FEDERAL COURT OF AUSTRALIA

Bill v Northern Land Council [2018] FCA 1823

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application of the Applicants filed on 21 May 2018 is wholly refused.

2.    Judgment be entered for the Respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) and the action is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns two interlocutory applications. The first is by the applicants seeking leave to amend their Originating Application and the Amended Statement of Claim filed on 3 October 2017 (2SC) and to constitute the action as a representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). The second is the respondent’s application for summary dismissal of the proceedings or, in the alternative, the striking out of several paragraphs in the 2SC.

2    It is convenient to address the respondent’s application first but, in doing so, to have regard in addition to the form of the proposed Third Statement of Claim (3SC) in relation to those pleas impugned by the respondent. I will address most of the submissions advanced by the parties although, as will be seen, I conclude that the respondent’s summary judgment succeeds by reason that the applicants have no reasonable prospect of establishing that they have suffered actionable loss.

The parties

3    The respondent is the Northern Land Council (NLC). It is an Aboriginal Land Council established under s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA). It is also a representative body under Pt 11 of the Native Title Act 1993 (Cth) but its status in that respect is not material in these proceedings.

4    The Muckaty Aboriginal Land Trust (the Muckaty Land Trust) was originally the second respondent. It is a Land Trust established under s 4(1) of the ALRA and holds the title to an area of land in the Northern Territory known as Muckaty Station, having been granted an estate in fee simple over that land on 25 November 1999.

5    During the course of the hearing of the interlocutory applications, the applicants sought, and were granted, leave to discontinue the proceedings against the Muckaty Land Trust. A notice of discontinuance against it has since been filed. Accordingly, the NLC is now the sole respondent to the proceedings.

6    The first and second applicants are “traditional Aboriginal owners” as defined in s 3 of the ALRA of land within Muckaty Station, including land at its southern boundary. They have that status because they are members of a “local descent group” in the sense in which that term is used in the definition of “traditional Aboriginal owner” in s 3 of in the ALRA. That descent group is known as the Ngapa (Lauder).

7    The third applicant is a member of another local descent group known as the Ngapa (Foster) who are said to have interests in at least some of the portions of Muckaty Station in question in this litigation.

Factual setting

8    On 18 June 2007, acting pursuant to s 3A(2) of the Commonwealth Radioactive Waste Management Act 2005 (Cth) (the 2005 Act), the NLC nominated land at the southern boundary of Muckaty Station (the Southern Site) for consideration as the site for a national radioactive waste management facility (the Repository) then being contemplated by the Commonwealth (the 2007 Nomination).

9    The 2005 Act established a scheme by which:

(a)    the Chief Minister of the Northern Territory or a Land Council in respect of Aboriginal land could nominate land as a potential site for a repository for radioactive waste (s 3A);

(b)    the relevant Minister could approve nominated land as a site for a repository (s 3C);

(c)    the relevant Minister could declare that a site be selected as a site for a repository (s 7);

(d)    a declared site could be acquired by the Commonwealth (s 9);

(e)    a repository could be established, operated and maintained on a declared site; and

(f)    compensation could be paid to those from whom the property was acquired (s 15).

10    At the time of making the nomination of the Southern Site, the NLC entered into a Site Nomination Deed with the Commonwealth and the Muckaty Land Trust. Both the 2SC and the 3SC refer to the Site Nomination Deed and it may be taken to have been incorporated into each by reference. A copy of the Site Nomination Deed was in evidence at the hearing.

11    The Site Nomination Deed provided for benefits to be paid by the Commonwealth in the event that the Southern Site and an associated access road were declared under the 2005 Act as a site for a repository, and a repository was in fact constructed on the site.

12    I will outline relevant aspects of the Site Nomination Deed later in these reasons.

13    The 2007 Nomination was formally approved, pursuant to s 3C(1) of the 2005 Act, by the Minister for Science on 24 September 2007. This meant that the Southern Site could be considered for declaration as a site for the Repository and entitled the NLC to the payment of the “upfront” payment.

14    The 2005 Act was repealed by Sch 1 to the National Radioactive Waste Management Act 2012 (Cth) (the 2012 Act). However, by Sch 2 of the 2012 Act, the 2007 Nomination was preserved as a nomination under that Act.

15    The applicants allege that the Commonwealth and the NLC had also contemplated that the NLC may nominate another site on Muckaty Station, at its northern boundary (the Northern Site). In the events which happened, the NLC did not make any nomination of land as a site for the Repository other than the Southern Site. The fact that it did not do so gave rise to an alternative claim by the applicants.

16    On 3 June 2010, one Mark Jangala commenced proceedings in this Court (Action VID433/2010) challenging the 2007 Nomination (the Jangala Action). Mr Jangala is an Aboriginal person. The respondents to the Jangala Action were the NLC, the Muckaty Land Trust, the Commonwealth of Australia and the Minister for Resources of the Commonwealth. Members of the Ngapa (Lauder) were not parties to the Jangala Action. Later, another three Aboriginal persons were joined as applicants to the Jangala Action.

17    The primary relief sought by the applicants in the Jangala Action was a declaration that the 2007 Nomination was null and void and an injunction restraining the respondents from acting on or implementing it. They sought that relief on numerous bases, including misleading or deceptive conduct, breach of statutory duty and breach of fiduciary duty.

18    The trial of the Jangala Action commenced in Melbourne on 2 June 2014 before North J. At the completion of the opening submissions, the hearing moved to the Northern Territory and, between 9 June 2014 and 14 June 2014, the Court heard evidence at Tennant Creek and Muckaty Station. The trial was then adjourned to resume in Melbourne on 20 June 2014.

19    However, on 18 June 2014, the parties and/or their representatives executed a settlement deed. The operative terms of the settlement deed were as follows:

IT IS AGREED AS FOLLOWS:

1.    The Applicants acknowledge that the Respondents agree upon these terms of settlement without any admission as to the allegations, and without any admission that the Nomination or Approval involved error.

2.    In consideration of 3 below, the First Respondent undertakes to the Court not to act upon the Nomination and Approval including under s 14 of the 2012 Act.

3.    The parties consent to the making of orders that:

a    the proceeding be dismissed;

b    the parties bear their own costs of the proceedings.

4.    Subject to these terms of settlement, the parties release and forever discharge each other with respect to the matters the subject of the allegations.

20    Subsequently, on 20 June 2014, North J made orders by consent as follows:

UPON THE UNDERTAKING of the Commonwealth of Australia not to act upon:

(a)    the nomination of Aboriginal land made by the Northern Land Council on 18 June 2007 pursuant to s 3A(2) of the Commonwealth Radioactive Waste Management Act 2005 (Cth); and

(b)    the approval of the nomination given under s 3C(1) of the Commonwealth Radioactive Act Waste Management Act 2005 (Cth) on 25 September 2007;

whether under s 14 of the National Radioactive Waste Management Act 2012 (Cth) or otherwise.

THE COURT ORDERS BY CONSENT THAT:

1.    The proceedings are dismissed.

2.    Each party bear its own costs of the proceedings.

21    I will refer to the settlement deed and consent orders collectively as “the 2014 Settlement”.

22    Following the 2014 Settlement, the NLC did not make any further nomination under the 2012 Act of an area of Muckaty Station for use as the Repository. It was common ground that the “window” in which that could have been done concluded on 12 December 2014.

The applicants’ claims – overview

23    The applicants seek to recover damages from the NLC on two bases. The first arises from the 2014 Settlement and the second from the circumstance that the NLC did not thereafter make any further nomination of land under the 2012 Act (the No Nomination Claim).

24    The applicants allege that, in making the 2014 Settlement, the NLC:

(a)    breached the common law duty of care it owed to the Ngapa (Lauder) and to neighbouring traditional owners (3SC [97A]-[97C]);

(b)    breached statutory duties owed to the Ngapa (Lauder) and to neighbouring traditional owners under the ALRA (3SC [97E]-[97F]);

(c)    breached fiduciary duties owed to each member of Ngapa (Lauder) and to neighbouring traditional owners (3SC [97H] and [97J]); and

(d)    committed misfeasance in public office (3SC [97M]-[97N])

25    The 2SC contains the pleas of negligence and breach of statutory duty only. The applicants seek to add the pleas of breach of fiduciary duty and misfeasance in public office in the 3SC.

26    In [96] of the 2SC and the 3SC, the applicants assert that the NLC’s breach of the statutory duties and common law duty of care “destroyed their financial interests in the sum of $12 million (plus interest)”.

27    In relation to the No Nomination Claim, the applicants plead that following the 2014 Settlement, it had been open to the NLC to nominate a further site, such as the Northern Site, for use as the Repository, but it had not done so (3SC [98]-[110]). They plead that in not doing so, the NLC:

(a)    breached the common law duty of care owed to the Ngapa (Lauder) and to “other interested Aboriginal persons supportive of the proposed nomination” (3SC [112A]-[112D]);

(b)    breached statutory duties owed to the Ngapa (Lauder) and to neighbouring traditional owners under the ALRA (3SC [112E]-[112G]); and

(c)    breached fiduciary duties owed to the Ngapa (Lauder) and to neighbouring traditional owners (3SC [112H]-[112L]).

28    There is no claim of misfeasance in public office in relation to the No Nomination Claim.

29    As is the case with the claims concerning the 2014 Settlement, the applicants seek to add the claim of breach of fiduciary duty by amendment to the 2SC.

