Federal Court of Australia

QGC Pty Limited v Alberts (No 2) [2021] FCA 540

ORDERS

THE COURT DECLARES THAT:

1.    Clause 2.1(b) of annexure 3 in the Indigenous Land Use Agreement (ILUA) registered on 22 December 2010 as QI2010/006 on the Register of Indigenous Land Use Agreements under s 199B of the Native Title Act 1993 (Cth), on its proper construction, includes after the words “the establishment of the Nominated Entity, if there is no Nominated Entity at the Authorisation Date” the following implied term, namely “or, if at any time thereafter, the Nominated Entity for any reason has ceased to be capable of acting in accordance with clause 1.2.”

THE COURT ORDERS THAT:

2.    On or before 14 May 2021, the parties provide to the Associate to Rares J short minutes of order to give effect to the proposal that the National Native Title Tribunal and Representative Body participate in achieving meetings of the families for the purpose of establishing one or more nominated entities under annexure 3 to the ILUA to replace the twelfth respondent.

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    At an authorisation meeting held on 13 March 2010, members of at least 10 of 11 named families authorised the entry into an Indigenous Land Use Agreement (the ILUA), the details of which the Registrar of the National Native Title Tribunal registered as QI2010/006 on 22 December 2010 on the Register of Indigenous Land Use Agreements under s 199B of the Native Title Act 1993 (Cth). I have already resolved two substantive disputes in relation to it: first, in Conlon v QGC Pty Limited (No 2) (2017) 359 ALR 460 and, secondly, in this proceeding in QGC Pty Limited v Alberts [2020] FCA 1869. I will draw on those judgments, including for the legislative scheme (see 359 ALR at 462–464 [6]–[11]), in what I say in the introductory part of these reasons.

Introduction

The legislative scheme

2    It is useful to describe the process for making ILUAs of the kind concerned here in order to understand how the issues arise. It is common ground that the ILUA is an area agreement covered by Div 3 of Pt 2 of the Act. Relevantly s 24CD provides:

24CD    Parties to area agreements

Native title group to be parties

(1)    All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

…

Native title group where no registered claimant or body corporate

(3)    If subsection (2) does not apply, the native title group consists of one or more of the following:

(a)    any person who claims to hold native title in relation to land or waters in the area;

(b)    any representative Aboriginal/Torres Strait Islander body for the area.

…

Other parties

(6)    Any other person may be a party to the agreement.

(emphasis added)

3    Section 251A provides:

251A    Authorising the making of indigenous land use agreements

(1)    For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind –– the persons authorise the making of the agreement in accordance with that process; or

(b)    where there is no such process –– the persons authorise the making     of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

(2)    Without limiting subsection (1), when authorising the making of the agreement, a native title claim group may do either or both of the following:

(a)    nominate one or more of the persons who comprise the registered native title claimant for the group to be a party or parties to the agreement;

(b)    specify a process for determining which of the persons who comprise the registered native title claimant for the group is to be a party, or are to be parties, to the agreement.

(emphasis added)

4    The infelicitously drafted expression “persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement” used in s 251A(1) must be read with s 24CD(3) to include persons who not only hold, but also those who claim to hold, native title. Any party to an ILUA, if all the parties agree, can apply in writing to the Registrar for it to be registered on the Register. Relevantly, s 24CG(3)(b) requires:

24CG    Application for registration of area agreements

Certificate or statement to accompany application in certain cases

(3)    Also, the application must either:

…

(b)    include a statement to the effect that the following requirements have been met:

(i)    all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii)    all of the persons so identified have authorised the making of the agreement;

Note:     The word authorise is defined in subsection 251A(1).

