exercise of what function and power does the TSRA purport to hold the meeting?

3.     Is the TSRA proposing to hold any similar meetings additional to the one in Cairns referred to in the advertisement? If so, please advise the locations and dates.

59    A further request for information was sent by Mr Gilkerson to Mr Farrell on 1 December 2017. On 6 December 2017, one day prior to that consultation, Mr Gilkerson copied Registrar Fewings into correspondence with the TSRA where Mr Gilkerson stated:

The TSRA has not responded to our queries about the information session/consultation meeting about the Sea Claim and the Court orders that it proposes to convene in Cairns tomorrow. In view of the TSRA’s lack of response, we will endeavour to facilitate the attendance by such of our clients as are available with the costs to be met out of the funding.

60    I consider it important to observe the clear contradiction between the TSRA’s decision to call, on short notice, a consultation regarding this proceeding to be held in Cairns, and the TSRA’s interlocutory application to change the venue of the CMH listed on Thursday Island. In its submissions in support of the interlocutory application to change the venue from Thursday Island to Mer, the TSRA submitted:

10.    According to Torres Strait Islander ailan kastom, “if you are talking about country you should be on country”. And to show the appropriate respect to elders past and present, and community leadership, you must be on country.

11.    Therefore, it is submitted that it is culturally appropriate and respectful that the matters the substance of the Part B Claim – and, by extension, the CMH and the 12 Oct Application – be heard on Torres Strait Islander country.

12.     Importantly, Thursday Island is not Torres Strait Islander country, but is Aboriginal Kaurareg country. Further, the Sea Claim B was made by and for the outer island peoples, and is not connected in any way with Thursday Island.

13.     Therefore, the evidence before the Court is that it is inappropriate that the CMH and the 12 Oct Application be heard on Thursday Island for the following reasons. First, as Thursday Island is not Torres Strait Islander country, it is not consistent with ailan kastom to discuss matters of country on Thursday Island.

14.     Second, because Thursday Island is Kaurareg Aboriginal country, it would be considered disrespectful by Torres Strait Islanders to talk about their country on Kaurareg traditional lands, without their permission. The evidence is that no permission has been sought or obtained to hold the hearing on Thursday Island.

(Footnotes omitted.)

61    In making these submissions, the TSRA relied on several affidavits, including an affidavit of Mr Eric Peter, a board member of the TSRA. Mr Peter said:

According to our ailan kastom if you are talking about country you should be on country. We islanders think we should do our business in our own backyard. When you do business you should begin by paying respect to your elders past and present, and pay respect to the community leadership such as Torres Strait Island Regional Council ‘TSIRC’ councillors (who are elected by the whole community), TSRA (which has an elected board with representatives elected by each Torres Strait community) and then the Prescribed Body Corporate ‘PBC’ Chairs (who are selected by some of the community). This can only be done on country. A welcome to country is an important mark of acknowledgment and respect. Torres Strait Islander kastom is always about respect, giving and sharing.

…

This is a matter of community concern as island business is being conducted off island away from the majority of traditional owners. If there is something to do with our land or waters it should be dealt with up here on the correct outer island. As the elected representatives of Torres Strait Islanders the Board of TSRA is committed to having island business discussed on-island where possible.

We, Torres Strait Islanders, all feel more comfortable on the outer islands these are our people, they are all family and we are all related to each other. As Portfolio for Native Title I try to go around and visit the outer island people, when I go on visits I always ask permission to pay respect to the elders and community leaders. This is the Torres Strait Islander way of doing business.

The Sea Claim B was made by and for the outer island people, it has nothing to do with Thursday Island.

…

Under our Act the TSRA also has to respect Aboriginal lore and custom. We do not want to disrespect the Kaurareg by talking about our country on their traditional lands, without their permission. Asking permission is a very important part of both Kaurareg and Torres Strait Islander custom. Not asking permission is considered bad pasin.

62    Although stronger descriptions could be employed, I will say that it is remarkable that the TSRA held cultural concerns over the Court conducting the CMH on Thursday Island, in circumstances where the parties were given more than two months’ notice of the CMH, and on an island which is relevant to this proceeding (see [118] of the Venue Reasons), and yet appears to have had no concern itself about holding a consultation on the Part B Sea Claim in Cairns, on Aboriginal country that has nothing to do with this proceeding, with just over one week’s notice.

63    The Cairns consultation occurred on 7 December 2017, with attendance by some claim group members. Mr Gilkerson deposed that Mr David and Ms Kanai attended the Cairns meeting, alongside members of the claim group, including elders, mostly being those who lived in Cairns.

64    Mr Gilkerson deposed that the TSRA’s information at the meeting was provided entirely by an external consultant, Mr Mark Annandale. Mr Annandale was the individual who had been retained by the TSRA to conduct its community information sessions, again unilaterally called and organised, between September and November 2017, on some of the islands in the Part B Sea Claim area, and which generated much opposition amongst some claim group members and PBC Chairs: see my Venue Reasons at [43], [47] and [96]. The evidence (as deposed to by Ms O’Brien) was he was paid almost $150,000 for these sessions. It is unclear whether he has been paid additional sums of the money for the Cairns consultation. The TSRA seems amply able to dispense with public funds to suit its own purposes, despite its insistence on Mr Gilkerson filling out as many forms as possible and complying with as many formal requirements as possible before it would even consider his funding application.

65    In Mr Dillon’s letter to the TSRA enclosing a funding agreement, annexed to his affidavit, there is reference to four meetings: two (Thursday 7 December at 10.00am and on Sunday 10 December 10.00am-12.00PM) at the Lotus Glen Correctional Centre; and two at the Colonial Club in Cairns on 7 December at 5.30pm-7.30pm and 8 December at 12pm-2pm. The evidence to which I refer appears to relate to the meetings at the Colonial Club on Cairns. There is no evidence about whether there were meetings at the Lotus Glen Correctional Centre, why they were held at that venue and who attended, if they were held.

66    Mr Gilkerson deposed however, that he was informed by Mr Seriako Stephen, the Chair of Ugar Kem Le Ged Zeuber Er Kep Le (Torres Strait Islanders) Corporation PBC from Ugar (Stephen) Island, that the planned two-day conference was cut short, and the session on 8 December 2017 was cancelled without notice and without explanation to the attendees. Mr Gilkerson deposed that he was informed that attempts to contact the TSRA were referred to the CEO, who was not available to take calls.

67    Mr Gilkerson deposed that some members of the claim group, using their own resources, secured the use of a meeting room at the meeting venue on the afternoon of 8 December 2017, and proceeded with the meeting themselves. A resolution was unanimously passed at that meeting, and is annexed to Mr Gilkerson’s affidavit. It is not clear from the evidence how many claim group members attended this afternoon session, however this is the text of the resolution exhibited to Mr Gilkerson’s affidavit:

Torres Strait Regional Sea Claim - Torres Strait Islander Claim Group Meeting

8/12/2017 – Cairns Colonial Club

RESOLVED that-

1.     TSI claim group members for the Torres Strait Regional Sea Claim deem it unfit, inappropriate and unacceptable that the TSRA and its consultant Mr Mark Annandale carry out any further information sessions or consultations about the claim with claim group members and direct that:

•    TSRA and Mr Mark Annandale cease doing so.

•    the claim group endorses and supports the applicant and PBC Chair respondents to take over this role and action the Federal Court orders on behalf of the TSI claim group members supported by the legal reps of their choice and GBK.

•    TSRA take no further action that will obstruct or hinder that work being done or risk the claim.

•    TSRA provide adequate funding for that work.

•    these claim group decisions be given to the Federal Court of Australia at the case management conference schedule for Monday, 11 December 2017 at 10:30am.

2.     TSI’s at this meeting call for Mr Eric Peters, TSRA Portfolio Member for Native Title, Mr John Ramsay, TSRA Program Manager Native Title, the TSRA Board and Mr Wayne See Kee TSRA CEO, give all necessary SUPPORT to the decisions made today in the best interests of all common law native title holders in the region and in particular Part B of the Torres Strait Regional Sea Claim.

Moved: Abigail Harry

Seconded: Rowena Ballio

Carried.

8/12/2017

68    It is in this context of the delay in making a funding decision, and the TSRA’s unilateral hosting of a contentious and apparently failed consultation session in Cairns, that the case management conference was convened by Registrar Fewings on 11 December 2017.

The case management conference, and events since

69    Mr Gilkerson deposed that at the case management conference, he provided Registrar Fewings with a summary of the events and issues in relation to his funding requests. He deposed that he also asked the TSRA’s legal representative to “definitively provide me with copies of the TSRA’s protocols and procedures for the purpose of assessing funding applications under section 203BB of the Native Title Act 1993.” That afternoon, Mr Gilkerson received an email from Mr Besley attaching a TSRA purchasing policy. Again, it is unclear why Mr Besley did not refer this request to Mr Farrell, but this reinforces the absence of any appropriate barriers in the way the TSRA is conducting itself. Mr Besley is, again, communicating on behalf of the TSRA about the funding approach the TSRA will take for another legal practitioner in the proceeding, a practitioner with whom Mr Besley will be dealing as this proceeding goes forward.

70    Mr Gilkerson considered that the TSRA purchasing policy “was clearly not a protocol or procedure for assessing applications under section 203BB and I therefore took it that the TSRA does not in fact have any such protocols and procedures”.

71    In the days between 11 December 2017 and the date of Mr Gilkerson’s affidavit, a number of emails and letters were exchanged between Mr Gilkerson and the TSRA, generally with Mr Farrell. Each of these pieces of correspondence is annexed to Mr Gilkerson’s affidavit.