30    In relation to the No Nomination Claim, the applicants allege that the NLC’s conduct and omissions destroyed their financial interests in the sum of $17 million, at [112] ([112D] in the 3SC). This claim is made with reference to an earlier plea that, in 2013, the Commonwealth had offered an increased sum of $17 million to be held in a charitable trust if the Northern Site was nominated and endorsed as the site for the Repository.

31    The relief sought by the applicants in the 2SC is payment of the lump sum amount which would have been paid by the Commonwealth had either Muckaty Station site been accepted as the location for the Repository (said in the pleadings to be $12 million or $17 million, as the case may be) together with interest. In the proposed 3SC, the applicants make the same claim but in addition claim aggravated or exemplary damages and/or equitable compensation. They do not seek any other form of relief.

Principles and approach

32    The respondent seeks the summary dismissal of the proceedings pursuant to s 31A(2) of the FCA Act. Section 31A provides (relevantly):

31A Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

…

33    The High Court discussed the application of s 31A in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In addition, the proper approach has been discussed in a number of authorities in this Court. It is now established that the summary dismissal of a proceeding, and the consequent preclusion of litigants from having their case determined on its merits at a final hearing, is a serious step to be taken only with great care and when it is possible to conclude with confidence that there is no reasonable prospect of success: Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4]. This is so even though s 31A(2) does not depend on the case being characterised as “hopeless” or “bound to fail” in order for it to be found to have no reasonable prospect of success: Spencer at [17]-[26]. When there is an arguable issue of fact or law on which the fate of a claim may turn, the action should be permitted to proceed to trial. Accordingly, a party who seeks summary judgment bears a heavy onus: Australian Competition and Consumer Commission v FDRA Pty Ltd [2016] FCA 429 at [27], [29].

34    In relation to the striking out of particular paragraphs in the 2SC, the respondent relies upon r 16.21 of the Federal Court Rules 2011 (Cth) (the FCR). That rule provides (relevantly):

16.21    Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

  (a)    contains scandalous material; or

…

  (c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

…

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1) (a), (b) or (c) or is otherwise an abuse of the process of the Court.

35    In the recent decision in Sitzler Pty Ltd v GPT RE Limited as Responsible Entity of the General Property Trust [2018] FCA 1496, I referred at [8]-[12] to principles which guide the Court’s approach to applications under r 16.21. It is not necessary presently to repeat what I said then.

The functions of the NLC as a Land Council

36    The ALRA established a regime for the grant of statutory rights in land to traditional Aboriginal owners in the Northern Territory. Aspects of the scheme and of the object of the ALRA are summarised in the reasons of French CJ in Wurridjal v Commonwealth of Australia [2009] HCA 2; (2009) 237 CLR 309 at [98]-[102] and it is not necessary to repeat that summary. It is sufficient to note that the purpose of the ALRA is to confer some of the important benefits of ownership of land upon traditional Aboriginal owners.

37    The term “traditional Aboriginal owners” is an important concept in the ALRA. It is defined in s 3(1) as follows:

traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:

(a)    have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b)    are entitled by Aboriginal tradition to forage as of right over that land.

38    As is apparent, the term refers to a “group” of Aboriginals having the specified characteristics. The ALRA confers benefits on the group as a whole rather than on any individual within a group. The group members have their interests by virtue of being a member of the group, rather than in any individual sense.

39    Relevantly for present purposes, the ALRA achieves its object by providing for the vesting of land in Land Trusts, such as the Muckaty Land Trust, and then providing for the functions of these Trusts and the manner in which they are to operate. It provides in s 5(2) that a Land Trust is to exercise its functions in relation to land only in accordance with a direction from a Land Council:

(2)    A Land Trust:

(a)    shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and

(b)    where such a direction is given to it—shall take action in accordance with that direction.

40    The functions of Land Councils are specified in s 23 of the ALRA. That section provides (relevantly):

23 Functions of Land Council

(1)    The functions of a Land Council are:

(a)    to ascertain and express the wishes and the opinion of Aboriginals living in the area of the Land Council as to the management of Aboriginal land in that area and as to appropriate legislation concerning that land; and

(b)    to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council; and

…

(c)    to consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land; and

…

(e)    to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council:

(i)    where the land is held by a Land Trust—on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginals interested in the land; and

(ii)    where the land is the subject of an application referred to in paragraph 50(1)(a)—on behalf of the traditional Aboriginal owners of that land or on behalf of any other Aboriginals interested in the land; and

…

…

(3)    In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:

(a)    the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and

(b)    any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.

(4)    The reference in paragraph (1)(e) to an estate or interest in land includes a reference to a licence in respect of that land.

41    Section 23AA is also relevant. It provides (relevantly):

23AA How functions of a Land Council are to be performed

Priorities

(1)    A Land Council must from time to time determine the priorities it will give to performing its functions under this Part.

…

(3)    A Land Council must give priority to the protection of the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Council.

Functions to be performed in a timely manner

(4)    A Land Council must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:

  (a)    time limits under this Act; or

(b)    time limits under another law of the Commonwealth or a law of the Northern Territory that are relevant to the performance of its functions.

Maintenance of organisational structures and processes

(5)    A Land Council must perform its functions in a manner that:

(a)    maintains organisational structures and administrative processes that promote the satisfactory representation by the Council of, and promote effective consultation with, the traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Council; and

  (b)    ensures that the structures and processes operate in a fair manner.

42    In Wurridjal, Crennan J noted the inter-relationship between the various rights, duties, powers and obligations for which the ALRA provides, all of which are intended to benefit the traditional Aboriginal owners:

[391]    The Land Trust's rights of ownership have always been held subject to arrangements in the Land Rights Act of some complexity which provide for dealings between traditional Aboriginal owners and any Aboriginal person or group (s 19(5)(b)), Aboriginal persons entitled by Aboriginal tradition to use and occupation of Aboriginal land, Aboriginal Land Trusts (s 3 and Pt II), Aboriginal Land Councils (s 3 and Pt III) and the Commonwealth. Each person or entity has different rights, duties, powers and obligations but all are interrelated and all are directed ultimately to the benefit of “the traditional Aboriginal owners” of the land. …

(Footnotes omitted)

The claim with respect to the 2014 Settlement

43    In submitting that the applicants had no reasonable prospect of successfully prosecuting their claim with respect to the 2014 Settlement, the NLC relied principally on three matters: it had no duty to consult with the Ngapa (Lauder) with respect to that settlement; such statutory duties as it did owe did not give rise to any private cause of action; and the applicants could not, in any event, prove that they had suffered actionable loss.

No duty to consult

44    The NLC submitted that the applicants’ claim amounts, on analysis, to a claim that it (the NLC) had failed to consult with the Ngapa (Lauder) before agreeing to, and implementing, the 2014 Settlement. This meant, it submitted, that the claim largely turned on the application of s 23(3) of the ALRA. That being so, it submitted that neither the negligence nor breach of statutory duty claim has reasonable prospects of success. Most of the NLC submissions on this topic focussed on the breach of statutory duty claim.

45    The NLC accepted that the applicants have also pleaded breaches of duties said to be imposed by subparas (a), (b), (c) and (e) of s 23(1) and of s 23AA(3) of the ALRA. It submitted, however, that these do no more than “add context” to the operation of s 23(3).

46    Having characterised the applicants’ claims as being a plea that it had failed to consult, the NLC submitted that its actions in relation to the 2014 Settlement did not, as a matter of law, engage the requirements of s 23(3). This is because the “action” to which s 23(3) refers is of a confined kind, relating to the grant or denial of an interest in land or to the definition of future rights and entitlements in land. In support of this contention, the NLC referred to Alderson v Northern Land Council (1983) 20 NTR 1 at 10; (1983) 67 FLR 353 at 361 in which Muirhead J held:

In my opinion the words “any action” relate to a step or decision which, in itself, may grant or deny an interest or which define future rights or entitlements of those whose interests the Land Council has been created to assist and protect, and whose aspirations it has been set up to foster. I do not consider that in furthering the negotiations now on foot the Land Council is taking “any action” within the meaning of the section. If the stage is reached when a final proposal or proposed term of agreement can be put forward for consideration the Land Council cannot cause an agreement to be concluded which relates to Aboriginal land until it is satisfied as to consultation, understanding and consensus.

(Emphasis added)

47    The Full Court in Rirratjingu Aboriginal Corporation v Northern Land Council [2017] FCAFC 48; (2017) 248 FCR 349 at [84] referred with apparent approval to this passage in Alderson.

48    The NLC then submitted that its action in consenting to the 2014 Settlement did not constitute the discharge of a function with respect to Aboriginal land in the Alderson sense. Instead, it had been “simply defending the proceedings alleging that the nomination was invalid”.

49    In the context of a strike out application, I am not satisfied that that submission should be accepted. First, the quoted passage from Muirhead J in Alderson is not to be read as though it is a provision in the statute with the consequence that one has to consider whether the action in question is within the words used by Muirhead J.