    …

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

(non-italic emphasis added)

5    The Registrar may only register an ILUA (such as the ILUA the subject of this proceeding) that contains a statement as mentioned in s 24CG(3)(b) if, among other conditions, the Registrar considers that the requirements of s 24CG(3)(b) have been met (s 24CL(1) and (3)); namely, that all reasonable efforts have been made to ensure the identification of all persons who claim to, or may, hold native title in relation to land or waters in the area covered by the ILUA, and that those persons authorised its making: see Kemppi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423 at 447–449 [59]–[64] per Rares ACJ and Robertson J. If, as here, s 24CL(1) requires the Registrar to register an ILUA, he or she must do so by entering in the Register, among others, the name of each party to the ILUA, an address at which that party can be contacted, and any other details that the Registrar considers appropriate (s 199B(1) and (2)).

6    The Act gives registration of an ILUA particular significance under Subdiv E of Div 3 of Pt 2. It prescribed, relevantly, in s 24EA(1) and (2):

Subdivision E – Effect of registration of indigenous land use agreements

24EA    Contractual effect of registered agreement

(1)    While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:

(a)    it were a contract among the parties to the agreement; and

(b)    all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.

Note:    Section 199B specifies the details of the agreement that are required to be entered on the Register.

Only certain persons bound by agreement

(2)    To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.

…

(emphasis added)

Procedural matters

7    In the event, in March 2010, 14 persons signed the ILUA as representatives of various families named in the definition of the collective term “Native Title Party”. The area covered by the ILUA is significant, amounting to 20,930 square kilometres, according to its registration in the Tribunal. The ILUA provided that the parties to it, subject to the effect of s 24EA(1) of the Act, were QGC Pty Ltd and the native title party, comprising no more than one representative of each of the 11 named families who signed the ILUA.

8    None of the parties has raised any issue about the fact that, despite the restriction to one representative of each family in the definition of the native title party in the ILUA, in four instances two members of one family signed, namely, Patricia Conlon and Margaret McLeod signed for the Darlo(w) family of the Western Wakka Wakka family group, Lillian Colonel and Kylie Jerome for the Jerome family of the Jarowair family group, Elizabeth Johnson and Kathleen Ott for the Waddy family of the Yiman family group and the late Clarissa Malone (who died on 14 March 2013 but who is named as the sixth respondent) and William Davis for the Davis family of the Cobble Cobble family group. It may be that no representative of the Watcho/Barney family signed the ILUA although it is not necessary to make a finding about that.

9    The table below sets out their names and the history of when any of them died, lost capacity or made a submitting appearance:

10    On 21 December 2020, I determined one of the four issues in this proceeding that I had identified in my orders of 20 December 2019 as being the issues for determination, being what was the proper construction of cl 1.2(h) of the ILUA and whether that clause or any other provision in the ILUA otherwise permits substitution of another person in place of one of the original signatories who is either deceased or under an incapacity: QGC [2020] FCA 1869. In that judgment, I found that persons who self-nominated themselves as “successors” were not capable of being substituted in place of an original signatory who was either deceased or lacked capacity.

11    The protagonists at the trial were the existing cross-claimants, comprising Ms Alberts, Ms Booth, Ms Conlon, Ms Johnston, Murra Downs Pty Ltd and Boonyi Downs Pty Ltd (and included, while they were alive and or had capacity, Ms Colonel and Mr Bone), and two respondents, Ms Jerome and, until I ruled yesterday that she lacked capacity, Isobel Rabbitt. Trevor Hauff of Trevor Hauff Lawyers (Mr Hauff’s firm) represented the cross-claimants. QGC interpleaded, but at my urging appeared in a capacity as an amicus curiae, to make submissions given that it was a party to the ILUA and not all persons interested had appeared or, in Ms Rabbitt’s case, had legal representation.

12    In 2011, the native title party nominated the twelfth respondent, BCJWY Aboriginal Society Ltd (now in liquidation), as the “nominated entity” under the ILUA. The nominated entity was to receive from QGC and distribute over the course of 10 years substantial amounts of compensation. However, BCJWY does not appear always to have acted in a financially transparent or appropriate way, and eventually lost the confidence of, at least, a majority of the families. It was placed in administration on 2 March 2019, and on 5 July 2019 in liquidation. That left QGC in the quandary of having no person to whom the ILUA authorised it to pay the annual compensation benefits, resulting in it commencing this proceeding and paying what will shortly total over $1.5 million into Court in an interpleader action.