72    On 12 December 2017, Mr Gilkerson emailed Mr Farrell, attaching a third party payer costs agreement “containing all of the information sought in the Just Us Lawyers letter”. Mr Gilkerson noted:

Mr Douglas Campbell QC for the TSRA advised the Court at the CMC yesterday, that the TSRA would make best endeavours to make a final decision about funding and the agreement within 24 hours of receiving the information and, at the most, within 48 hours.

73    On 13 December 2017, Mr Farrell responded to Mr Gilkerson’s email, advising him that:

This is not the document that was requested in our letter of 10 December 2017. We still await a copy of your signed Costs Agreement with your clients so that we might properly consider their application for assistance. Could you urgently provide a copy of same?

74    Notably, Mr Farrell threw in another hurdle to the funding decision:

In conducting the merits assessment a relevant consideration will be questions of any potential conflict of interest. In this regard we note that Ms Deanna Cartledge of your office is one of the identified work authors for the three Indigenous respondents. As you are aware, Ms Cartledge was previously solicitor on the record for the applicant.

Could you please, as a matter of urgency, identify your client’s interests such that we may consider whether there might be any potential conflict of interest with the applicant?

75    Given the TSRA’s own role and conduct, this was another remarkable statement. It was also another conscious attempt at delay, when it should have been as clear as it could be to Mr Farrell (and to the TSRA) that in the circumstances of this claim, where Mr Akiba had expressed a wish to work with the three claim group member respondents, and indeed until July 2017 they had all been working together, there could and would be no conflict of interest. Further, the TSRA had known since the CMH on 22 November 2017 that it was Mr Gilkerson who would be acting for these claim group member respondents, and had said nothing about conflict of interest. There is no evidence whether this assertion was Mr Farrell’s idea, or whether it came from another person or persons within the TSRA. The timing of this being raised is another clear example of somebody within the TSRA, or a number of people, adopting a strategy designed to continue to try to derail the conduct of this proceeding.

76    Mr Gilkerson responded on 13 December 2017 as follows:

1. Costs agreement - The letter from Just Us lawyers sent to me on the TSRA’s behalf on 7 December 2017 requested ‘a cost agreement’. Section 300 of the Legal Profession Act 2007 (Qld) (‘LPA’) defines a costs agreement as ‘an agreement about the payment of legal costs’. As the TSRA, not our client, is going to pay the costs, the costs agreement must be one between the TSRA and our firm.

77    Again, what is approaching hypocrisy is evident when one compares the first costs agreement submitted by Dillon Bowers. That statement involves no criticism of Dillon Bowers. However, the agreement is expressed to be an agreement between Dillon Bowers and the TSRA, which is identified as the client, although Mr Akiba is the client of Dillon Bowers.

78    Mr Gilkerson continued:

Conflict of Interest – The involvement of Deanna Cartledge in previously representing the applicant does not give rise to a conflict of interest or a conflict of duties. To the contrary, the interests of the applicant and our clients are aligned. Dillon Bowers Lawyers for the applicant and our firm have established arrangements to ensure consistency of interests and duties. Our clients, our firms and the counsel they have briefed will be fully working together on implementation of the Court’s orders of 22 November 2017. We are all prepared to work with the TSRA in the appropriate performance of its NTRB functions.

I note that the documents accompanying your letter are not in the nature of protocols and procedures for the purpose of assessing requests for funding under section 203BB of the Native Title Act 1993 (Cth). The TSRA is not procuring our services in this instance; we will be providing legal services directly to our clients. Our clients are seeking funding through the payment of their legal costs by the TSRA, being NTRB assistance of the kind provided for in s203BB.

79    While this battle for funding has been continuing, Dillon Bowers Lawyers has continued to receive prompt approvals for their funding requests, without any requests whatsoever for further information. On 14 December 2017, an additional $25,000 in funding was approved for Dillon Bowers Lawyers “for services relating to the Case Management Hearings until 31 December 2017”, following a request made on 13 December 2017. I infer that funding relates to the preparation for and attendance at the CMH today.

80    In other words, a little more than 28 minutes, but Dillon Bowers’ second funding application was approved in 24 hours. Again, Ms O’Brien is recorded as the person responsible for the matter.

81    On 14 December 2017, Mr Dillon submitted a further costs agreement making a further funding request to cover work required until 29 March 2018, and to cover the costs of Senior Counsel.

82    In contrast to the first agreement, this agreement was headed “Third Party Costs Agreement” and identifies the TSRA at the third party funder, and Mr Akiba as the client. No response had been received from the TSRA as at the time of filing of Mr Dillon’s affidavit.

83    After the filing of the affidavits by Mr Dillon and Mr Gilkerson on 14 December 2017, Mr Farrell sent two letters of significance to Mr Gilkerson on Friday 15 December 2017. These letters, and the further correspondence between Mr Gilkerson and Mr Farrell on 15 December, are annexed to an affidavit of Mr Gilkerson, affirmed that same day. Leave was granted for that affidavit to be filed at the case management hearing on 18 December 2017. The first letter, sent at 11.21am (Queensland time), raised further significant issues concerning the funding of Mr Gilkerson’s clients. It relevantly provided:

An initial assessment of the assistance request has been conducted in accordance with TSRA protocols and procedures.

The initial assessment has identified that your proposal for assistance is predicated on Gud A Baradharaw Kod Torres Strait Sea and Land Council Torres Strait lslander Corporation (GBK) conducting significant works as party of your proposed authorisation process.

No doubt you are aware of the decision of the entire TSRA Board at meeting 104 to no longer support GBK.

The TSRA remains the NTRB and will not be transitioning any functions to GBK. Any decision to support GBK is outside the scope of any administrative or financial delegation held by the Chief Executive Officer or organisational staff and is a matter for reconsideration of the entire TSRA Board. Accordingly your clients’ request for assistance cannot be processed until it is considered by the entire TSRA Board at the next periodic meeting.

In the alternative it is open to you to recast your clients’ request for assistance absent GBK such that it may be expeditiously considered.

84    Mr Ned David is the Chair of GBK. Mr David referred at several stages during the Thursday Island CMH to his view, and he contended the view of other claim group members (how many is unknown) that GBK should replace the TSRA as the native title representative body for the Torres Strait region. There is clearly an issue of some importance for claim group members.

85    In an apparent about-face, Mr Farrell then sent a second letter to Mr Gilkerson at 1.52pm (Queensland time) on the same day. In contrast with the delay suggested by the first letter (that funding would have to be considered by the entire TSRA Board at the next periodic meeting), this second letter stated that the TSRA

is committed to providing your clients with sufficient funding to give comply with the Court’s orders made on 22.11.2017.

86    The TSRA’s letter indicates the actions it considers are required for the authorisation process, as well as the estimates of the costs associated with each action. In total, the TSRA offered to provide Gilkerson Lawyers and Dillon Bowers Lawyers, jointly, $81,000 (inclusive of GST) to complete the authorisation process, such funding to be split between the law firms depending on the tasks to be completed by each firm. A letter in the same terms was sent to Dillon Bowers Lawyers.

87    It does not appear that Mr Gilkerson had responded to the first letter between 11.21am and 1.52pm. It is unclear what caused the sudden shift in attitude from the TSRA. According to an affidavit affirmed by Mr Besley of Just Us Lawyers on 15 December 2017, and filed in accordance with leave granted at the 18 December CMH, Mr Besley spoke to the PLO of the TSRA (whom I take to mean Cecilia O’Brien) and the native title project manager at 2.30pm (Queensland time) on 15 December 2017.

88    During that call he deposed that he “gave advice to the TSRA over what was required to authorise a s 66B application and the associated costs”, and was advised that Mr Farrell would write to Dillon Bowers Lawyers and Gilkerson Legal setting out the funding proposal. Mr Besley explained during the case management hearing that he had given advice about a “generic” s 66B and authorisation process.

89    This would appear to suggest that the sudden shift in attitude was as a result of the TSRA speaking to its external lawyer, who acts for it in its capacity as a respondent in the proceeding not in its capacity as the native title representative body for the region. However, the chronology of when Mr Besley deposes the call occurred, and when the second letter was sent, do not entirely support this as the explanation.

90    At 1.53pm, apparently in response to Mr Farrell’s first letter, Mr Gilkerson responded:

Your letter misconstrues GBK’s proposed involvement in several respects: –

1.    It is not proposed to be a ‘party of your proposed authorisation process’. Also, your reference to it ‘conducting significant works’, is not a fair characterisation.

2.    GBK is proposed as an external service provider. As stated in the costs agreement, the services it would provide involve facilitation, claim group communication, language translation, cultural advisory and related tasks in connection with the authorisation process.

3.    The provision of those services has nothing to do with matters relating to NTRB recognition or the transitioning of NTRB functions from the TSRA to GBK. The TSRA has itself engaged external service providers, such as Mr Mark Annandale, at significant cost to undertake things like information sessions. Some services could be more efficiently and cost effectively provided by Torres Strait Islanders, especially when it comes to some of the practicalities of the authorisation process. It would seem sensible that as much of the expenditure involved in the process be directed to Torres Strait Islanders if they can provide services of equivalent or better standard and at an equivalent or better cost.

4.    Note 3 in Annexure A of our costs agreement states that our clients’ seek to work cooperatively with the TSRA as the NTRB.

If for reasons of its choosing, the TSRA does not support GBK being an external service provider for aspects of the authorisation process, there are two options available:-

•    First, the same services with the same arrangements as proposed for GBK could be provided by Malu Lamar (Torres Strait Islanders) Corporation RNTBC. It is the registered native title body corporate for Part A of the Torres Strait Regional Seas Determination and is also well placed to provide the sort of services involved.

•    Second, if the TSRA objects to services being provided by either GBK or Malu Lamar, it can of course approve the funding and accept the costs agreement on a conditional basis – i.e. on condition that neither GBK or Malu Lamar is involved as a service provider.