50    Secondly, as the NLC itself acknowledged, there is some judicial support for the proposition that “the compromise of litigation which concerns Aboriginal land may be encompassed by s 23(3)”. In Gagudju Association v Northern Land Council [1995] FCA 305, Olney J considered whether the NLC’s conduct in continuing to prosecute litigation seeking the rescission of an agreement relating to the mining of uranium on Aboriginal land amounted to it taking “any action” in a matter “in connexion with land held by a Land Trust” so that s 23(3) was engaged. Olney J rejected that contention. However, his Honour considered that the NLC’s conduct in commencing the litigation in question was within s 23 and that any decision to compromise the proceeding could also attract the operation of s 23(3). Olney J said:

There can be no doubt that the respondent’s conduct in commencing the Ranger litigation in 1985 was action in connexion with the relevant land to which the provisions of s 23(3) applied. The object of the proceedings is to have rescinded and declared void an agreement with the Commonwealth and others which relates to the use for mining operations of Aboriginal land within its area. On any understanding of s 23(3), to institute proceedings of that type amounts to the taking of action in a matter in connexion with the land. … It may well be that any decision to compromise the proceedings would amount to another type of action in connexion with the land which would require the prior consent of the traditional owners and the opportunity for affected communities and groups to express their views, but that case is not this case. The respondent has not sought to compromise the proceedings but rather to pursue them to finality.

(Emphasis added)

51    The NLC sought to distinguish Gagudju by submitting that the 2014 Settlement was not a “matter in connexion with land”, in the sense that expression is used in s 23(3). It submitted that two matters indicated that that was so. First, it submitted that it had, in the exercise of the powers vested in it by s 27 of the ALRA, simply been defending the proceedings in which the validity of the nomination of the Muckaty Station site was challenged. Secondly, it submitted that it had been a “passive” participant in the 2014 Settlement. Neither submission is persuasive.

52    The submission concerning the “passivity” of the NLC in the 2014 Settlement will require consideration of three issues: first, the conduct of the NLC in relation to the 2014 Settlement; secondly, whether that conduct is to be characterised as “passive”; and, thirdly, whether if so, that is material to the question of whether its conduct was “in connexion with land”. The consideration of the first and second will require the evaluation of evidence. Contrary to the NLC’s submissions, these are not matters which can be resolved by reference to particular paragraphs in the applicants’ reply submissions or by reference to paragraphs in the 2SC and 3SC in which the resolutions passed by the NLC Executive in relation to the 2014 Settlement are alleged. If the passivity of the NLC is material, it will have to be determined at the trial.

53    Nor does the NLC’s reliance on s 27 of the ALRA assist it presently. Section 27(1) empowers a Land Council to “do all things necessary or convenient to be done for or in connexion with the performance of its functions”. This is a facilitative provision and not a separate grant of power. Further, s 27(1) is prefaced by the words “subject to this Act” so that the exercise of the powers conveyed does not detract from the other obligations to which the ALRA subjects the NLC.

54    Counsel also submitted that Gagudju could be distinguished from the present case on other bases: in Gagudju the NLC had been the prosecuting party whereas in the Jangala Action it had been a respondent; in the 2014 Settlement, it had not altered its position concerning the validity of the 2007 Nomination; it had not withdrawn the 2007 Nomination; and the question of whether a declaration was to be made with respect to the nominated site was a matter within the Minister’s absolute discretion. Each of these matters may be accepted. Even so, they do not alter the circumstance that, by the 2014 Settlement, the NLC agreed to action by which its nomination of the Southern Site could no longer be acted upon, that land could no longer be acquired by the Commonwealth, and compensation would not be paid by the Commonwealth with respect to that land.

55    The phrase “in connexion with” is regarded as capable of encompassing “a spectrum of relationships ranging from the direct and immediate to the tenuous and remote”: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 288. Its meaning depends on the statutory context in which it appears. In s 23(3), the evident statutory purpose is to require consultation by a Land Council with those who may have an interest in the land in question. It does so by imposing both positive and negative duties. The negative stipulation is broadly expressed: the Land Council is not to take any action, including, but not limited to, the giving or withholding of consent in any matter in connexion with land held by a Land Trust unless satisfied of the understanding of, and consent by, the traditional Aboriginal owners and that others who may be affected have been consulted. To my mind, this broadly cast negative stipulation suggests that the phrase “in connexion with” is not used in a narrow sense. It would not be appropriate to regards it as requiring a close and direct relationship between a proposed action, on the one hand, and the land on the other.

56    In these circumstances, it is, at least, reasonably arguable that the 2014 Settlement was “in connexion with land” held by the Muckaty Land Trust. As indicated, the Settlement had the effect that the Southern Site could no longer be considered by the Commonwealth for acquisition for the Repository and, in turn, that the prospect of receiving the compensation available in the event that it was acquired for that purpose was foregone. Put slightly differently, the NLC action meant that the means by which a portion of the Muckaty Station land could be alienated and compensation received in return, was lost. It is unrealistic, in my view, to regard the NLC as having been doing no more than settling legal proceedings.

57    Thirdly, it is doubtful that the characterisation of the applicants’ claims, which is the foundation for this submission of the NLC, is appropriate, or at least complete. It will be recalled that the NLC submitted that the applicants’ claim was that it had breached the duties it owed, by failing to consult with them. However, the applicants allege in [97C] of the 3SC eight separate actions by the NLC said to constitute the breach of a duty of care. Only four of those particulars allege a failure to consult with, or to advise, the Ngapa (Lauder) and the neighbouring Traditional Owners. Only two of the particulars identifying the conduct constituting the breach of statutory duties alleged rest on a failure to consult with, or advise, the Ngapa (Lauder) and neighbouring Traditional Owners. In these circumstances, the NLC’s characterisation of the applicants’ claim as based only on a duty to consult, which was breached, seems, in any event, to involve some inappropriate shoehorning of the case it has to meet.

58    For all these reasons, the first basis upon which the NLC contends that the applicants do not have any reasonable prospect of successfully prosecuting the proceeding cannot be sustained.

No private cause of action

59    It is not every breach of a statutory duty which gives rise to a private cause of action. The circumstances in which a breach may do so were stated in the judgment of the plurality in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed in O’Connor v SP Bray Ltd, an examination of the statute “will rarely wield a necessary implication positively giving a civil remedy”.

(Citations omitted)

See also Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 at [142] (Crennan and Kiefel JJ)

60    As the ALRA contains no express statement of intention, the determination of whether it contains an implication that a private cause of action is available in respect of breaches of s 23 will require consideration of what the provision does and its nature and purpose: Australian Iron and Steel Ltd v Ryan [1957] HCA 25; (1957) 97 CLR 89 at 98 (Kitto J). This will be a task of some complexity requiring close examination of the nature, scope and terms of the ALRA. The requirement for a focus of this kind has been emphasised in a number of the authorities. In their separate judgment in Byrne v Australian Airlines, McHugh and Gummow JJ at 460 endorsed the following statement by Kitto J in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 (which was, in turn, an endorsement of a passage in an earlier judgment):

The intention that such a private right shall exist is not … conjured up by judges to give effect to their own ideas of policy and then “imputed” to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question statutory interpretation.

61    Dixon J gave the same caution in O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 478:

As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction.

62    The authorities indicate that several matters have been regarded as bearing upon the assessment of whether a statute intends that a private cause of action be available:

(a)    ordinarily, the more general the statutory duty and the wider the class of persons in the community who it may be expected will derive benefit from its performance, the less likely it is that the statute can be construed as conferring an individual right of action for damages for its non-performance: Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at [326] (Hayne J);

(b)    when the statute does not itself provide a remedy for a breach (such as a right of appeal or review), it may be easier to infer that a private remedy is available to the persons who are the intended beneficiaries of the discharge of the duty, and who have suffered loss by its breach. Otherwise “the statute would be but a pious aspiration”: Cutler v Wandsworth Stadium Ltd [1949] AC 398; [1949] 1 All ER 544 at 407;

(c)    the existence of a statutory remedy such as a fine or civil penalty may be an indication that the duties imposed by statute are for the public benefit, so that a breach of them is a public and not a private wrong: ibid at 408;

(d)    however, the inclusion of a statutory remedy for breach such as a fine or civil penalty is not conclusive against the existence of a private remedy: ibid at 407; Groves v Wimborne [1898] 2 QB 402; at 416; [1895-9] All ER Rep 147;

(e)    when the statutory duty is for the benefit of individuals within a certain class or section of the public, and not for the public as a whole, a private right of action may more readily be found: Sovar v Henry Lane at 404-5. In Groves v Wimborne at 415, Vaughan Williams LJ stated the principle as follows:

[I]t cannot be doubted that, where a statute provides for the performance by certain persons of a particular duty, and someone belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie, and, if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty.

(f)    nevertheless, a private right of action may still be found to be available even when the statutory duty is owed to the public generally. Lord Justice Atkin stated the position in Phillips v Britannia Hygienic Laundry Co Ltd [1923] 2 KB 832 at 841:

[T]he question is not to be solved by considering whether or not the person aggrieved can bring himself within some special class of the community or whether he is some designated individual. The duty may be of such paramount importance that it is owed to all the public. It would be strange if a less important duty, which is owed to a section of the public, may be enforced by an action, while a more important duty owed to the public at large cannot. The right of action does not depend on whether a statutory commandment or prohibition is pronounced for the benefit of the public or for the benefit of a class.

(g)    in the field of occupational safety, the fact that the statutory duty is imposed on employers who are, under the general law of negligence, bound to exercise due care has been relied upon as indicating the intention that a private remedy be available: O’Connor v SP Bray at 478;

(h)    when the question is whether an enactment of the Australian Parliament has created new rights and liabilities which would engage Ch III of the Constitution, there may be an expectation that the Parliament will clearly state its will: Byrne v Australian Airlines at 458 (McHugh and Gummow JJ). See also Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, (1999) 200 CLR 1 at [157] (Gummow J); Porter v OAMPS Ltd [2005] FCA 232, (2005) 215 ALR 327 at [110].