13    The final hearing commenced on 27 April 2021. It has been delayed due to effects of the pandemic that had caused the hearing that had been fixed for this time last year and all other hearings in the Court to be vacated. The parties are at issue as to or whether a replacement for BCJWY can be, or has been, appointed under the ILUA. That was the principal question in the trial.

14    The three remaining issues have been the subject of evidence and submissions. Those issues are:

(1)    has Boonyi Downs replaced, or is it capable of replacing, BCJWY as the nominated entity for the purposes of the ILUA (the replacement issue)?

(2)    if the answer to (1) is “yes”, can the money paid into Court be paid to Boonyi Downs, and if so, how (the payment issue)?

(3)    if the answer to (1) or (2) is “no”, is there an alternative means by which the money paid into Court can be paid out to the persons whom the ILUA intended to benefit, and if so, how (the distribution issue)?

Ms Rabbitt’s capacity

15    Ms Rabbitt filed numerous, rambling documents in the proceeding comprising a defence, scandalous parts of which I struck out, some lengthy affidavits, most of which could be classed as argumentative, scandalous or submissions and, in addition, some protracted submissions. For the reasons that I gave yesterday that are recorded in the transcript, having observed and heard Ms Rabbitt give evidence and make submissions on 27 and 28 April 2021 in Court and (on the second day) by audiovisual link, I was not satisfied that Ms Rabbitt created, caused to be created, or understood the nature or content of, any document that was filed in her name in the proceeding or that she had capacity to participate as a party. I had allowed her granddaughter, Grace Munro, to assist her. As I observed the interaction between them, I formed the clear view that Ms Munro was prompting her grandmother to say whatever Ms Munro wanted her to say whenever Ms Munro was near her. When Ms Rabbitt gave evidence on 27 April 2021, it was apparent that she had no idea why she was in the witness box, what the proceeding was about or what was happening in it. That unfortunate impression was reinforced when I asked her, at the beginning of the hearing on 28 April 2021, the following:

HIS HONOUR: Ms Rabbitt, I’m trying to give you every opportunity to tell me why I should form the view that you really have any understanding about what you’re trying to achieve in this case, and at the moment I’m not feeling that you understand what the case is about and can represent yourself, and I’m concerned that that is not good for you and I just want to make sure that I’m not misunderstanding things. Do you follow me?

MS RABBITT: I don’t understand.

HIS HONOUR: No, I don’t think you do understand, but I’m just trying to make sure it’s not my fault – that I’m not thinking you – I think you don’t understand. Can you tell me what you want me to do in this case, in your own words? Why are you fighting it?

MS RABBITT: Well, stop the money being – no, your Honour.

HIS HONOUR: Well, is there anything else you want to tell me about things?

MS RABBITT: No, your Honour.

(emphasis added)

16    I explained why I was of opinion that Ms Rabbitt did not have capacity to represent herself and look after her own interests in the proceeding. I have placed no weight on the material that I consider Ms Munro created to advance whatever Ms Munro’s views or objectives were. Those views and objectives are not attributable, and should not be attributed, to her grandmother.

The ILUA

17    The ILUA contained the following relevant definitions in cl 1.1, namely:

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.

…

Nominated Entity means the entity nominated by the Native Title Party in accordance with Annexure 3.

…

Parties means QGC and the Native Title Party.

18    Clause 1.2 was an interpretation clause and provided, among other matters, that words in the singular include the plural and vice versa (cl 1.2(b)) and if a party to the ILUA consists of more than one person, those persons are jointly and severally bound under the ILUA (cl 1.2(e)). Clauses 2 and 3 provided, relevantly:

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; and

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

3     Native Title Party's decisions under this Agreement

The Native Title Party agrees that:

(a)     where it is required to make any decision under this Agreement, such decision is to be made by a majority of persons comprising the Native Title Party; and

(b)     where a Family Group is required to make any decision under this Agreement, such decision is to be made through the Native Title Party.