Given the options available to the TSRA, there is no reason why our clients request for assistance cannot be processed now.

91    At 3.07pm, Mr Farrell responded briefly to Mr Gilkerson’s letter, in relation to Mr Gilkerson’s proposed alternative that the services proposed to be provided by GBK could instead be provided by Malu Lamar. Mr Farrell stated:

We note that Maluwap Nona, a Respondent in the proceedings is the Chair of Malu Lamar Corporation RNTBC and that Lui Ned David, another Respondent, is Chair of GBK.

Therefore, we believe it is prudent that neither organisation be an external service provider in this process.

92    This is yet another inexplicable objection erected by the TSRA. Mr Nona is a claim group member and, based on his role at the CMH on Thursday Island, I infer a well-respected leader. He chairs the very RNTBC that holds the native title for the Part A claim. It is difficult to think of a better organisation to assist in contacting claim group members and assisting in the organisation of necessary meetings and distribution of information.

93    Once again the TSRA displays breathtaking inconsistency with the whole thrust and asserted purpose of its application for change of venue, whereby it sought to emphasise the importance of Torres Strait Islanders being in control of processes affecting their country.

94    At 3.53pm, Mr Gilkerson responded to Mr Farrell’s second letter by email. Mr Gilkerson declined the funding proposed by the TSRA, saying:

At the case management conference on Monday, Mr Douglas Campbell QC for the TSRA agreed that it would not be possible to estimate the total cost of the s66B application and associated authorisation process and that the TSRA indeed did not expect a total costing.

Although, as Mr Campbell QC said, a total cost is impossible to determine, the cost estimate contained in your letter, in my opinion, falls far short of the costs likely to be involved in this matter. I have spoken with Mr Dillon this afternoon and he agrees.

Consequently your proposal is not accepted.

95    Without going into any detail at all, Mr Gilkerson’s contention about the inadequacy of the amount offered must be correct. The evidence shows that Dillon Bowers had sought, and been granted by the TSRA, a total of $35,000 to do no more than “read in” to the matter and attend a case management conference and a CMH.

96    The amount pales into insignificance against the earlier evidence of Ms O’Brien about how much Mr Annandale had been paid for the series of unilaterally organised meetings on some islands between September and November 2017. That sum was almost $150,000, and did not include any of the transport costs, which Ms O’Brien deposed cost over $36,500 for aircraft and helicopter charters.

97    In his affidavit affirmed on 15 December 2017, Mr Gilkerson deposed that he sent a copy of the TSRA’s funding proposal to Mr Peter Krebs, the predecessor to Cecilia O’Brien as the PLO of the TSRA. Mr Krebs apparently informed Mr Gilkerson that, although it was not possible to estimate the total cost of the authorisation process and the s 66B application, in his opinion, the costs estimates contained in the second letter are “manifestly inadequate”.

98    At the time of the case management hearing, the current funding situation remains unresolved, and the attitude of the TSRA towards funding Mr Gilkerson and his clients remains obstructionist to say the least.

The TSRA’s funding of legal representatives

99    Given this ongoing issue with funding legal representation for claim group members, I have examined the Court’s file in relation to the TSRA’s funding of barristers and solicitors since the start of 2017. In this year alone, the TSRA has apparently funded (at least) 14 different barristers, many of whom are Senior Counsel, and law firms, on behalf of itself and Mr Akiba, and in one instance, on behalf of one of its lawyers, Mr Maxwell Duncan. I note that the Senior Counsel who appeared on behalf of the TSRA at the recent case management conference appears to have been very recently briefed: that is apparent from Mr Dillon’s funding request to the TSRA. Apparently counsel was to be paid for reading Finn J’s judgment in the Part A Sea Claim.

100    The funding of these barristers and solicitors is apparent either in their appearances before the Court, or the appearance of their names on documents on the Court file. The following lawyers have been funded by the TSRA on behalf of itself, Mr Akiba or Mr Maxwell since the start of this year:

    Mr Glenn Newton QC, on behalf of the TSRA

    Mr Stephen Lloyd SC, on behalf of the TSRA

    Mr Peter Bick QC, on behalf of the TSRA

    Mr Douglas Campbell QC, on behalf of the TSRA

    Ms Bianca Kabel of counsel, on behalf of the TSRA

    Mr Graham Carter of counsel, on behalf of the TSRA

    Mr John Waters of counsel, on behalf of the TSRA

    Ms Kathryn Cochrane of counsel, on behalf of the TSRA

    Ms Heather Mack (barrister and solicitor), on behalf of the TSRA

    Mr Ted Besley and Mr Colin Hardie of Just Us Lawyers, on behalf of the TSRA

    Mr Ken Barlow QC, on behalf of the applicant

    Mr David Bowers and Mr Jeffrey Dillon of Dillon Bowers Lawyers, on behalf of the applicant

    Ms Deanna Cartledge of Gilkerson Legal, on behalf of the applicant

    Mr Jack Rush QC, on behalf of Mr Duncan in preparation for the Thursday Island CMH

101    To this long list can be added the revelation made by Mr Besley during the 18 December CMH, to the effect that the TSRA had sought its own legal advice from Senior Counsel about steps required for the authorisation process. It was not disclosed at the CMH whether this Senior Counsel was one listed on the list set out at [100] above, or whether it was a newly retained Senior Counsel. Mr Besley indicated he had no instructions in relation to who it was that requested the TSRA to obtain such advice, when it was requested, or how much it cost. Further, he did not disclose whether he instructed Senior Counsel, or whether some person within the TSRA did so. He did not disclose whether he had seen the advice.

102    This conduct by the TSRA is yet another example of its determination to act unilaterally and apparently in its own interests, without supporting the applicant and the claim group members and their legal representatives. It is no wonder there is evidence of lack of trust within the claim group for the TSRA.

103    This revelation also demonstrates the preparedness of some individuals within the TSRA to continue to spend significant amounts of public funds to further its own agenda and purposes (whatever those might be), while denying funding to claim group members.

104    The Court has no indication of the cost of retaining each of these barristers and solicitors which I have listed in [100] above, save for what was disclosed at the case management conference before Registrar Fewings and what has been disclosed in the affidavits filed by Mr Dillon and Mr Gilkerson. However, it might be borne in mind that Mr Bick QC, a Melbourne-based Senior Counsel, was retained to travel to Thursday Island and appear at the three-day hearing. This is not a criticism of counsel or the solicitors retained, but rather an illustration of how the TSRA apparently has been making funding decisions with significant cost implications on behalf of itself, its employee solicitor and (at times) Mr Akiba (who wishes to be relieved of his position in this proceeding), in contrast with its delay in making a decision to fund the claim group member respondents.

105    One of the notorious difficulties with changing lawyers during a proceeding is that the new lawyers need to be brought up to date, both on the nature of the proceeding and on its conduct to the point they are retained. The more changes, the more duplication, in this case at taxpayer expense.

106    In contrast, the three claim group member respondents have retained the firm with the most continuity, expertise and knowledge of the Part B Sea Claim, and it is that firm that cannot secure funding.

The present situation

107    Save for the one-day “consultation” in Cairns, which some claim group members were able to attend, and whatever occurred at the Lotus Glen Correctional Centre, if anything, plus the retaining of solicitors and counsel for the applicant and for the claim group member respondents (whose solicitor and counsel currently remain unfunded), it is apparent that little progress has been made on this matter since the Thursday Island CMH.

108    The purpose of the orders at the Thursday Island CMH was to put in place a program to ensure this proceeding gets back on track, following almost a year of distractions. As counsel for the State submitted on Thursday Island, and which submissions I accepted, the reason that no responsibility has been specified in the Directions for the authorisation process was because:

MS KIDSON: In relation to proposed order 1, your Honour, we accept this – it’s an order in slightly unusual terms in that it’s an order that something happened without actually allocating responsibility to any particular party or person for that to happen. Certainly the State’s concern is that, in the ordinary course, it would be appropriate to direct the applicant in the proceeding, take the necessary steps to ensure that that process is undertaken. Certainly the State is concerned about an order being made in those terms today – is that the applicant was not present today.

Was not legally represented, and, therefore, an uneasiness about the idea of an order in those terms being made in the circumstances. Nonetheless, given the fact that the Indigenous respondents, Mr David, Mr Nona and Ms Kanai, are parties at the moment, and, no doubt, in reality, will be having an active role in ensuring that process takes place we would submit that – or ask the court to make the orders in those terms, recognising that there is some awkwardness in not having a particular party being designated as a responsible party. And, in reality, the purpose of order 1 is really to ensure that order 2 takes place. The critical - - -

HER HONOUR: Yes.

MS KIDSON: - - - order is order 2.

HER HONOUR: Well, it’s also to put some timeframes around things, I suppose, isn’t it?

MS KIDSON: Yes. And it allows, effectively, a reporting timeframe as well, or a time by which – if that process hasn’t been completed then all parties know there are issues, potentially. But the critical timeframe is really – and the critical step in the proceeding is really order 2. It’s the application.

109    The purpose was plain for all to see. It would have been evident from the case management conference, the “productive session” held between the indigenous claim group respondents and Mr Stephen of the TSRA, and most certainly it would have been evident from my discussion with the parties during the case management hearing. This bears repeating because at least one party, the TSRA, appears to continue deliberately to ignore it.

110    At the end of the Thursday Island CMH, I had formed the view Mr Akiba was supportive of the need to change the constitution of the applicant, indeed was fully cognisant of how important that was, and that he acknowledged he had no role to play and others needed to play a role.

111    Let me refer to his own evidence towards the end of the CMH. In this extract, “Mr Nona” refers to Mr Bishop Nona, Mr Akiba’s son who acted as his interpreter during his evidence:

HER HONOUR: All right. And what does Mr Akiba think he should do?

