Federal Court of Australia

QGC Pty Limited v Alberts [2020] FCA 1869

ORDERS

THE COURT ORDERS THAT:

1.    The further amended interlocutory application of the cross-claimants dated 21 January 2020 be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The cross-claimants in their further amended interlocutory application seek orders pursuant to rr 9.05, 9.09 or 9.11 of the Federal Court Rules 2011 that they be substituted for their relatives, who have either passed away or lack capacity, to act as a party in these proceedings. Each of the parties to the proceedings other than the applicant, QGC Pty Limited, and the three respondent corporations, BCJWY Aboriginal Society Limited (in liq), Murra Downs Limited and Boonyi Downs Pty Limited, was an individual who was a personal signatory to the Indigenous Land Use Agreement (ILUA). The ILUA was between QGC and 14 individuals who were collectively called the “Native Title Party” in it.

2    The ILUA was an area agreement within the meaning of s 24CA of the Native Title Act 1993 (Cth). Section 24CD(1) of the Act required that all persons in the native title group in relation to the area be parties to the ILUA. The ILUA was registered as QI2010/006 on 22 December 2010 in the Register of Indigenous Land Use Agreements under s 199B of the Act.

3    The ILUA provided relevantly:

Parties

QGC Pty Limited ACN 089 642 553 for and on behalf of QGC

Such of the following people who claim to hold Native Title in some or all of the ILUA Area who execute the ILUA within 48 hours of its authorisation: no more than one representative of each of the Warner, Daylight, Bundi, Davis, Jerome, Darlo(w), Williams, Waddy, Queary (Cressbrook), Henry and Watcho/Barney families

(collectively, the Native Title Party)

…

1.1 Definitions

In this document:

…

Families    means the Warner, Daylight, Bundi, Davis, Jerome, Darlo(w), Williams, Waddy, Queary (Cressbrook), Henry and Watcho/Barney families

Family Group    means the Barunggam, Cobble Cobble, Jarowair, Western Wakka Wakka and Yiman groups, with which some of the Families identify.

Native Title Group    means those people who hold or may hold Native Title in the ILUA Area.

1.2 Interpretation

In this Agreement:

…

(h)    a Party to this Agreement includes the executors, administrators, successors and permitted assigns of that Party;

…

2 Authority to enter into agreement

…

(b)    The Native Title Party and the Native Title Group represent and warrant that:

(i)    all reasonable efforts have been made by them to ensure that all persons who hold or may hold Native Title in relation to land and waters in the ILUA Area have been identified;

(ii)    the persons so identified have authorised the making of this Agreement in accordance with section 251A NTA [scil: the Act]; and

(iii)    each member of the Native Title Party has authority to enter into this Agreement on behalf of his or her Family.

(emphasis other than in headings added)

4    In the event, the 14 individuals who signed the ILUA did so on behalf of various of the family groups. In order for the ILUA to be registered, as it was, s 24CG(3) of the Act required that it include a statement to the effect of cl 2(b)

The issues

5    Relevantly, the cross-claimants seek orders to substitute for each of the four deceased or incapacitated current parties to the proceeding, who was an original signatory of the ILUA, a child or family member of that party (the joinder applicants). Each of the joinder applicants asserted, in separate documents headed “Authority”, that he or she:

    was a child or relative of the original signatory;

    was either the “successor” or “natural successor” to the original signatory;

    had a right to be heard and make decisions on behalf of the original signatory as his or her “successor”, and on behalf of the relevant family or family groups whom the parent represented or identified with under, or when signing, the ILUA; and

    had authorised Trevor Hauff or Trevor Hauff Lawyers, to act on his or her behalf in making the application for joinder and, thereafter, pursue whatever rights he or she might wish to assert as a party.

6    Kylie Jerome and Isobel Rabbitt are two other signatories to the ILUA and parties to the proceeding. They oppose the grant of relief sought in the interlocutory application on the basis that the evidence adduced in support of the claim for the child to be substituted for his or her deceased or incapable parent failed to establish any basis for joinder.

The cross-claimants’ submissions

7    The cross claimants asserted that there was no process under the ILUA by which any person who, in fact, signed as one of the native title party required any particular form of authorisation or status beyond merely signing it, and that, therefore, no corresponding restriction ought exist for each of them in seeking, in effect, to replace their parent as a party both to the ILUA and to the proceeding. They contended that the ILUA and the Court’s Rules did not set any preconditions that could preclude each of them asserting an entitlement to be joined as a party to the proceedings and to act as the “successor” of the respective parent under the ILUA.

Consideration

8    In my opinion, there is no basis on which r 9.05 could support the joinder applicants being made a party to the proceeding. That is because none of the joinder applicants had any status to suggest that he or she ought to have been joined originally as a party to the proceeding or was a person whose joinder is necessary to ensure that each issue in dispute is able to be finally determined, or otherwise falls within the requirements of r 9.05(1)(b). There was no evidence of a grant of probate or letters of administration in favour of any joinder applicant who sought to be joined as a result of their parent’s death or evidence of a legal right to act on behalf of a living, but incapable, parent, so as to demonstrate any basis that could avail their position in support of this application.

9    Moreover, there is no basis under the terms of the ILUA, by which any of the persons who formed the native title party, who were signatories to it on behalf of family groups as provided in cl 2(b)(iii), had a right transmissible on their death to a member of their family or anyone else capable of being a devise by will or enforceable upon an intestacy.

10    The definition of a “party” in cl 1.2(h) of the ILUA includes “successors”. However, in my opinion, the word “successors” must be construed in the context of cl 2(b) of the ILUA. The ILUA is a document given statutory force that operates to confer benefits, through distributions by a trustee company, upon family groups represented by particular individuals who signed it. In that context, I do not consider that any of the signatories comprising the native title party is a person who could create a “successor” for the purposes of the ILUA by use of a devise in a testamentary instrument or by operation of law following that person dying intestate.

11    The 14 individuals comprising the native title party, as defined in the ILUA, were akin to the holders of an office under it by reason of the authority to sign it conferred by the relevant family pursuant to cl 2(b)(iii). In my opinion, the purpose of the use of the word “successors” in cl 1.2(h) in the definition of “party” must be to ensure that a person can replace the deceased or incapable parent’s position as a representative of a particular family group or groups on whose behalf he or she signed the ILUA as reflected in cl 2(b)(iii) and s 24CG(3). The situation is similar to that described by Farwell J in In re Delany, Conoley v Quick [1902] 2 Ch 642 at 646, where his Lordship said of a legacy in a will:

the legacy is given to the three ladies as holders of offices and for the benefit of the association in which they held office. The primary meaning of the word “successors” is persons in succession. The persons named were known to the testator to be holders of offices in the association, and the only succession to which he can refer is the succession to those offices. The persons named are not intended to take any personal benefit, but are designated only as the then holders of office, and the gift to them depended on their continuance in such office.

(emphasis added)

12    In my opinion, the structure of the ILUA reflects the same intention of who can be a “successor” of a party. The ILUA was intended to be a means for distributing monetary benefits that QGC sought to pay to persons claiming to hold native title rights and interests in the area the subject of the ILUA, which was an area agreement under Subdiv C of Div 3 of Part 2 of the Native Title Act. Apart from his or her self-assertion, that in itself had no probative value, there was no evidence of any basis upon which any of the joinder applicants claimed to be a “successor” of his or her parent. I rejected that evidence being admitted for the reasons I have given above.

Conclusion

13    It follows that there is no basis to grant any of the relief sought in the interlocutory application and it must be dismissed.

Associate:

Dated:    23 December 2020

SCHEDULE OF PARTIES