19    The ILUA commenced on the authorisation date, being the date of registration by the National Native Title Tribunal (cl 4). It was an area agreement under ss 24CA–24CL of the Act (cl 6). QGC and the native title party agreed to work cooperatively for the conduct of the project which QGC was pursuing and to act in good faith towards each other for the term of the agreement (cl 7(a)).

20    Clause 8 provided for the establishment of an implementation committee, the membership of which would comprise five representatives of the native title party, one from each of the family groups, and three representatives of QGC. It provided that the committee be a forum for “oversight of the Financial Benefits set out in Annexure 3” (cl 8(3)(i)).

21    Clause 9 stipulated that QGC would provide considerable financial benefits under the ILUA, including $350,000 in each of the 10 years following its registration (as provided in cl 3 of annexure 3). Some of those financial benefits have been paid into Court as a result of orders I made at the commencement of the proceeding, when QGC found it was unable to determine to whom money should be paid. The native title party agreed, in cl 9(b), for and on behalf of the native title group, that the financial benefits provided under the ILUA would be in full and final satisfaction of any entitlement to compensation and paid for the benefit of the native title party and the members of the native title group.

22    Importantly, cll 1 and 2 of annexure 3 provided:

1     Nominated Entity

1.1     The Parties agree to establish the Nominated Entity to be used for the purposes of holding the Financial Benefits provided under this Agreement for the Families.

 1.2     The Nominated Entity must be an entity created at law and must be either:

(a)     an incorporated body:

(i)     whose membership or shareholding is restricted by its constitution to members of the Families;

(ii)     which is not in administration, receivership or liquidation under any laws applicable to the incorporated body;

(iii)     which the Native Title Party has agreed is a Nominated Entity for the purposes of this Agreement; and

(iv)     which exists at the date of this Agreement or is established by the Families for the purposes of this Agreement; or

(b)    a trust:

(i)     for the benefit of the Families, whether as a fixed trust or charitable trust;

(ii)     the trustee of which, as a natural person, is not an undischarged bankrupt, or, as an incorporated body:

(A)     is not in administration, receivership or liquidation under any applicable laws; and

(B)     whose membership or shareholding is restricted by its constitution to members of the Families;

(iii)     which the Native Title Party have agreed is a Nominated Entity for the purposes of this Agreement; and

(iv)     which exists at the date of this Agreement or is established by the Families for the purposes of this Agreement.

2     Nomination of the Nominated Entity

 2.1     As soon as practicable after the later of:

  (a)     the Authorisation Date; or

(b)     the establishment of the Nominated Entity, if there is no Nominated Entity at the Authorisation Date;

the Native Title Party, on behalf of the Families, must notify QGC in writing of the name and address of the Nominated Entity.

2.2    Once the Nominated Entity has been established and all signatories to this Agreement have provided written notice and direction to transfer the Benefits to  the Nominated Entity, QGC will transfer the Benefits to  the Nominated Entity in accordance with this Annexure and this Agreement.

2.3    In the event that the Nominated Entity has not been established by 31 December 2010 and provided the Registration Date has passed by that date, the Parties agree that the Financial Benefits will be transferred to Gadens Lawyers' trust account to be held on trust in accordance with the terms of this Agreement.

(emphasis added)

Background

23    Ultimately, the native title party nominated BCJWY, under cl 2.1 of annexure 3 of the ILUA, to be the nominated entity after it was incorporated on 6 April 2011. QGC paid BCJWY the initial financial benefit of $2 million under cl 3.1 of annexure 3 and continued making payments of $350,000 per annum thereafter, until the dispute arose leading to the institution of these proceedings.

24    As noted above, by 20 December 2017, one of the signatories of the ILUA, Ms Malone, had died, and another, Ms Holt, suffered from incapacity, so that, within the native title party, there were only 12 signatories capable of acting.

25    In addition, on 4 April 2017, Ms Ott had resigned in writing from being a member of the native title party saying that she was no longer prepared to attend or act in that capacity. She has maintained that position and submitted in this proceeding to any orders the Court might make.