MR NONA: All he thinks is that he should have another legal person.

HER HONOUR: All right. And is that what he’s going to do?

MR NONA: He wants that legal person because he is on the gateway. Everything is happening on Saibai.

HER HONOUR: All right. Can he explain that a bit more to me? I don’t quite understand that.

MR NONA: Because we’ve got illegal fishing happening on Saibai and that’s what he wants legal lawyers for.

HER HONOUR: All right. For Saibai business.

MR NONA: For Saibai business.

HER HONOUR: Is that right, Mr Akiba? For Saibai business?

MR NONA: Yes. That’s right.

HER HONOUR: What about the business for this claim?

MR NONA: Well, it has nothing to do with – all he wants is for Saibai.

HER HONOUR: Okay.

MR NONA: Yes. Nothing to do with this case.

HER HONOUR: All right. And what do you want to happen about this case, Mr Akiba? This claim for the seas for – not the northern part, not the Saibai part but for the part B claim. What do you want to happen for that?

MR NONA: I’m just telling Mr Akiba because he is just reiterating that he just wanted lawyer just for Saibai.

HER HONOUR: For Saibai.

MR NONA: Because this issues unfinished business.

HER HONOUR: Yes. Okay. Well, I understand that, Mr Akiba. And that’s – that’s for you. That’s your country. It’s your business. But for this part B country, which you have told me you don’t speak for that country, I’m asking you what you want to do about that claim – your – do you want to stay involved or not?

MR NONA: This claim is all right. Yes.

HER HONOUR: For this claim is all right. What does – can he – can you explain what you mean a little bit more? Tell me more, please, Mr Akiba.

MR NONA: He’s saying we’re one society.

MR AKIBA: Yes. We’re one.

MR NONA: What we decided yesterday ..... we go ahead.

HER HONOUR: Okay. So what we decided yesterday and you told the court yesterday – that’s what you want?

MR NONA: Yes.

HER HONOUR: Is that right?

MR AKIBA: Yes.

MR NONA: That’s right.

112    Mr Akiba did not speak during the case management hearing on 21 November 2017, however, at the start of that day, Mr Akiba was represented by his (then) lawyer Mr Duncan, who was at this point about to withdraw, since Mr Akiba had terminated his retainer. Mr Duncan said:

HER HONOUR: Right. Are you – subject to what you have said about the need to withdraw, are you able to tell the court anything about Mr Akiba’s view as to whether he should continue to be an applicant or to be an active applicant? Or is that not something you’re able to - - -

MR DUNCAN: No. No, that’s not something I’m instructed about, your Honour.

HER HONOUR: All right.

MR DUNCAN: All I can say with respect to that is that he said to me that he didn’t want to go against – because, you know, ..... he only speaks for the sea country in the top west and that, you know, that he does not speak for the country in the western and eastern overlaps, and that he will not – was not wanting to cause any trouble effectively is what he said.

113    Following Mr Duncan’s withdrawal as Mr Akiba’s lawyer, the Court was informed by Mr Akiba’s daughter, Ms Deidree Nona, that Mr Akiba wanted Mr Ned David to speak on his behalf. When asked by the Court what Mr Akiba wanted to relay, Mr David said:

MR DAVID: I think from hereon in, the main point is that we, as the collective group that we had in March and April, will be the group that instructs or authorises anything further to do with the overlaps from the eastern islands through the central islands, to the western islands which is for Part B of the sea claim.

114    According to Mr Gilkerson’s affidavit, Mr Akiba’s daughter, Ms Deidree Nona, approached Dillon Bowers Lawyers on or around 27 November 2017. Mr Akiba retained Jeffrey Dillon of Dillon Bowers Lawyers on 4 December 2017, funded by the TSRA.

115    Whether it was he personally who decided to retain Senior Counsel to attend a simple case management conference before Registrar Fewings, where all other parties (other than the TSRA) were appearing only by solicitors, is not apparent on the evidence. I acknowledge that Mr Dillon deposes that this was required because he could not attend the conference. I am not sure that explains the retention of senior as opposed to junior counsel, but the TSRA in its funding capacity did not appear to query this kind of expenditure at all. I note that David Bowers of Dillon Bowers Lawyers filed an affidavit in this proceeding on 16 November 2017, prior to the Thursday Island CMH, on behalf of Mr Akiba. According to his affidavit, Mr Bowers was introduced to Mr Akiba by Mr Duncan of the TSRA. Why Mr Bowers, or one of the other several lawyers listed on the funding application as employed by Dillon Bowers, could not attend the case management conference is not explained in the evidence.

116    I remain unconvinced that Mr Akiba’s personal position has altered from the way it was expressed on many occasions, and through himself and others, to the Court at the CMH: namely that he wants no further part in this proceeding, he wants to look after his island home of Saibai, and he wants to work with the three claim group member respondents to get new people in to constitute the applicant.

117    That position appears to be reflected in the willingness of Mr Akiba’s new solicitors, Dillon Bowers, to work together and co-operatively with Mr Gilkerson and the three claim group members towards authorisation meetings and a s 66B application. It must be said however, that simply based on current experience, knowledge and continuity, together with strong connections with the claim group members who are the right people for the Part B Sea Claim, that the lion’s share of the work will need to be done by Gilkerson Legal, and whatever community organisations they are able to work with. That is no more than plain common sense given the tortured history of this matter in six short months, but also taking into account and giving weight to the very considerable and productive work that had been done by Gilkerson Legal between 2014 and mid-2017.

118    As is apparent from these reasons, I have a level of misgiving about what is going on behind the scenes of this proceeding. The evidence to which I have referred indicates it is those “behind the scenes” matters which have provoked conduct that seems directed at neutering this Court’s ability to deal with this proceeding as its judicial functions require. It is also what is neutering the interests of the claim group members in having their native title claim, finally, progressed to a satisfactory resolution. That a native title representative body should be at the centre of, and the prime mover in, such a negative process is appalling.

119    The tragedy in all this was best summarised by Ms Kanai at the Thursday Island CMH:

MS KANAI: …Since 2014 it was my understanding that there was only one sole survivor being elder, Mr Akiba here, and he was the only sole survivor applicant for the Torres Strait – the original Torres Strait Sea Claim. So it was decided that in order for any instructions to be given to the court which was a decision collectively by all PBC chairs and including TSRA, the former principal legal officer, Mr Peter Krebs – Mr Peter Krebs that any decisions or instructions would be done collectively as a group. So all of the chairs would meet. We would have a – it was a land and sea to do with both land and sea together because we’ve heard today that Mr Akiba has stated and he has clearly stated through his interpreter that he will only speak for his country, and he definitely cannot speak for any sovereign owners, your Honour.

Part B of the sea claim, the western overlap, goes over Mualgal, Badulgal and Kaurareg overlap. At no point was I notified of the change of legal representative. I was never approached to have a change of legal representative, and Mr Akiba certainly does not speak for that part of the country. I’m disappointed that we’ve come to this stage, that we’re sitting here when we were so close to having the determination go through the court when, as we heard from my colleague and uncle, that it was so close. All we had to was the anthropological reports. And that was put to a halt by TSRA.

We heard senior counsel make – state that Gilkerson Legal made a sideshow, a distraction. It was definitely not caused by them. And I support my colleagues to ask that Gilkerson Legal be reinstated. The reason I support that too because when we were sitting here this morning, your Honour, and I heard the case for Waral and Ului, and there was a legal representative for Mura Badulgal, there was a legal representative for Kaurareg, but your Honour part of that claim is also Mualgal participation. We’ve been involved with the Federal Court mediation, but there was no legal representation for Mualgal.

That is very disappointing because TSRA are our NTRB but they could not appoint someone for – to represent my people. Do I have to stand here myself and represent my people? I shouldn’t have to because you’ve got a government service provider who should provide that service for us, and that is TSRA through the NTA office which is why I fully support that Gilkerson Legal be reinstated because Deanna Cartledge had been giving Mualgal information on the Waral and Ului claim as well even though she was not and is not on the record as being our legal.

You’ve also heard my colleagues speak about Gur A Baradharaw Kod. I fully support them and as do all chairs because when you talk about TSRA conflict of interest they are conflicted because they are a Commonwealth statutory body. It does not represent the sovereign people. It’s main interest is the Commonwealth. We’ve heard senior counsel talk about everything that TSRA does with the protected zone joint authority and all the rest of – and he made mention about 100 per cent traditional ownership, your Honour. It was a struggle to even get here.

We were informed by the Native Title Office when we were called in to come here that the PBC chairs had to actually call in, and that was a direction given by Ms O’Brien that they would only fly in those representatives who called. This is not all of the PBC chairs here because the others weren’t paid for. We’ve come here with no travel allowance, no sitting fees, and I’m sure everyone else here is getting paid those things. And they are our NTRB. They represent us. Your Honour, the only way for us to move forward is to have GBK instated as the rep body because nobody can look after your own unless it is your own. I’d also like to speak about confidentiality – breach of confidentiality.

…

…Your Honour, Mr David mentioned today this can be all solved today. It can be. We have been crying. Our people have been crying for so many years. Mabo has come and gone, and we’re still crying. It can be decided right now, your Honour.

120    My impression on Thursday Island was that Ms Kanai’s pleas had been heard, especially by Mr Pedro Stephen, the Chair of the TSRA, who participated in the case management conference with Registrar Fewings which produced the agreed outcomes.

121    It is to be hoped that in reproducing for all to read what Ms Kanai said, those within the TSRA with decision-making functions might pause to reconsider their current approach.

Steps towards the s 66B application

122    As I have said in my previous reasons (see [12], [17] and [167] of the Venue Reasons; [15]-[17] and [45] of the Transcript Reasons) the Court is now fully apprised of the fact that Mr Akiba is not capable of being a member of the applicant as he does not speak for the claim area. He does not wish to be one, and so far as the evidence and views I have heard is concerned, the claim group members, while paying him due respect, do not wish him to be a member of the applicant.