63    In relation to the 2014 Settlement, the applicants allege (or seek leave to amend so as to allege) breaches by the NLC of duties imposed by s 23(1)(a), (b), (c) and (e), of s 23(3)(a) and of s 23AA(3) and (5). As already indicated, the NLC’s submissions focussed on the alleged breach of s 23(3).

64    The NLC emphasised that the discharge of its functions under s 23(3) is conditioned on it being satisfied that (relevantly) the traditional owners understand the nature and purpose of the proposed action and consent to it, and not the existence in fact of that understanding and consent. It submitted that it is only necessary for its state of satisfaction to be “formed … reasonably and on a correct understanding of the law”, citing Graham v Minister for Immigration and Border Protection [2017] HCA 33, (2017) 91 ALJR 890 at [57]; Wilkie v The Commonwealth [2017] HCA 40, (2017) 91 ALJR 1035 at [109]; and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, (1999) 197 CLR 611 at [130]-[137]. The NLC then submitted that this form of statutory obligation militated against the existence of the required statutory intention.

65    In the context of a strike out application, I consider that the nature of the matter about which the NLC must be satisfied when discharging the statutory duty is relatively neutral on the question of whether a personal right of action is intended. To the extent to which it is a relevant matter going to the construction of the statute, it is far from decisive.

66    The NLC submitted next:

(i)    a Land Council can attain the satisfaction required by s 23(3) even though not every Traditional Owner of the relevant land has been identified and consulted for the purpose of ascertaining their understanding and consent;

(ii)    it is therefore likely to be difficult to establish a breach of the requirement to be satisfied as to the understanding and consent of relevant Traditional Owners as a group; and

(iii)    that augurs against the finding of an intent to create an actionable right to damages for breach of s 23(3).

67    In my view, the second of these propositions does not follow from the first, and the third does not follow from the second.

68    On the other hand, it may be pertinent that the duties relied upon by the applicants are directed to Traditional Aboriginal Owners of land as a group, and not to them as individuals within a class. The nature of the interest in Land Trust land vested in traditional Aboriginal owners supports that view. If that be correct, it would distinguish the ALRA from most, if not all, of the statutes considered in the authorities. This consideration adds some force to the NLC’s submissions that the appropriate remedy for a breach of s 23(3) is a declaration together with an order for reconsideration. It may also mean that if there is a right to claim damages, it is a right which reposes in the group as a whole and not in any individual within the group.

69    I mention that counsel for the applicants referred to s 71 of the ALRA as indicating that individuals, as well as groups, have rights under the Act. Section 71(1) provides:

Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.

70    While s 71(1) does bestow rights on individual Aboriginals, it is not a provision concerning Land Councils, and does not impose duties, at least of a positive kind, on them. In my view, s 71(1) does not avail the applicants presently.

71    In my view, it is not necessary presently to engage in the close examination of the ALRA necessary in order to determine whether a personal cause of action for breach is available to the applicants. There are three reasons for that:

(a)    the very complexity of the task suggests that it is a matter for trial; and

(b)    the determination lacks practical utility, for two reasons. First, for reasons which I will outline shortly, neither the 2SC nor the 3SC plead matters to support a claim that the applicants have suffered any actionable damage. As with claims for negligence, damage is the gist of an action for damages for breach of statutory duty. Secondly, and alternatively, if the two pleadings do contain a claim for actionable damage, it cannot (again for reasons to be outlined shortly), be concluded at this stage that the applicants have no reasonable prospect of establishing their claim in negligence. If there is to be a trial on the negligence cause of action, little is to be achieved by a summary judgment on the breach of statutory duty cause of action, given the substantial overlap in the evidence and submissions which will bear on each.

72    For these reasons, the NLC does not make out this basis for its application for summary judgment.

The common law negligence claim

73    The NLC made relatively few submissions in respect of its claim that the applicants’ claim in negligence has no reasonable prospect of success.

74    The existence or otherwise of a duty by the NLC to avoid the negligent infliction of economic loss will turn on the Court’s assessment of a number of factors, and not just on the terms of the ALRA. The authorities in which claims for pure economic loss have been upheld include Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65, (1976) 136 CLR 529; Perre v Apand Pty Ltd [1999] HCA 36, (1999) 198 CLR 180; Hill v Van Erp [1997] HCA 9, (1997) 188 CLR 159; and Bryan v Maloney [1995] HCA 17, (1995) 182 CLR 609. These authorities indicate that it is usually the presence in combination of a number of features which have been regarded as sufficient to give rise to the duty. Those features have included the reasonable foreseeability that action or inaction on the respondent’s part was likely to cause consequential economic loss to the class of persons of which the applicant was a member and, in some instances, the respondent’s actual knowledge that that would be so; that the number of persons in the class of which the applicant is a member is not indeterminate; that the economic loss was a direct and immediate consequence of the action or inaction in question; the vulnerability of the applicant to action or inaction by the respondent (in the sense of the inability of the applicant to protect itself from the consequences of the respondent’s want of reasonable care); satisfaction that the imposition of the duty would not impair the respondent’s legitimate pursuit of its own autonomous commercial interest; the contractual relationship, if any, between the applicant and the respondent; and the closeness of the relationship between them. In a case like the present, the assessment would also have to take account of the statutory regime in the ALRA and the responsibility imposed on the NLC under that statute.

75    The assessment of the relationship between the applicants and the NLC cannot be carried out in the abstract. It is to be expected that, in addition to the provisions of the ALRA, it will be informed by factual matters bearing upon the relationship between the two. These are matters for trial. In the context of a summary dismissal application in which all inferences reasonably open should be made in favour of the applicants, it cannot be concluded that their cause of action in negligence has no reasonable prospects of success.

Is there an actionable loss?

76    The applicants plead that the Site Nomination Deed provided the benefits which the Ngapa (Lauder) and neighbouring traditional owners “stood to gain” from the nomination of the Southern Site.

77    The benefits under the Site Nomination Deed comprised:

(i)    an “upfront” payment of $200,000 to the NLC “for the Traditional Aboriginal Owners and other Aboriginals concerned in relation to the Potential Site” (cl 4.3.1);

(ii)    the funding by the Commonwealth of “education and training scholarships” to a total value of $1 million for “Traditional Aboriginal Owners and other Aboriginals concerned” (cl 4.4.1) with the value of any individual scholarship limited to $20,000 per year and $60,000 over the duration of the scholarship (cl 4.4.3); and

(iii)    the payment by instalments of a further $11 million to the trustees of a charitable trust to be established in accordance with the requirements of Schedule One to the Site Nomination Deed (cll 4.1.1 and 5.1).

78    Clause 5.1.5 provided expressly that all payments under cl 5.1 were to be paid to the trustees of the charitable trust and to be held in accordance with the charitable trust.

79    Schedule One to the Site Nomination Deed provided that the trustee would be a “specialist corporate trustee” satisfactory to the Commonwealth, the NLC and the Muckaty Land Trust, but that other trustees may also be appointed with the agreement of all three parties.

80    Schedule One also specified that the deed establishing the charitable trust had to be consistent with a number of requirements, one of which was the clause as to purpose:

Purpose

The Trust will be established and maintained for the purposes of relieving poverty of, advancing education for, and other purposes beneficial to, affected Traditional Aboriginal Owners and other Aboriginals concerned in relation to the Selected Site and Access Road Area, and such other charitable purposes as the trustees may from time to time determine.

The trustees will be empowered to establish and maintain suitable and appropriate services, facilities, enterprises, property, infrastructure and other like benefits which collectively benefit the affected Traditional Aboriginal Owners and other Aboriginals concerned or their funds, authorities or institutions listed as charities under the relevant taxation legislation.

Particular purposes of the trust will be:

-    to advance the health, education and welfare of affected Traditional Aboriginal Owners and other Aboriginals concerned, to provide services, facilities, infrastructure, enterprises and like benefits on Aboriginal Land held by the Land Trust;

-    to improve and increase economic opportunities for and to initiate and support the development of economic enterprises by affected Traditional Aboriginal Owners and other Aboriginals concerned with a view to alleviating poverty and promoting other charitable purposes among them.

-    purposes incidental to the above.

Should these purposes fail, the trust deed will require that the trustees apply the funds for the benefit of other charities.

81    The applicants plead that, by its actions, the NLC “destroyed their financial interests” in the sum of $12 million for which the Site Nomination Deed provided. They claim, by way of relief, payment of that sum plus interest, in addition to aggravated or exemplary damages.

82    A fundamental difficulty for the applicants is that they do not plead any basis by which they as individuals could have received the $12 million or even part of that sum. In fact, their own pleading is inconsistent with them having an entitlement to payment of the $12 million. Paragraph [26] of the 2SC pleads:

Pursuant to a site nomination deed dated 18 June 2007 the Ngapa (Lauder) traditional owners (re the nominated site and an adjacent portion of the haulage road), Milwayi traditional Aboriginal owners (re a portion of the haulage road), and members of neighbouring groups stood to gain the sum of $12 million (with $11 million held in a charitable trust, and $1 million in the form of education scholarships) if the site was ultimately endorsed through Ministerial declaration by the Commonwealth. There was also an upfront payment of $200,000 which the NLC disbursed to members of local descent groups known as the Ngapa (Lauder), Ngapa (Foster), Wirntuku, Milwayi and Yapayapa groups in March and April 2008 (after consultations held on 18 March and 1 April 2008).