123    As I explained above, Mr Akiba was temporarily unrepresented when the Court’s directions were made at the end of the Thursday Island CMH. The three claim group member respondents and he had all agreed to work together, but as counsel for the State had observed in submissions, he had no legal representation and it would have been inappropriate for the Court to require him to take all the steps needed for the authorisation process and the s 66B application. That is why the orders were not directed at any party specifically.

124    I appreciate it is an unusual turn of events. That is because, in such situations of a breakdown within an applicant, the Court can usually rely on the legal representatives of the applicant, and/or alternatively the native title representative body, to act professionally and in the interests of the claim group members as a whole to take steps to rectify the situation.

125    Without being critical of the co-operative spirit shown by Dillon Bowers to date, it is difficult to rely solely on lawyers representing the applicant because they keep changing. In the short space of time since this matter was allocated to me for case management, the applicant has had three legal representatives, one of whom was an employee of the TSRA, as well as a period of time (from 21 November 2017 to 4 December 2017) where the applicant had no legal representative. There is no continuity, no relevant experience in this claim, and no background knowledge. Further, they are not acting for an individual who speaks for the Part B Sea Claim area.

126    The Court has no confidence in the TSRA. Since I have been involved in this matter it has failed on every occasion this matter has been before the Court to act constructively and positively towards advancing the obviously necessary reconstitution of the applicant. It has also failed in the steps it has taken in between Court hearings.

127    Although until about July this year, the legal flaw in the constitution of the applicant was being managed in a cooperative fashion by Gilkerson Legal through a consultation process that the TSRA had established and apparently approved, it would seem that a change of personnel in early 2017, with Ms O’Brien coming into the PLO role at the TSRA, and perhaps a change in the perspective of Board members (I do not know) caused the TSRA to take active steps to destroy that cooperative structure. It could do that because it makes the funding decisions, and because it has access to large sums of money to spend on its own interests and legal representation, without having to answer to anybody at the time those funds are spent. By use of these public funds it is able to take action that is inconsistent with the course this proceeding was on, and indeed has wholly disrupted it. The TSRA has, as far as I can see, abused its funding powers to a significant extent to attempt to control this proceeding for its own purposes, whatever those might be, in a way which is wholly inappropriate.

128    Therefore, so as to protect the position of the claim group members as much as possible, since the TSRA appears intent on not doing that, and to ensure, as much as the Court can, that the three claim group member respondents and their lawyers can work with Mr Akiba and his lawyers to advance the interests of the claim group members, it is necessary for the Court to take a much more interventionist and prescriptive role than would usually be the case. I hope this is a temporary situation.

129    It is necessary in this case, for the Court to order steps to be taken towards the s 66B application, and by whom they are to be taken. That will first require the authorisation process under s 251B to be completed. I am not aware of any previous situations in which a Court has made orders requiring the steps to be taken towards satisfaction of s 251B of the Native Title Act, however I consider below the authorities which are relevant to the parameters of s 251B.

130    In Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373, Reeves J considered the relevance of authorisation meetings at [29]-[32]:

29.    In order for resolution 12, or indeed any of the resolutions passed at the 19 March meeting, to be effective for the purpose of s 66B(1)(a)(iii) (condition 3), or s 66B(1)(b) (condition 5), that meeting must have been a validly convened and properly conducted meeting of the W & J claim group for the purposes of s 251B of the NTA. I should hasten to add that this is not to say that such a meeting is prescribed by s 251B. Plainly, it is not. In the first place, the expression ‘meeting’ does not appear anywhere in that section. Furthermore, it is undeniably the fact that a process of decision-making under the traditional laws and customs of a native title claim group as described in s 251B(a) can exist quite independently of such a meeting. However, if, for example, the members of a native title claim group consider it is desirable to affirm that such a traditional decision-making process exists, or if such a decision-making process is accepted not to exist, and the native title claim group wishes to agree on, and adopt, a decision-making process as provided under s 251B(b), a meeting of the claim group is usually the most practical and effective means to achieve these outcomes. Thus, the development of the practice of convening and conducting authorisation meetings under s 251B of the NTA.

30.    When such an authorisation meeting is convened, proper notice is essential to its validity. In this particular context, that means, among other things, that (Weribone at [40] and [41]):

… The notice must be sufficient to enable the persons to whom it is addressed, namely members or potential members of the native title claim group, to judge for themselves whether to attend the meeting and vote for or against a proposal or whether to leave the matter to be determined by the majority who do attend and vote at the meeting. …

… the proponent must give fair notice of the business to be dealt with at the meeting to all members of the claim group. The notice must be such as will fully inform the persons entitled to attend the meeting, so that they can make an informed decision whether or not to be present.

31.     It is also important to note that, while the authorisation that ensues from an authorisation meeting conducted for the purposes of s 251B must be that of the whole of the claim group concerned (see the authorities cited at [22] above), it is not necessary that the notice of the meeting must result in all the members of the claim group attending the meeting. Rather, it is necessary that all the members be offered a reasonable opportunity to decide whether to attend: Frank on behalf of the Mayala People v State of Western Australia (No 3) [2016] FCA 1255 at [11] per Barker J; Butterworth on behalf of the Wiri Core Country Claim v State of Queensland (No 2) [2014] FCA 590 at [13] per Collier J; and Jurruru People v State of Western Australia [2012] FCA 2 at [30]–[31] per Barker J. The primary purpose of the notice of an authorisation meeting for the purposes of ss 251B and 66B of the NTA, therefore, is to result in a resolution concerning the authorisation of the applicant – whether that be the original authorisation prior to the filing of a native title determination application, or a subsequent replacement authorisation under s 66B – that is both fairly representative of the views of the whole of the native title claim group on that authorisation issue and that constitutes the informed consent, or vote, of those present at the meeting: TJ v Western Australia (2015) 242 FCR 283; [2015] FCA 818 at [107] and Weribone at [39].

32.    Accordingly, the notice of an authorisation meeting must be expressed in a form, and promulgated in a manner, that is likely to result in all the members of the native title claim group being offered a reasonable opportunity to decide whether to attend the meeting and to participate in its deliberations. It must therefore alert those members to the fact the meeting has been called and to give them sufficient time to make arrangements to attend it, if they wish to. It must also give fair notice to the members of the native title claim group concerned of the business to be dealt with at the meeting so that they can make an informed decision whether, or not, to attend. Hence, where the notice relates to a meeting that is being called for the purposes of replacing an applicant, or certain members of an applicant, under s 66B, it must clearly state that that is the main purpose, or one of the main purposes, of the meeting.

(Emphasis in original.)

131    In the recent decision of Gomeroi People v Attorney General of New South Wales [2017] FCA 1464, Rangiah J set out some problems in the conduct of such authorisation meetings, at [48]-[53]:

48.     In some important respects, the notification and conduct of a claim group meeting is more problematic than other types of meetings commonly encountered by the courts, such as a general meeting of a company, or a club, or association. The problems include the following.

49.     Firstly, identification of all the members of the claim group, and therefore identification of the persons entitled to vote at an authorisation meeting, can be difficult. The members of a claim group are usually defined by reference to biological descent from named apical ancestors, and sometimes also by adoption by the biological descendants. This can create difficulties in identifying precisely who is within the claim group. Not all members of the claim group will necessarily be known to the organisers of the meeting or to one another. These matters can make notification of the whole of the claim group problematic. It can also lead to difficulties in determining who is eligible to vote at a claim group meeting.

50.     Secondly, where there is a meeting of a large number of people, the counting of votes can be difficult. It is usually impracticable to facilitate a secret ballot. The meeting venue, together with the number of attendees, and issues with mobility of elderly people, may not lend itself to the creation of any clear physical division between those in favour of a resolution and those against. The use of coloured wrist bands is often used to assist in identifying those eligible to vote and the counting of votes.

51.     Thirdly, there are administrative, record-keeping and logistical difficulties associated with a large claim group meeting. Such meetings often extend over more than one day and some people may attend on some days but not others. Some may arrive and leave at different times during a single day. Some people may not comply with instructions or requests, such as to sign attendance records, and that can be difficult to monitor.

52.     Fourthly, there is no established and fixed set of rules that must be adhered to in the conduct of an authorisation meeting. Where s 251B(b) of the Act applies, the decision-making is conducted in accordance with a process agreed to and adopted by the claim group at the meeting. The evolving nature of discussion and the exigencies of time can result in departures from the agenda and changes in procedure as the meeting progresses. These changes may be expressly, but more commonly tacitly, agreed.

53.     Fifthly, a meeting to consider the replacement of one applicant with another by its nature produces emotional responses, such that passionate views are expressed and tempers can overflow. The present case provides an example of such a meeting. That can make it difficult for the organisers of the meeting to ensure that order is kept and that the meeting is not unduly disrupted by one side or the other.

132    Returning to the specific context of this proceeding, in the Part A Sea Claim decision Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1, Finn J said at [915], in relation to the alternatives posed by paras (a) and (b) of s 251B:

I simply note in passing that these alternatives are ill-suited to accommodate a claim such as the present given the essentially local focus of the governance structures through which the Islanders conduct their affairs under their traditional laws and customs.

133    At [922], his Honour said:

Neither the Form 1 nor the accompanying affidavits make altogether clear which of the two possible authorisation procedures allowable under s 251B was being invoked, although the accompanying affidavits would seem to suggest at least aspects of a traditional decision-making process were being used, albeit in unusual circumstances.