Particulars

...

83    Paragraph [26] in the proposed 3SC is in slightly modified form but the changes are not material for present purposes.

84    Thus, in relation to $11 million of the $12 million, the applicants’ own pleading indicates that it was not contemplated that any part of that sum would be paid to them or, for that matter, to the Ngapa (Lauder). Instead they plead that that sum was to be paid to a charitable trust. This pleading is consistent with the terms of the Site Nomination Deed itself. It contemplated, and indeed required, that the $11 million be paid to a charitable trust established for the purpose. Furthermore, the Deed provided expressly that the Commonwealth was not bound to pay any of the benefits under the Deed until a charitable trust in accordance with the requirements of Schedule One, or otherwise to the Commonwealth’s satisfaction, had been established (cl 4.1.1). It also provided expressly that all of the progressive payments of the $11 million would be paid to trustees of the charitable trust to be held in accordance with the trust (cl 5.1.5). In addition, the Site Nomination Deed set out purposes with which the purposes of the charitable trust had to be consistent.

85    Some features of charitable trusts are well known. They are purpose trusts and do not need to have any ascertainable human beneficiaries: Attorney-General (NSW) v Perpetual Trustee Co Ltd [1940] HCA 12; (1940) 63 CLR 209 at 222. In this respect they differ from private trusts whose objects are individuals, either named or answering a description, whether presently or at some future time: ibid. Thus, in BSH Holdings Pty Ltd v Commissioner of State Revenue [2000] VSC 302; (2000) 2 VR 454 at 456, Hansen J said that “[a] charitable trust does not have a beneficiary”. It is the Attorney-General, on behalf of the Crown, who has the power and duty to enforce the proper performance of charitable trusts.

86    The NLC referred to the summary concerning charitable trusts in Re Crown Forestry Rental Trust: Latimer v Commissioner of Inland Revenue [2004] UKPC 13; [2004] 4 All ER 558:

[29]    Their Lordships would begin by stating some general principles. It is of the essence of a charitable trust that it is a trust for the promotion or advancement of social purposes rather than a trust for individual beneficiaries. Of course, individuals may benefit from the application of trust moneys, but they are not, as individuals, the beneficiaries of the trust and may not enforce its terms. If the purposes of the trust are charitable, they may be enforced by the Attorney-General; if they are not charitable then, with certain anomalous exceptions, they are not enforceable and the trust is not valid.

87    The NLC submissions emphasised that the applicants will not be beneficiaries of the contemplated charitable trust and could not enforce its terms.

88    Accordingly, the submission of the NLC was that none of the applicants had an entitlement, let alone a prospect, of receiving directly the payment of the $11 million (or part of it) seems sound.

89    The applicants’ counsel sought to avoid these difficulties by a number of submissions made in the alternative:

(a)    the evidence concerning the charitable trust was incomplete because the NLC had not disclosed whether a charitable trust had been established and, if so, its form.

This particular submission seemed to suppose that the Court was being asked to express a conclusion on the evidence. That is not so. The difficulty for the applicants is that, on their own pleading, the $11 million was to be held in a charitable trust, and there is no pleading of material facts to support a claim that some portion of that amount, whether direct or indirect, was to be paid to them as individuals;

(b)    it cannot be concluded that the intention of the Site Nomination Deed was that there be established a charitable trust in the legal sense.

Again, it is to be remembered that it is the applicants’ own pleading which is in question. They have pleaded that the money was to be paid to a charitable trust without any suggestion that they were using that term in other than its well understood legal sense. Moreover, the terms of the Site Nomination Deed are strongly suggestive of a charitable trust in the legal sense being intended by the parties to the Deed;

(c)    the provisions in the Site Nomination Deed with respect to the charitable trust constituted no more than “an agreement to agree” which was unenforceable.

This was a somewhat surprising submission given that the entity to pay the money was the Commonwealth. However, even if there was no enforceable agreement with respect to the charitable trust, it would not follow that the applicants would have the entitlement to some or all of the payment of $11 million;

(d)    clause 15.6 of the Site Nomination Deed provided for the severability of provisions found to be invalid.

The unstated premise seemed to be that the provisions in the Site Nomination Deed concerning the establishment of a charitable trust could be found to be invalid, but that the Commonwealth’s obligation to pay $11 million together with scholarship benefits of $1 million remain extant and that, somehow or other, those monies would then be paid to the NLC. Then, so the argument ran, in accordance with s 35(4) of the ALRA, the NLC would be bound to pay the monies within six months of receipt to, or for the benefit of, the traditional owners.

There is a short answer to this submission. Neither the 2SC nor the 3SC pleads material facts to support it. In particular, there is no pleading of any basis upon which the obligation of the Commonwealth to pay the $11 million could be severed from the obligation to pay that amount to a charitable trust. The inter-relationship of the terms in the Site Nomination Deed concerning payment and the establishment of a charitable trust suggests that drafting any such pleading would be difficult: compare Brew v Whitlock [1967] VR 803 at 807. That is to say, it is not readily apparent how the obligation for the monies to be paid to a charitable trust could be struck out but the obligation to make the payment nevertheless survive. Furthermore, the applicants do not plead any facts to support a claim that, despite their own pleading and the terms of the Site Nomination Deed, there was a prospect of the $11 million being paid by the Commonwealth directly to the NLC in the event that the provisions concerning the charitable trust failed;

(e)    the NLC’s submission that the applicants have not suffered any actionable loss should fail because it is contingent upon a charitable trust having been established, and there is no evidence that that occurred.

In my view, whether or not the charitable trust was actually established is immaterial. What is pertinent is that the applicants themselves plead that a charitable trust was to be the entity to which the payment of $11 million was to be paid;

(f)    even if a charitable trust in the legal sense was contemplated, the fact that “beneficiaries” cannot sue to enforce it is different from the question of whether they can sue for the lost opportunity of receiving benefits from such a trust.

One may accept that that is so. But the applicants’ pleading is not based on loss of opportunity or loss of a chance. Their plea is for payment of the whole of the $12 million. There is no pleading of any facts to support their own personal lost opportunity to receive benefits from the charitable trust and, for the reasons which I will state below, there is no reasonable prospect of the applicants establishing that they, as individuals, ever had such an opportunity;

(g)    the applicants have “standing” to sue “for the destruction of their financial interests and economic loss – namely, the loss of a chance to receive benefits of $12 million or $17 million respectively, and to require a trust to be established on appropriate terms”.

The question of the applicants’ standing is different from the question of whether they have suffered actionable loss. I note again that the applicants do not plead their claim as a loss of opportunity or loss of chance claim; and

(h)    the applicants as potential trustees are appropriate persons to sue for “recovery” of the amounts contemplated by the Site Nomination Deed.

There is no pleading of any material facts to support this contention and, in any event, the issue is not one of the applicants’ standing.

90    The applicant have not pleaded a claim for damages on the basis of a loss of opportunity or chance. Their omission to do so is not a mere matter of form. The proper identification of the loss said to give rise to the cause of action is a matter of substance and, because of that, should be properly pleaded. As was observed by Gummow A-JC in Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 at [53]:

Where the act or omission complained of does not amount to interference with or impairment of an existing right, some care is needed in identifying the interest said to have been harmed by the defendant and said to be sufficient to attract the protection of the law in this field.

91    In any action for damages for negligence or breach of statutory duty, it is necessary for an applicant to prove some injury or harm. The loss of the opportunity to obtain a commercial advantage or benefit may be a form of actionable damage. Brennan J stated the principle in Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 364:

As a matter of common experience, opportunities to acquire commercial benefits are frequently valuable in themselves, not only when they will probably fructify in a financial return but also when they offer a substantial prospect of a financial return. The volatility of the market for speculative shares testifies to both the valuable character of commercial opportunities and the difficulty of assessing the value of opportunities which are subject to serious contingencies. Provided an opportunity offers a substantial, and not merely speculative, prospect of acquiring a benefit that the plaintiff sought to acquire or of avoiding a detriment that the plaintiff sought to avoid, the opportunity can be held to be valuable. And, if an opportunity is valuable, the loss of that opportunity is truly “lost” or “damaged” for the purposes of s 82(1) of the [Trade Practices Act 1974 (Cth)] and for the purposes of the law of torts.

(Emphasis in the original)

92    In those cases in which applicants seek to recover damages for the lost opportunity to obtain a commercial or financial benefit, they must establish, on the balance of probabilities, that they had the opportunity and that they have suffered its loss, that is, that they had a substantial prospect of obtaining a benefit which is no longer available to them by reason of the alleged negligence or breach of statutory duty of the respondent. When such a loss is proven, an assessment of the damages may take account of degrees of probability concerning the extent of the loss: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643.

93    In Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440, the plurality (French CJ, Kiefel and Keane JJ) summarised the position as follows:

[38]    It has been explained that to speak of loss as the loss of a "chance" distorts the question of causation. It involves the application of a lesser standard of proof than is required by the law … It confuses the issue of the loss caused with the issue of assessing damages which are said to flow from that loss. In that assessment a chance may be evaluated.

[39]    The respondent's case on causation is not improved by seeking to equate the chance spoken of with an opportunity lost. It may be accepted that an opportunity which is lost may be compensable in tort. But that is because the opportunity is itself of some value. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided.

[40]    It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded. …

[41]    The onus of proving causation of loss is not discharged by a finding that there was more than a negligible chance that the outcome would be favourable, or even by a finding that there was a substantial chance of such an outcome. The onus is only discharged where a plaintiff can prove that it was more probable than not that they would have received a valuable opportunity. …

(Emphasis added and citations omitted)

94    This means that if the applicants wished to claim damages for a loss of a valuable opportunity, they had to frame their pleading accordingly so as to identify the valuable opportunity said to have been lost. This would have included pleading, in accordance with rr 16.02 and 16.03 of the FCR, the material facts to support a claim of the loss of an identified valuable opportunity. The applicants have made no attempt to frame either the 2SC or the 3SC in this way.

95    In my view, the matters which the applicants have pleaded, together with the terms of the Site Nomination Deed, indicate that the applicants have no reasonable prospect of establishing that they, as individuals, ever had a valuable opportunity which has been lost by the actions of the NLC. The difficulties in their way are multiple. First, there is the acknowledgement by the parties to the Site Nomination Deed that nothing in it required the Minister to approve or declare an area of land under the 2005 Act. Secondly, it was open to the Minister to approve and declare land under the 2005 Act other than the site nominated by the NLC (cl 3.1.1 of the Site Nomination Deed). The same was true under the 2012 Act.

96    In effect, the applicants claim damages for the loss to them as individuals of $12 million said to result from the NLC’s agreement to the terms of the settlement of the Jangala Action by which the Commonwealth bound itself not to act upon the nomination of the Muckaty Station site. They do so in circumstances in which the Commonwealth had no obligation to declare that site as the site for the Repository, in which the Commonwealth had expressly reserved for itself the ability to nominate other sites, in which, even if the Southern Site was chosen as the site for the Repository, the contemplated payment of $11 million was to go to a charitable trust and not to the applicants, and in which it was contemplated that the trustees would achieve the purposes of the trust, not by payment to individuals, but by the establishment and maintenance of “suitable and appropriate services, facilities, enterprises, property, infrastructure and other like benefits” which would collectively benefit the affected traditional Aboriginal owners and other Aboriginals concerned “or their funds, authorities or institutions listed as charities under the relevant taxation legislation”.

97    In these circumstances, there is no reasonable prospect of the applicants ever establishing that they, as individuals, had a valuable opportunity of the kind to which Sellars v Adelaide Petroleum and Badenach v Calvert refer.

98    The applicants’ pleading and submissions, to which these reasons have been directed concern, in the main, the sum of $11 million. However, regard must also be had to the amount of $1 million to be available in the form of scholarships for education and training. It is to be noted that the Site Nomination Deed did not contemplate the Commonwealth paying $1 million to any person or entity (let alone to the charitable trust or the Ngapa (Lauder)) for this purpose. It provided only that the Commonwealth would “fund” education and training scholarships to a total value of $1 million. Further, the value of any individual scholarship was to be limited to $20,000 per annum and $60,000 over the duration of the scholarship. Further again, cl 4.4.4 of the Site Nomination Deed, provided that the number of scholarships and the duration, value and eligibility criteria would be the subject of negotiation between the Commonwealth and the NLC.

99    It is apparent therefore that, at best, the maximum benefit which any one of the applicants could have received if provided with a scholarship was $60,000. It is theoretically possible that the applicants have lost the chance to obtain such a scholarship and the benefits it may bring. However, the applicants have not pleaded such a case. As already noted, their claim is much more ambitious, being a claim for payment of the full amount of $12 million. There is no reasonable prospect of the applicants establishing an entitlement to payment of a lump sum of $1 million, being the cap on the amount of the Commonwealth funding of scholarships.

100    I mention that no claim is brought with respect to the $200,000 “upfront” payment. As is apparent from [26] of the 2SC set out earlier, the applicants accept that that amount was in fact paid by the Commonwealth and that it has been disbursed to members of the local descent groups.

101    It may be that it was the difficulties which the applicants perceived in establishing that they personally have suffered actionable loss which led to the application of 21 May 2018 for the proceedings to be constituted as a representative proceeding on behalf of the Ngapa (Lauder) and neighbouring traditional owners. As will be seen, I consider that that application should be refused for unrelated reasons. Accordingly, it is unnecessary to consider presently whether the difficulties which the applicants as individuals have in pleading an actionable loss can be overcome by a properly framed representative action pleading.

102    These matters also make it unnecessary to consider the adequacy of the conclusory pleading that the impugned conduct of the NLC “destroyed [the] financial interests” of the applicants.

The claim of misfeasance in public office

103    By [97M] and [97N] of the 3SC, the applicants wish to introduce a plea that the NLC committed misfeasance in public office in its actions in relation to the 2014 Settlement. The proposed pleading is (relevantly) as follows:

1.    In its capacity as [a Land Council] established by a notice issued by the Minister under s 21(1) of the [ALRA], the NLC is the holder of a public office.

2.    Pursuant to the [ALRA], the NLC performs functions, exercises powers, and fulfils duties in its capacity as the holder of a public office.

3.    The NLC settlement actions were done by the NLC in the purported discharge of its functions, exercise of powers and performance of duties.

4.    In performing the NLC settlement actions the NLC knew that they were in breach of its functions, powers and duties, and were beyond power due to the breach of ss 23(1)(a), (b), (c), (e), 23(3)(a) and 23AA(3) of the [ALRA].

5.    Alternatively, in performing the NLC settlement actions the NLC had reckless indifference as to whether they were in breach of its functions, powers and duties, and were beyond power due to breach of [the same provisions in the ALRA].

104    In [97N] of the 3SC, the applicants plead that the NLC’s misfeasance caused harm to the Ngapa (Lauder) and neighbouring traditional owners by way of economic loss in the sum of $12 million plus interest.

105    In Northern Territory of Australia v Mengel [1995] HCA 65; (1996) 185 CLR 307, Deane J summarised the elements of the tort of misfeasance in public office:

 (i)    an invalid or unauthorised act;

 (ii)    done maliciously;

 (iii)    by a public officer;

 (iv)    in the purported discharge of his or her public duties; and

(v)    which causes loss or harm to the plaintiff.

106    The NLC submitted that, for multiple reasons, leave should not be granted to the applicants to include this claim.

107    It submitted first that, as a corporate entity, it was not an “officer” at all, let alone a “public officer” and that the judgments in Mengel suggest that the tort may be committed only by a natural person. This submission is not supported by authority. In State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331, the Full Court of the Supreme Court of South Australia said, at [265]:

There is persuasive authority for the proposition that a body corporate … may be a public officer: Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 at 84; Jones v Swansea City Council [1990] 1 WLR 54 at 69, 71 Slade LJ, at 84-85 Nourse LJ, and 87 Stuart-Smith LJ and at [1990] 1 WLR 1453 at 1458 (House of Lords).

Counsel for the NLC submitted that Lampard-Trevorrow and the authorities to which it refers should be distinguished.

108    It is unnecessary to consider that submission as two further submissions of the NLC should be accepted. The first is the shortcomings in the applicants’ proposed pleading concerning the element of malice. In Mengel, at 370, Deane J elaborated the states of mind which may satisfy this essential element of the tort:

Such malice would exist if the act was done with an actual intention to cause such injury. The requirement of malice will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury. Finally, malice will exist if the act is done with reckless indifference or deliberate blindness to that invalidity or lack of power and that likely injury. Absent such an intention, such knowledge and such reckless indifference or deliberate blindness, the requirement of malice will not be satisfied.

109    Rule 16.43(1) of the FCR governs the pleading of a condition of a state of mind such as malice. It specifies:

A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

110    When an applicant’s plea is that a corporate entity had a particular state of mind, it is necessary to specify some person or persons so closely and relevantly connected with the entity that the state of mind of that person or those persons can be treated as being identified with it so that their state of mind can be treated as being the state of mind of the entity: Krakowski v Eurolynx Properties Ltd [1995] HCA 68; (1995) 183 CLR 563 at 582-3. That is what the Full Court did in Trevorrow, at [266].

111    As is apparent from the quoted pleading of the claim of misfeasance in public office, the 3SC does not contain these particulars. Given the serious nature of the allegation which the applicants make, this is a fundamental defect.

112    The second reason why the amendment should not be permitted, at least with respect to the individual applicants, is that they cannot, for the reasons stated earlier, establish that they have suffered any actionable loss.

Fiduciary duties

113    The applicants’ pleading in [97I] of the 3SC is that the NLC owed fiduciary duties to each of the Ngapa (Lauder) and the neighbouring traditional owners. The pleaded duties are as follows:

(a)    to protect, and act in accordance with, the interests of the Ngapa (Lauder) and neighbouring traditional owners;

(b)    to not place its own interests, including the reputational, financial, or political interests, in conflict with its duty and obligation to act in the interests of the Ngapa (Lauder) and neighbouring traditional owners;

(c)    to not take any action in any matter in connection with Aboriginal land in which the Ngapa (Lauder) and neighbouring traditional owners had an interest, unless satisfied that they understood the nature and purpose of the proposed action, and that the Ngapa (Lauder) traditional Aboriginal owners (as a group) consented to it;

(d)    to not take any action or allow any omission that adversely affected the advancement and protection of the interests of the Ngapa (Lauder) and neighbouring traditional owners in Aboriginal land in the NLC’s area.