134    His Honour added at [926]:

The process adopted doubtless drew upon traditional practices. The representatives, for example, were senior elders. Nonetheless, I cannot on the evidence say that the decision-making process was a traditional one or that it was an appropriate adaptation of a traditional process to meet a novel situation. It reflected no more than quite reasonable improvisation in the circumstances. Equally, I cannot say upon the evidence that, for s 251B(b) purposes, it was a process of decision-making agreed to, and adopted by, the persons in the native title claim group. At best one could infer a significant level of subsequent acquiescence in the process adopted. This said, it is difficult to envisage how a s 251B(b) process could be adopted effectively given the Islanders’ diaspora. I need hardly repeat the 2006 census figures quoted early in these reasons: see ‘The people’, above.

135    In Mr Gilkerson’s affidavit of 14 December 2017, he deposed that Mr Dillon, Mr Barlow QC, Ms Erin Longbottom of counsel and himself have conferred for the purpose of settling an outline of the process that may be appropriate to have undertaken to conduct an authorisation meeting in accordance with the Court’s Directions. That outline also includes the key milestones and schedule for completion of particular stages. I generally accept the outline of the process as appropriate. Mr Barlow QC for the applicant also helpfully took the Court through these steps in oral submissions at the case management hearing.

136    I have borne in mind the considerations outlined by Reeves J and Rangiah J, recalling Finn J’s comments in relation to this proceeding in particular. I have also taken into account the schedule set out by the legal representatives for Mr Akiba, Mr David, Mr Nona and Ms Kanai. Where necessary, I have added matters which I consider appropriate to ensure the process does not become mired in complications arising from the fact that claim group members are spread out over Australia. In this aspect, I enquired of the lawyers for the applicant and the three claim group member respondents whether it was proposed to have one authorisation meeting, bearing in mind (as Reeves J pointed out) a meeting is not necessarily the only way that authorisation can be given. Senior Counsel for the applicant indicated that this was subject to further investigation by the applicant and the claim group respondents, and would be subject to advice provided by their legal representatives.

137    I consider the following steps must be set out by the Court by way of orders:

    Each of the steps and conduct set out in these orders is to be undertaken by the applicant and Mr Ned David, Mr Maluwap Nona and Ms Garagu Kanai, in consultation and working jointly with each other.

    Paragraph 1 does not prevent the applicant and Mr David, Mr Nona and Ms Kanai retaining, whether by themselves or their legal representatives, any third parties to assist them in taking the steps required by these orders, and does not prevent them consulting the TSRA in its capacity as a native title representative body.

    All factual investigations, including anthropological input, in relation to the identification of the composition of claim group members required for decision-making and their location be completed by 1 February 2018.

    The method of notification and all logistical arrangements required, including any necessary advice from counsel, particularly for those claim group members not located in the Torres Strait or Cairns who wish to attend, be agreed between the applicant and Mr David, Mr Nona and Ms Kanai by 15 February 2018.

    The authorisation process as a whole be permitted to include the use of social media, as agreed between the applicant and Mr David, Mr Nona and Ms Kanai.

    All other active parties be notified of the agreed process by 15 February 2018.

    Any concerns by any active party in relation to the agreed process be raised with the legal representatives of the applicant and Mr David, Mr Nona and Ms Kanai by 22 February 2018.

    Any revisions required to the agreed process be made by the applicant, Mr David, Mr Nona and Ms Kanai by 1 March 2018.

    All pre-authorisation steps, including notification for pre-authorisation information sessions, the preparation of material for pre-authorisation information sessions, logistics for pre-authorisation information sessions and the implementation of any pre-authorisation steps, be completed by 16 March 2018.

    All preparations for the authorisation meeting, including notification of the authorisation meeting, the preparation of materials and finalisation of logistics, be completed by 23 March 2018.

    The authorisation meeting be held, and a decision on authorisation made, by 29 March 2018.

    Each step in this process to be the subject of a joint report to the Court, in a form to be agreed in consultation with Registrar Fewings.

138    Ms Longbottom sought an order against the TSRA that it make a decision on the funding applications by her instructors, and the large funding application by Dillon Bowers.

139    For the same reasons that I have decided not to make a costs order against the TSRA at the moment, I do not consider the Court should make such an order. Funding decisions are made by the TSRA in its capacity as a native title representative body. Although the TSRA, as a statutory authority, is one and the same statutory authority (with the same Board) as that which appears as a respondent to this proceeding, the functions are quite separate, and should remain so. That is what some within the TSRA have failed to appreciate, as I have noted in these reasons and earlier.

140    It would be inappropriate for the Court to contribute to the inappropriate mixing of interests and functions by making an order against the TSRA in its capacity as a native title representative body, requiring it to make a decision.

141    That is not to say that such an order will never be made in this proceeding. There may come a time, upon proper evidence and with submissions, that other orders are needed against the TSRA. In point of legal principle, since it is one and the same statutory authority, there may be no difficulty in that occurring. However, I consider it important the Court attempt to encourage the TSRA to separate its funding function from its function as a respondent in this proceeding.

142    It may also be the case that this situation is so unusual, and the behaviour of the TSRA so counter-productive to the interests of claim group members, that the Commonwealth should consider a separate stream of funding to both the applicant and the three claim group members respondents, for the limited time and limited purpose of an authorisation meeting and a s 66B application. At present, there is little cause for optimism that those responsible for decision-making within the TSRA will become supportive of the interests of the claim group members in the short term.

Costs

143    No party in this proceeding sought costs against the TSRA at the CMH on 18 December 2017. However, I consider that it is appropriate for the Court to consider, on its own motion, whether costs should be awarded in respect of a hearing that should not have needed to take place.

144    Section 85A of the Native Title Act provides:

85A Costs

(1)     Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)     Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.

145    In an interlocutory decision in the Part A aspect of this proceeding, Greenwood J considered (somewhat ironically) an application by the TSRA for costs: Akiba v Queensland [2010] FCA 321; 184 FCR 406. Given that this proceeding arises from an application made under s 61 of the Native Title Act, and for the reasons given by his Honour in those proceedings (see in particular, [32]-[60]), it is clear that s 85A applies to this proceeding, notwithstanding that the Court is considering costs orders at an interlocutory stage of the proceeding.

146    The operation of s 85A is well-established by the authorities. In Akiba [2010] FCA 321; 184 FCR 406, Greenwood J said at [61]:

Section 85A operates to remove any ground of expectation that unless ‘cause’ is shown for some other order to be made, costs will usually follow the event in accordance with settled principle guiding the exercise of discretion to award costs under general statutory provisions conferring such a power: Ward v Western Australia (No 2) (1999) 93 FCR 305 at [33] per Lee J; Davidson v Fesl (No 2) [2005] FCAFC 274 at [9] per French and Finn JJ. As Lee J observed in Ward 93 FCR 305 at [34], the discretion of the Court under s 85A to award costs is ‘not confined’. The matters to be taken into consideration in making a costs order are left by s 85A to the Court as a ‘discretion to be exercised judicially’. However, the starting point is that each party ‘must bear his or her own costs’ (the language of s 85(1)) unless the Court determines that it is appropriate in all the circumstances to make an order for costs. The circumstances informing whether the Court will do so are not confined to unreasonable acts or omissions on the part of a party sought to be burdened with a costs order. Plainly enough, one express basis upon which the Court may order a party to bear costs is that the party has engaged in unreasonable conduct within s 85A(2) of the Act.

147    In De Rose v State of South Australia (No 2) [2005] FCAFC 137, the Full Court (Wilcox, Sackville and Merkel JJ) endorsed what Lee J said in Ward v Western Australia (1999) 93 FCR 305, at [8]:

•    Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion (at [31]-[32]).

•    There is no requirement that a threshold condition be met before the Court is empowered to make a costs order. It follows that the exercise of the discretion is not conditional upon a finding of fact or the formation of an opinion as to the occurrence of unreasonable conduct or the existence of special circumstances (at [35]).

•    Section 85A(2) of the NT Act puts beyond doubt the extent of the Court’s discretion in cases where a party acts unreasonably, but s 85A(2) does not control or limit the discretion available to the Court under s 85A(1) (at [36]-[37]).

•    The matters to be taken into account in making a costs order are left to the Court’s discretion, which must be exercised judicially. However, the starting point is that each party will bear their own costs unless the Court determines that it is appropriate in the circumstances to make an order for costs (at [34]).

148    Similarly, in Cheedy v Western Australia (No 2) [2011] FCAFC 163; 199 FCR 23, the Full Court (North, Mansfield and Gilmour JJ) stated at [9]:

It is now well established that in proceedings to which s 85A applies:

(1)     s 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the FCA Act;

(2)     the “unreasonable conduct” of the parties is not a jurisdictional fact which pre-conditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1);

(3)     whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs; and

(4)     it is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would-be applicants: Reid v South Australia [2007] FCA 1479 at [54].

149    Whether conduct in a given case can be said to be “unreasonable” depends on the circumstances of each case. Conduct has been held to be unreasonable in the preservation of evidence stage of a proceeding, in circumstances where an applicant prepared five lists identifying people whose evidence may need to be preserved, none of which on final consideration produced a single person whom it wished to call: Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. More fundamentally, conduct has been held to be unreasonable where a respondent filed a notice of intention to participate and a response to the applicant’s statement of issues, facts and contentions and thus became the only party to challenge the applicant’s case on connection, in circumstances where the State and other respondent parties had agreed in principle to a consent determination, and where, after filing the response, it substituted a further amended notice and amended substituted response without any proper explanation: Watson v State of Western Australia (No 3) [2014] FCA 127, upheld on appeal (Oil Basins Limited v Watson [2014] FCAFC 154).

150    In contrast, conduct which was “benign, although equally unfortunate” as compared to the conduct in Watson, has been held not to be unreasonable in circumstances where the State withdrew an admission late in the proceeding which resulted in the claimants withdrawing their compensation claim: Ward v State of Western Australia (No 4) [2016] FCA 358.