114    In my view, there is some force in the NLC’s submission that it cannot reasonably be held to have owed fiduciary duties to each member of the Ngapa (Lauder) and the neighbouring traditional owners, the breach of which is capable of giving rise to an individual cause of action. The existence of a duty to each individual group member appears inconsistent with the duties imposed on the NLC by s 23(3) of the ALRA. Further, the existence of such a duty is not easily reconciled with the potential for conflict in a given set of circumstances between the duties owed to each individual. The position is in some respects analogous to that discussed in Lindner v Corporation of the City of Marion [2015] SASC 152.

115    I did not understand counsel for the applicants to argue seriously that the alleged fiduciary duties may be owed to each individual group member. Instead, he submitted that the NLC owed fiduciary duties to the Ngapa (Lauder) as a group and that it was at least reasonably arguable that the NLC had breached those duties in its actions in relation to the 2014 Settlement.

116    Counsel for the NLC accepted that it is reasonably arguable that the NLC owes fiduciary duties to traditional owners when representing them in dealings with third parties.

117    In my view, it is not necessary to consider these issues further or to reach a concluded view. Even if, as seems unlikely, the NLC did owe fiduciary duties to the applicants as individuals, they cannot establish that, as individuals, they have suffered a loss which is capable of being the subject of an award of equitable compensation.

118    I appreciate that the applicants also seek to introduce the breach of fiduciary duty claim as part of their pleading of the proposed representative action. However, as will be seen, I consider that the applicants should not be granted leave to amend the proceedings in that way, so that it is not necessary to express a view about whether the Ngapa (Lauder) and the neighbouring traditional owners as a group may be found to have been owed fiduciary duties and that NLC may be found to have breached those duties.

The No Nomination Claim

119    The applicants’ claim with respect to the absence of a nomination under the 2012 Act by the NLC of a further site on Muckaty Station for the Repository arises out of the circumstances occurring after the 2014 Settlement.

120    It is appropriate at the outset to note some of the provisions in the 2012 Act.

121    Section 3 of the 2012 Act stated its object as being the provision for the selection of a site for a radioactive waste management facility on voluntarily nominated land, and the establishment and operation of such a facility on the selected site. Section 5(1) provided that a Land Council may, before the “general nomination start time” nominate Aboriginal land in the area of the Land Council as a potential site. The “general nomination start time” was the date on which the Minister made a declaration under s 6 that nominations of potential sites may be made under s 7 (12 December 2014). Land Councils were not included in the class of persons who could make a nomination of land pursuant to s 7. Section 9(2) of the 2012 Act provided expressly that the Minister must not, after the general nomination start time, approve land nominated under s 5 by a Land Council as a site. The effect was that the time within which any nomination of an alternative site on Muckaty Station could be made concluded on 12 December 2014.

122    Section 10 of the 2012 Act provided that, before the Minister decided to make a declaration under s 6, the Minister had to give notice in writing to each Land Council of his or her intention to make the declaration under s 6 and to invite comments from the Land Council on the proposed declaration.

123    Section 14 of the 2012 Act empowered the Minister to make a declaration selecting a site as the site for a repository. It provided:

(2)    Subject to section 18, the Minister may, in his or her absolute discretion, declare in writing that the site approved by the Minister, or a specified part the site, is selected as the site for a facility. …

(Emphasis added)

Section 14(3) prohibited the Minister from making a declaration under subs (2) in relation to land nominated as a site under s 5, after the general nomination start time.

124    The effect of the applicants’ pleading is:

(a)    the Commonwealth had indicated willingness to consider a further site (the Northern Site) on Muckaty Station, but, in accordance with s 5(1) of the 2012 Act, a nomination in respect of that site had to be made before the “general nomination start date”;

(b)    on 12 December 2014, the Commonwealth Minister for Resources had made a declaration of the “general nomination start time”; and

(c)    the declaration on 12 December 2014 had the effect of terminating the period in which the Northern Site could have been nominated and this meant in turn that it was no longer possible for that Site or any other Aboriginal land to be nominated as the site for the Repository.

125    The applicants claim that by failing to complete the consultation process for the nomination of the Northern Site before the Minister’s declaration on 12 December 2014 and/or by failing to seek an extension of time in which to do so, the NLC breached the duty of care, and statutory duties it owed to them. In the 3SC, it wishes to allege that these duties, and fiduciary duties, were also owed to the Ngapa (Lauder) and to other interested Aboriginal persons.

126    The consequence of the NLC’s inaction, the applicants allege, is that “the NLC destroyed [the] financial interests and caused economic loss to them”, being the loss of $17 million in addition to interest which the Commonwealth would have paid if the alternative site had been accepted by the Commonwealth as the site for the Repository.

127    The plea in [54] of the 2SC and 3SC is that the $17 million offered in respect of the alternative site was for it to be held in a charitable trust.

128    In the outline of submissions provided in advance of the hearing, the applicants’ counsel foreshadowed seeking leave to amend [54] of the 3SC so as to remove the reference to the $17 million being held in “a charitable trust”. That leave would also have been required, strictly speaking, in relation to [54] of the 2SC. It may also have required leave to withdraw an admission (r 22.06). However, counsel did not make the foreshadowed application and I have taken it not to have been pressed.

129    The statutory duties said by the applicants to have been breached by the NLC in its No Nomination Claim included non-compliance with s 23AA(4). That subsection imposes obligations on a Land Council with respect to the timely performance of its duties:

Functions to be performed in a timely manner

(4)    A Land Council must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:

  (a)    time limits under this Act; or

(b)    time limits under another law of the Commonwealth or a law of the Northern Territory that are relevant to the performance of its functions.

130    The reasons given in relation to the 2014 Settlement concerning the alleged breach of common law and statutory duties are equally applicable in relation to the applicants’ claims concerning the Northern Site. In addition, it may well be, as the NLC submitted, that s 23AA(4) is not expressed in terms suggestive of a personal right of action arising from a breach, but it is not necessary to express a concluded view about that.

131    In my opinion, it can be concluded that the applicants have no reasonable prospect of successfully prosecuting an action with respect to the absence of nomination of the Northern Site or any other alternative site because they cannot show that they, as individuals, have suffered actionable loss. The reasons for this conclusion are, in substance, the same as those set out above in relation to the claim in respect of the 2014 Settlement.

132    The applicants do not plead any basis upon which may support a claim that they had an entitlement themselves to payment of $17 million in respect of the alternative site, or even that they had an entitlement to payment of some portion of that sum. As with the 2014 Settlement, the applicants have not pleaded a case based on loss of opportunity to obtain a financial benefit. Even if their pleadings can be characterised as containing such a claim, they do not support a case that the applicants themselves have lost something of real value. At best, their claim can only be that, if several contingencies had fallen into place, the Ngapa (Lauder) as a group may have derived benefits.

133    The difficulties for the applicants in showing, on the balance of probabilities that they had something of real value which has been lost by the alleged inaction of the NLC is illustrated by an identification of some of the contingencies:

(a)    the traditional Aboriginal owners may not have consented, as a group, to the proposed nomination being made (that consent, as a group, being determined in accordance with s 77A of the ALRA) (2012 Act s 5(2)(f));

(b)    any Aboriginal community or group affected by the proposed nomination may, on consultation, have expressed opposition to the nomination (ibid);

(c)    the proposed site may have contained a sacred site within the meaning of the ALRA which may have made it inappropriate for selection as the site for the Repository (s 5(2)(e));

(d)    the NLC may not have been able to satisfy a request by the Minister for further information (s 5(3));

(e)    despite its “best efforts” the NLC may not have been able to perform its functions of consultation, providing adequate opportunities for views to be expressed, ensuring that the traditional owners understood the nature and effect of the proposed nomination and so on in the time allowed for a nomination (s 5(2)(f));

(f)    even had a nomination been made, the Minister may, in his or her absolute discretion, have decided not to approve it (s 9);

(g)    even had the Minister approved the nominated land, the Minister may not, in his or her absolute discretion, have declared the nominated site selected as the site for the facility (s 14); and

(h)    even if the Minister had declared the site under s 14 of the 2012 Act, the provision for compensation under s 36 of that Act may not have involved the payment to individual members of the Ngapa (Lauder) Group. As the applicants’ own pleading alleges, the $17 million said to have been offered by the Commonwealth in respect of the Northern Site was to be held in a charitable trust of which, for the reasons stated above, the applicants could not be individual beneficiaries.

134    Although it is not necessary to rely on this, I add that the uncertainty of the position is underlined by the statement of the Minister for Industry in a letter of 30 September 2014 to the NLC concerning its possible nomination of another site:

A benefits package can be negotiated and quantified once the details of a nomination have been provided to the Australian Government. This would occur during development of a formal agreement and prior to any acceptance of the nomination. I encourage traditional owners to consider what they would like to see in a benefits package and include this information in any proposal. No action would be taken by the Government on a nomination until a formal agreement is reached.

(Emphasis added)

135    In these circumstances, I consider that it is not reasonably arguable that the applicants as individuals had something of real financial value, of the kind discussed by Brennan J in Sellars v Adelaide Petroleum, which has been lost.

136    For these reasons I conclude that the applicants have no reasonable prospect of establishing that they have suffered the loss of a valuable opportunity which can provide the basis for a claim for damages or for compensation for breach of fiduciary duty in respect of the Northern Site. Put more shortly, it can be said that the applicants have no reasonable prospect of successfully prosecuting the No Nomination Claim.

Representative action

137    By their proposed Amended Interlocutory Application, the applicants seek leave to have the proceeding constituted as a representative action pursuant to Pt IVA of the FCA Act. The 3SC contains the proposed pleading of the representative claim.

138    Apart from annexing copies of the applicants’ proposed Originating Application and the 3SC, the affidavit from the applicants’ solicitor supporting the application for the proceedings to be constituted as a representative action states only:

The Applicants, after having received advice from me personally on Saturday, 12 May 2018, have instructed and confirmed that they wish the proceeding to be a representative action for and on behalf of the Ngapa (Lauder) and neighbouring traditional owners, as defined in the proposed Third Statement of Claim (which include the Applicants themselves).

139    The relevant paragraphs in the 3SC state as follows:

[2C]    The First, Second and Third Applicants represent the traditional Aboriginal owners of, and other Aboriginals interested in:

a.    the nominated site and the portion of the sealed haulage road referred to at paragraph 2A; and

b.    the proposed nomination, the portion of existing unsealed road referred to at subparagraph 2Ba, and the potential access route referred to at subparagraph 2Bb;

and have a sufficient interest to maintain and conduct this proceedings as a representative proceeding on behalf of all these people (“the Ngapa (Lauder) and neighbouring traditional owners”).

[2D]    All of the claims made in this proceeding are made by the First, Second and Third Applicants on behalf of all the Ngapa (Lauder) and neighbouring traditional owners.

[2E]    All of the questions [of] fact and law raised by this proceeding are common to all of the Ngapa (Lauder) and neighbouring traditional owners.

(Emphasis in the original)

140    Part IVA of the FCA Act permits proceedings to be “commenced” as representative actions. Section 33C provides for the circumstances in which an action may be commenced as a representative action. Subsection (1) provides:

(1)    Subject to this Part, where:

  (a)    7 or more persons have claims against the same person; and

(b)    the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

141    Section 33H contains requirements with respect to the content of an application commencing a proceeding as a representative action. It provides:

33H Originating process

(1)    An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:

(a)    describe or otherwise identify the group members to whom the proceeding relates; and

(b)    specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c)    specify the questions of law or fact common to the claims of the group members.

(2)    In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.

142    Compliance with s 33H is important because it enables the Court and the respondent(s) to the proceedings to determine whether the requirements of s 33C are satisfied, enables individuals to ascertain whether they are group members (subpara (1)(a)) and, if so, to decide whether or not to opt out of the proceedings: Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61 at [19]-[23]. The identification required by s 33H(1)(c) of the common questions of law and fact has been said to be “of the greatest importance”: Bright v Femcare Ltd [2002] FCAFC 243; (2009) 195 ALR 574 at [14].

143    I consider that a number of matters indicate that it is inappropriate to accede to the applicants’ application for the proceedings to be amended so as to be constituted as a representative action.

144    First, I accept the NLC’s submission that the group is ill-defined. The description of the group as contained in [2C]-[2E] of the 3SC is “the Ngapa (Lauder) and neighbouring traditional owners”. These are identified as the traditional Aboriginal owners of, and “other Aboriginals interested in” the Southern Site and an associated access road and in the Northern Site and its associated access roads. The uncertainty in the description of the group arises from the use of the term “other Aboriginals interested in”. It can be inferred that that term is used with the same meaning which it has in ss 23(1), 23(3) and 23AA of the ALRA. It is apparent that the term must extend to a wider range of people than the traditional Aboriginal owners, but the extent to which it does so is uncertain. Neither counsel was aware of any judicial adumbration of the term.

145    The uncertainty has the consequence that the group description does not enable the NLC to determine who is and who is not within the group. Nor are potential group members able to determine whether they are members of the represented group.

146    The applicants’ counsel sought to answer this critique of the NLC by submitting that the NLC is well aware of the members of the class. Counsel referred in support to the allegations in the 2SC to the effect that the NLC had determined, before June 2007, who were the “traditional Aboriginal owners” of the Southern Site and of portions of the haulage road providing access to it. He also referred to the fact that, in its administration of the Land Trust, the NLC had disbursed monies for approximately 20 years to the members of five Aboriginal groups, including the funds it had received in connection with the 1996 Darwin gas pipeline, the 1998 Alice Springs to Darwin railway, the 2004 haulage road for the Bootu Creek manganese mine, and for mineral exploration agreements since 1999.

147    In my opinion, this response of the applicants does not meet the NLC’s critique. The obligation with respect to disbursal of funds to which counsel referred is the obligation imposed by s 35(4) of the ALRA. That is an obligation to make payments to or for the benefit of “the traditional Aboriginal owners” of the land. The represented class pleaded by the applicants extends beyond those persons and includes “any other Aboriginals interested in the land”. Therein lies the uncertainty.

148    Secondly, as defined, the group would include persons, who do not have claims against the NLC. There is evidence that a number of persons, who are apparently within the group description, had indicated at various times before 2014 their opposition to the location of a radioactive waste repository on Muckaty Station. It seems that they supported the NLC’s conduct in making the 2014 Settlement. It is difficult to see how those persons may have a claim against the NLC of the kind which the applicants wish to pursue. In addition, the applicants in the Jangala Action cannot have a claim against the NLC. Contrary to the applicants’ submission, that will be so whatever the credibility or reliability of the evidence they gave in the hearing before North J. The opt out procedure is not appropriate for persons in these categories, as that procedure is intended for those who would otherwise be within the named group.

149    Thirdly, it is apparent that the applicants seek to have their proceedings constituted as a representative action instead of commencing a fresh proceeding, in order to avoid the effect of s 12(1) of the Limitation Act (NT) which fixes a three year limitation period. The applicants wish the amendments to take effect from the date on which they commenced the proceedings, namely, 20 June 2017, the last day of the three year period which commenced on the day North J made his orders.

150    The practice of ordering that amendments to pleadings take effect from the date of commencement of proceedings is common in ordinary inter partes actions, including when a new respondent or a new cause of action is added: Street & 7 v Luna Park Sydney Pty Ltd [2006] NSWSC 230 at [46]-[47]. The position is different, however, when the effect of an amendment is to add a new party. In those circumstances, courts usually order that the amendment take effect only from the date of the joinder: ibid. This principle has been applied in the class action context and, indeed, it has been held that amendments to group membership should take effect only from the date of the amendment: Ethicon Sàrl v Gill [2018] FCAFC 137 at [47]-[52]; Capic v Ford Motor Company of Australia Limited (No 7) [2018] FCA 1631 at [5].

151    Thus, even if the Court did order that the proceedings be amended so as to be constituted as a representative action, the amendment would operate only from the date of the Court’s order. This would not provide the advantage sought by the applicants, as the claims of the group members would be out of time. Conversely, the group members will not be disadvantaged by the refusal of the amendment, as it will be open to them, if so advised, to commence separate proceedings, albeit out of time.

152    For these reasons, the application to have the proceedings amended so as to be constituted as a representative action under Pt IVA of the FCA Act is refused.

The North J orders

153    In a series of paragraphs in the 2SC and 3SC ([86]-[97]), the applicants allege that the NLC was in breach of common law or statutory duties by failing to inform North J on 20 June 2014 that he lacked the jurisdiction to note the undertaking by the Commonwealth not to act upon the 2007 Nomination or its approval of that nomination. They submitted that the Court’s noting of the undertaking gave it the status of an injunction. The submission was that, as each of the Commonwealth and the NLC had maintained that there had been no defect in the 2007 Nomination, there were no “inculpatory facts” to enliven the Court’s “jurisdiction” to note the undertaking.

154    The applicants referred in support to the decision of French J in Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323. See also Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17, (2009) 174 FCR 237 at [97]-[98]; Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 at 206; Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 1087, (2015) 331 ALR 76; and Inghams Enterprises Pty Ltd v Vojnikovich [2014] NSWSC 1519. In Kovalev, French J said at [11]:

It is well-established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make … The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so. … It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal.

155    As I am satisfied that the paragraphs in the 2SC impugning the validity of the orders made by North J in relation to the settlement of the Jangala Action should be struck out in any event, it is not necessary to consider whether the applicants’ underlying contentions concerning the validity of those orders is correct or otherwise.

156    A fundamental difficulty for the applicants is that their own pleading does not identify any loss resulting from the impugned conduct of the NLC before North J, and it is indeed inconsistent with that conduct being causative of any loss.

157    In circumstances in which it is plain that the parties to the Jangala Action had reached a settlement which was binding independently of any subsequent Court orders, the validity or otherwise of those orders is a matter of no consequence. Neither the 2SC nor the 3SC pleads any loss to the applicants arising only by reason of the orders made by North J (as distinct from the antecedent settlement reached between the parties to the Jangala Action).

158    Accordingly, these paragraphs in the 2SC should be struck out in any event.

Conclusion

159    For the reasons stated above, I consider that it can be concluded that the applicants, as individuals, have no reasonable prospect of successfully prosecuting the pleaded claims against the NLC. In particular, they will not be able to establish that they have suffered actionable loss.

160    The applicants should not be permitted to amend the Originating Application or the 2SC so as to constitute the proceedings as a representative action under Pt IVA of the FCA Act. Nor should they be permitted to amend the 2SC in the manner proposed.

161    This means that the Interlocutory Application of the applicants filed on 21 May 2018 is wholly refused.

162    It also means that the application in [1] of the NLC’s Interlocutory Application of 22 December 2017 should succeed and that summary judgment should be entered in favour of the NLC dismissing the application.

163    I will hear from the parties as to costs.

Associate:

Dated:    22 November 2018