151    I gave Mr Besley, who appeared on behalf of the TSRA at the 18 December CMH, an opportunity to make submissions about whether any costs orders should be made. He indicated he had anticipated such a situation, and had prepared submissions. Mr Besley, accepted that Lee J’s decision in Ward (1999) 93 FCR 305, as endorsed by the Full Court in De Rose, is authoritative in relation to the operation of s 85A. Mr Besley accepted that unreasonableness was one factor relevant to a consideration under s 85A, and referred to Quandamooka People #1 v State of Queensland [2002] FCA 259 for that proposition. Mr Besley submitted that in this case, the TSRA’s conduct concerning funding was not unreasonable, primarily for two reasons. The first is that the TSRA provided a substantive response to the funding application made by Mr Gilkerson on behalf of his clients within two weeks after the notice of acting was filed. In making this submission, Mr Besley conceded that some of his client’s conduct in relation to responding to requests for funding has been “difficult to understand”. The second reason is that the reason Dillon Bowers Lawyers received a response within a mere 28 minutes to their first interim request for funding was because Dillon Bowers had provided a cost agreement with a clear and finite work program. In relation to the amount offered of $81,000, Mr Besley said that this was a “reasonable starting point” on the basis that the work required to be done was essentially straightforward, unlike work required to amend a claim group or claim group area. According to Mr Besley, “it is simply a matter of deciding who the claim group wishes to choose to replace Mr Akiba”.

152    I do not accept those submissions. As the narrative I have set out earlier makes clear, the TSRA well knew Mr Gilkerson was acting for the three claim group member respondents from 22 November 2017 and its Senior Counsel indicated to the Court that a funding decision would be made by the TSRA. The TSRA well knew the involvement of Gilkerson Legal in this proceeding until October 2017. Why the TSRA did not welcome the only lawyers with substantial continuity and experience in this proceeding, and constructive connections with the claim group, back into its conduct is also unfathomable. Service of a notice of acting need not have been a condition precedent to a funding decision. Second, the “work program” was set out in the Court’s orders, which the TSRA was well aware of.

153    Mr Besley did not make the point made by counsel for the State, to which I refer below at [171]. He did not submit the Court could not, or should not make orders against the TSRA because it had a limited role as a respondent in this proceeding. As the evidence shows, Mr Besley is one of the lawyers, along with counsel he has briefed, who has been involved with the TSRA in a series of steps and events that are best characterised as the TSRA engaging in activities aligned with, if anything, its role as a native title representative body. Alternatively, he may have consciously chosen not to make this submission, given what he set out in a letter to Gilkerson Legal dated 8 August 2017 and sent in accordance with comments made by Greenwood J at a case management hearing on 28 July 2017. That letter is set out in an affidavit of Mr Gilkerson dated 12 October 2017, and sets out the reasons the TSRA should remain as a respondent in this proceeding: see [156] below. Sooner rather than later, there will need to be better clarity around the TSRA’s role in this proceeding. If, as Mr Besley has stated, the TSRA contends it has a role as a respondent because it is a representative body, then its obstructionism and delays in that role, apparent from the evidence to which I refer, may well justify a cost order against it. However, for the reasons I have outlined, at present I do not consider there is a sufficient basis for a costs order, without knowing what the motivations of those within the TSRA are for the instructions that have apparently been given. I give Mr Besley the benefit of the doubt and do not attribute to his oral submissions any concession that costs could be ordered against his client, but rather that he sought to focus on the substance of his client’s conduct.

154    The circumstances in this case are such that I consider the TSRA’s conduct to have been unreasonable even though, as the authorities make clear, that is not a threshold, or a jurisdictional fact which must be made out before the Court’s discretion on costs can be exercised. The narrative I have set out above at [24]-[106] amply demonstrates the many ways in which the TSRA has done little but run interference with attempts by the legal representatives of the three claim group members, and by Mr Akiba’s lawyers, to get the large organisational process of authorisation underway.

155    Under s 203B of the Native Title Act, the TSRA, as a native title representative body, has six main functions:

    the facilitation and assistance functions referred to in section 203BB;

    the certification functions referred to in section 203BE;

    the dispute resolution functions referred to in section 203BF;

    the notification functions referred to in section 203BG;

    the agreement making function referred to in section 203BH; and

    the internal review functions referred to in section 203BI.

156    The TSRA is well aware of these functions. So much is clear from the letter sent by Mr Ted Besley, its legal representative, to Ms Cartledge of Gilkerson Legal, then the applicant’s legal representative, on 8 August 2017. That correspondence is annexure OREG-1 to the affidavit of Mr Gilkerson, filed on 12 October 2017. It is instructive to extract Mr Besley’s description of the TSRA’s functions:

As you would be aware, the NTA confers certain functions, powers and obligations (collectively, ‘functions’) upon the TSRA as a representative body. Those functions which may be exercised with respect to these proceedings include:-

a) Facilitation and assistance functions when requested to do so (s 203BB). In performing these functions, the TSRA is required, among other things, to:

I. assist registered native title bodies corporate, native title holders and persons who may hold native title in consultations, mediations, negotiations and proceedings relating to native title applications (s 203BB(1)(B)); and

II. consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter (s 203BC(1)(a));

b) Dispute resolution functions (s 203BF). The dispute resolution functions of the TSRA include:

I. assisting in promoting agreement between its constituents (which include a native title holder in relation to native title in that area or a person who may hold native title in that area) about the conduct of consultations, mediations, negotiations or proceedings about native title applications (s 203BF(1)(a)(iii)); and

II. mediating between its constituents about the making of native title determination applications or the conduct of such consultations, mediations, negotiations or proceedings (s 203BF(1)(b));

c) Notification functions (s 203BG). The notification functions of the TSRA include:

I. ensuring that, as far as is reasonably practicable, notices that are given to the TSRA (whether under the NTA or otherwise) and that relate to land or waters partly or wholly within the area for which it is the representative body are brought to the attention of any person whom the TSRA is aware holds or may hold native title in relation to the land or waters, where the TSRA considers that the notices would be unlikely to come to the attention of the person by some other means (s 203BG(a)); and

II. as far as reasonably practicable, to identify and notify other persons who hold or may hold native title in relation to the land or waters about notices of the kind above (s 203BG(b)); and

d) other functions, which include:

I. as far as is reasonably practicable, to identify persons who may hold native title in the area for which the TSRA is the representative body (s 203BJ(b)); and

II. as far as is reasonably practicable, to inform the registered native title bodies corporate, native title holders and persons who may hold native title in so far as the TSRA knows, in relation to the area for which the TSRA is the representative body, of any matter the TSRA considers may relate to, or may have an impact upon native title in the area (s 203BJ(d)).

Further, while the TSRA must from time to time determine the priorities it will give to performing its functions and may allocate its resources in the way it thinks fit so as to be able to perform its functions effectively, it must give priority to the protection of the interests of native title holders (s 203B(4)).

157    The last paragraph of Mr Besley’s letter is worth emphasising. As a representative body, it must give priority to the protection of the interests of native title holders and claimants: in this proceeding, the only parties who are representatives of the claim group are Mr David, Mr Nona and Ms Kanai. In deciding to fund 14 (and perhaps more) barristers and solicitors since the beginning of this year, for itself, the applicant and Mr Duncan in this proceeding, while delaying and obstructing the funding of Mr David, Mr Nona and Ms Kanai, the TSRA is clearly not giving priority to the protection of the interests of native title holders and claimants.

158    In delaying the provision of funding, on bases which range from the spurious, to the technical, to the downright inconsistent, the TSRA has failed at a fundamental level to give priority to the protection of the interests of claim group members. Indeed, its conduct has jeopardised compliance with a carefully worked out scheme to regularise this proceeding: an outcome which is the principal mechanism to advance the interests of the native title claim group.

159    The TSRA has engaged in constant, and ongoing, delaying tactics in stalling the decision-making process in relation to funding. It has also sought to undermine the role of the three claim group member respondents, and the applicant’s cooperation with them, that was so obviously envisaged by all parties and by the Court at the end of the Thursday Island CMH.

160    Whatever officer holders or employees within the TSRA seek to achieve by this, one achievement that is undisputed is that the TSRA’s conduct has occasioned not only unjustifiable delay, but significant costs in all concerned, costs which could have been put towards getting the authorisation process underway. The level of correspondence that has been necessary for Mr Gilkerson, when compared with the straightforward path delivered to Mr Dillon, is one example.

161    All this in a context where Senior Counsel for the TSRA informed the Court on 22 November 2017 on the last day of the Thursday Island CMH that his client was aware of the funding request by Mr Gilkerson, or a forthcoming funding request, by lunchtime on 22 November 2017.

162    These delaying tactics are exemplified by:

(1)    At least by 28 November 2017, the TSRA was made aware by correspondence that Mr Gilkerson was acting for Mr David, Mr Nona and Ms Kanai, and that a funding request was being made by Mr Gilkerson on behalf of his clients: see [32] above.

(2)    On 30 November 2017, the TSRA noted only that Mr Gilkerson “intend[ed]” to represent the indigenous claim group respondents, but that, as it had not received a formal notice of acting, it considered it “premature to address the request for funding for legal representation in the proceeding”: see [33] above. Given the circumstances where Mr Gilkerson had expressly informed the CEO of the TSRA that he acted for Mr David, Mr Nona and Ms Kanai, it is unclear why a formal notice of acting was required to be served before a request for funding was addressed. A notice of acting is a Court process: it has nothing to do with the point at which a client retains a lawyer.

(3)    Between 7 December and 14 December 2017, the TSRA sought further details before it considered it could assess the funding request:

(a)    On 7 December, the TSRA said it needed a cost agreement, an outline of services, details as to the lawyers who would perform the work, and a description of tasks: see [40] above.

(b)    On 10 December, the TSRA said it needed to know the manner in which Mr Gilkerson proposed to conduct the authorisation process and whether Mr Gilkerson would be conducting information sessions: see [41].

(c)    On the same day, the TSRA said that it had to make decisions regarding assistance applications by reference to five general procurement policies issued by various Commonwealth departments: see [43]. As I said at [44] above, none of these policies would appear on their face to have any relevance to the assessment of a s 203BB funding request, which concerns the funding of legal costs for services provided by Mr Gilkerson to his indigenous claim group respondent clients, not to the TSRA.

(d)    After the provision of a third party payer costs agreement by Mr Gilkerson on 12 December 2017, the TSRA said on 13 December that that was not the correct document, on the basis that it required a “signed Costs Agreement with your clients”: see [73]. This would appear to be a misunderstanding, whether deliberate or otherwise, by the TSRA as to whether it or the indigenous claim group respondents should be executing such an agreement. I observe that the TSRA made no similar demand of Dillon Bowers in relation to their first cost agreement.

(e)    The TSRA then sought clarification on Mr Gilkerson’s client’s interests, in order to consider whether the fact that Ms Cartledge of Gilkerson Lawyers previously represented the applicant would give rise to a conflict of interest: see [74] above.

(4)    On 15 December, the TSRA sent two conflicting letters, the first to suggest that a funding decision would not be made until a board meeting was convened due to the desire of the indigenous claim group respondents to engage GBK in the provision of services in the lead-up to the authorisation process, and second, to suggest that notwithstanding the first letter, funds of up to $81,000 would be approved jointly for the applicant and the indigenous claim group respondents. These two letters have added considerable confusion to the funding process and the requirements of the TSRA, and I consider it adds to the unreasonableness of the conduct already discussed.

163    The unreasonableness of the TSRA’s conduct set out in each of the paragraphs above is made all the more striking when contrasted with its conduct in relation to the funding request made by Dillon Bowers Lawyers. Mr Dillon was not asked whether and how he might be involved in the authorisation process, despite the fact that he represented the applicant, who must necessarily be involved in the process (if only so he could be removed as the applicant). He was not referred to any of the general procurement policies which the TSRA asserted were relevant considerations to any funding request. He was not asked to provide a cost agreement signed by Mr Akiba. The interim cost agreement was approved in 28 minutes.

164    In relation to para (3)(e) of [162] above, I consider this concern over the conflict of interest disingenuous for two reasons: first, the TSRA has been aware from the outset that Ms Cartledge was previously on the record for the applicant – indeed, the TSRA had previously provided funding for that purpose. It is not clear why, given the request for funding was clearly made from at least 28 November 2017, the question concerning a possible conflict of interest was only asked more than two weeks later, after a large amount of correspondence and a case management conference.

165    Second, the TSRA has been heavily involved in this proceeding, at least since May of this year, when it directed the applicant’s experts to stop work. It could not seriously suggest that it was not aware of the relationship between the interests of the applicant and the three claim group respondents, who are each PBC Chairs and key figures in this proceeding. If it were to be contended that the TSRA, through Mr Farrell, is acting in its native title representative body capacity, and not as a respondent to this proceeding, and therefore that Mr Farrell is not aware of the circumstances of this proceeding and the interests of the various indigenous parties, such a contention would be untenable.

166    Although Mr Farrell is not a solicitor on the record for the TSRA, it is clear from documents filed before the Court that Mr Farrell has personally been involved in this proceeding. As part of the TSRA’s interlocutory application to change the venue of the Thursday Island CMH, Mr Farrell travelled to Mer with Cecilia O’Brien for the purposes of conducting a meeting with Mer elders in relation to “the past conduct of Sea Claim A” and the proposed change of venue to Mer: see [12] of the affidavit of Ms O’Brien sworn 7 November 2017. He was copied into a series of correspondence on this issue, as can be seen from the correspondence annexed to Ms O’Brien’s affidavit. In addition to this, he has been giving instructions to Mr Besley of Just Us Lawyers, who is on the record as the solicitor acting for the TSRA in this proceeding. So much is clear from the covering email to the letter I extracted at [39]. That covering email said “Please find attached correspondence in relation to the above matter sent you in Mr Farrell’s absence…”

167    The mixed roles of Mr Farrell in this proceeding do not rise to the same levels as those of Ms O’Brien, although it might be said that the circumstances detailed at [166] may give rise to such concerns. For the moment, I make these observations only to say that the TSRA’s apparent lack of knowledge of the claim group member respondents’ interests is disingenuous.

168    The only reason this CMH was required was because of the TSRA’s unreasonable conduct in delaying the making of the funding decision for the three claim group respondents’ legal representative, and the resulting lack of progress towards an authorisation process. There is no other reason for this CMH.

169    Further, in order to explain the position to the Court, Mr Gilkerson and Mr Dillon have had to spend what was obviously a large amount of time preparing affidavit material, including, in the case of Mr Gilkerson, secondary affidavit material because the TSRA continued to go backwards and forwards about funding.

170    The time and resources of each of the active parties, and of the Court, has been wasted because of the TSRA’s obstructionist attitude and that cannot be ignored.

171    Nevertheless, it is true, as counsel for the State submitted, that the conduct which I have set out in detail in these reasons, is conduct of officers within the TSRA who purport to discharge the TSRA’s functions as a native title representative body, not as a respondent to this proceeding. As I have also set out, those functions have become mixed at times, and the personnel within the TSRA (and its external legal advisers) seem to move between the two roles without any consciousness of the potential conflicts in doing so. But that is not reason for the Court to add to the mixing and conflict, at least not without a firm foundation in evidence before it that there is no separate “respondent” function in reality.

172    The TSRA’s conduct as an objectively minor respondent to this proceeding has caused difficulties, including at the Thursday Island CMH where there was a level of obstruction from the TSRA in that respondent role. However, since that time on the current evidence it has mostly been the TSRA’s purported performance of its native title representative body functions which have caused the major disruption and interference. Not only in funding, but also by calling unilaterally a claim group meeting in Cairns, and in seeking Senior Counsel’s advice on authorisation – for what purpose is unclear. For example, the TSRA could have briefed Senior Counsel to provide an advice on authorisation to the applicant and the three claim group member respondents, having consulted with them.

173    It should also be apparent from these reasons that the nature of the TSRA’s conduct gives the Court cause to search for a rational explanation for the way it is behaving. None has been forthcoming. If this level of disruption and uncooperative unilateral conduct continues, in order to protect the integrity of this proceeding the Court may require an explanation from the TSRA, in its capacity as a native title representative body. It may do that by directing the Board members of the TSRA, and those officers within the TSRA responsible for this decision-making to appear and give evidence. Not for the purpose of entering into any review of its funding decisions, but to understand why it is taking such an uncooperative and disruptive role, and what, if anything, might and should be done about that, so as to protect the Court’s judicial processes from abuse.

174    Whether, as a result of evidence from responsible Board members, and officers within the TSRA, evidence emerges that provides grounds for third party costs orders, will be a matter for determination at the time. Alternatively, there may be an innocent and simple explanation for the behaviour of individuals within the TSRA who are making these decisions.

175    Although for the reasons I have given no costs orders will be made at present, the Court will reserve the position of the costs of this CMH, for all parties except the TSRA. The Court will continue to monitor closely the progress of compliance with the Court’s orders, and the support given by the TSRA in its capacity as a native title representative body, to Mr Akiba, Mr David, Ms Kanai and Mr Nona to facilitate that compliance. If there is evidence of further disruption and interference from the TSRA (whether as to funding or otherwise), the Court may revisit, of its own motion, not only the costs of the 18 December 2017 CMH, but any ongoing costs incurred by other parties because of the behaviour of individuals within the TSRA. If that is necessary, it will be done at a full hearing where the Board members responsible for making decisions about the TSRA’s conduct will be required to give evidence, as might its legal officers. If any other orders against third parties are sought, they will be given consideration.

176    The Court’s processes, and the principal role of the claim group members who assert native title in the Part B Sea Claim area, cannot continue to be undermined in the way that some individuals within the TSRA appear to have considered they are able to do to date. It is well past the time the TSRA should be supporting its constituents, not working against them.

Postscript

177    Later in the day after the case management hearing, the Court was informed by correspondence that the TSRA had made a funding decision, so that the order sought by the three claim group member respondents that the TSRA make a decision on their funding application was not necessary. The letter, copied to Registrar Fewings, was from Mr Farrell. It stated that a delegate of the TSRA had decided to grant the sum of $74,000, excluding GST, on a joint basis as between the applicant’s lawyers and Gilkerson Legal on behalf of the three claim group member respondents. This amount is identical to the amount that was offered on 15 December 2017. It is unclear whether this letter is merely a confirmation of the offer made on 15 December 2017, or a second offer made on substantively the same terms following Mr Gilkerson’s refusal of the first offer: see [94].

178    Given what was said at the case management hearing yesterday, it is plain both sets of parties to whom the grant is made are likely to consider the amount inadequate. What occurs in relation to that decision by the TSRA will be a matter for those parties.

179    The Court expects its Orders to be met. If the cause of non-compliance with the Orders is inadequate finding from the TSRA, then the Court will deal with that situation as and when it arises. If the TSRA, whether through its funding decisions or otherwise, continues to derail and disrupt this proceeding, and continues to take unilateral action without working cooperatively with the applicant and the three claim group member respondents, apparently for its own purposes whatever they might be, then the Court will, prior to the 1 February 2018 deadline for compliance with the first of these Orders, entertain whatever applications the applicant and the three claim group member respondents seek to make to the Court.

Associate:

Dated:    19 December 2017