26    Although the ILUA did not provide for the event that a signatory might resign, die or lose capacity, in my opinion, given that QGC had agreed to pay 10 annual instalments of $350,000 each under the ILUA, the parties to it must have understood and intended that such an event was likely to occur during those 10 years. In that event, the native title party would then consist of those signatories who remained capable, alive and attended meetings so as to form a majority, provided that proper notice of such meetings and their agenda was given: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466A–D per Black CJ, von Doussa and Cooper JJ.

27    On 20 December 2017, QGC wrote to the legal representatives for various persons within the native title party, as well as to each of Ms Ott and Ms Jerome, advising that, as a result of the my decision in Conlon (No 2) 359 ALR 460 at the hearing on 13 December 2017, QGC found itself in a position of difficulty (the 20 December QGC letter). It noted that the Court had declared that an amending deed that sought to change the terms of the ILUA had no force or effect. QGC said that it wished to clarify how and in what way it was to pay future financial benefits under cl 3 of annexure 3. Because of the disputes within the native title party at that stage, QGC required “confirmation of the nomination of the Nominated Entity”, the names and contact details of the representatives from the native title party on each of the Implementation Committee and the Cultural Heritage Coordinating Committee and the nomination of a service provider. QGC’s letter noted that there were only 12 current members of the native title party who were able to act with capacity, and reminded those members that they had authority under the ILUA to act by majority. QGC sought confirmation that BCJWY was the nominated entity and noted that, if it went into administration, receivership or liquidation, it could not continue to act in that capacity. QGC also reminded the parties of various other provisions in the ILUA.

The events in 2018

28    The 20 December QGC letter led to a meeting of the native title party being called on 18 January 2018. The minutes of that meeting, which continued on 19 January 2019, appear to confirm that all of the members of the native title party then living with capacity had been contacted and notified of the holding of the meeting, and that, while six had attended, namely, Ms Booth, Mr Bone, Ms Colonel, Ms Conlon, Ms Alberts and Ms Johnston, others had not replied to emails calling the meeting or accepted phone calls from Ms Alberts or Ms Conlon.

29    Having regard to the contents of the minutes of the meeting on 18 January 2018 in evidence, I am satisfied that each of the persons who was a member of the native title party received due notice of the calling of the meeting, and that those who did not attend either chose not to do so or were incapacitated. The meeting was told that Mr Daylight had appointed Mr Hauff’s firm to act on his behalf and that an email addressed to him had been returned with a mail delivery error notation. Ms Alberts had contacted Mr Daylight’s sister, who had advised her that he was ill and could not attend the meeting.

30    During the course of the meeting, those present approved the appointment of Mr Hauff’s firm to act on their behalf. They discussed creating a new proprietary limited company to be the trustee for the beneficiaries under the ILUA, with only members of the native title party implementation committee capable of being its directors and shareholders. The meeting resolved to establish a replacement for BCJWY and discussed a name. Those present at that meeting suggested that the thirteenth respondent, Murra Downs, be established as the new nominated entity. The meeting also resolved to elect some replacement members to the implementation committee so that it comprised Ms Booth, Mr Davies, Ms Colonel, Ms Conlon and Ms Alberts.

31    On 19 January 2018, the meeting resumed and resolved that the implementation committee members should be directed to do all things required to establish “the Nominated Entity, ‘Murra Downs Pty Ltd’”.

32    On 1 February 2018, a subsequent urgent meeting of the signatories to the ILUA occurred. Five of the six people who attended the 18 and 19 January 2018 meetings were present, other than Mr Bone. They discussed the position of Murra Downs and noted that the Australian Securities and Investments Commission (ASIC) had registered another company, Boonyi Downs, on 31 January 2018, but that no constitution of Boonyi Downs was available at the meeting. The minutes noted a number of proposed actions that had to occur in respect of each of Murra Downs and Boonyi Downs, including: “Review/Amend Boonji Pty Ltd [sic] re Implementation Committee”.

33    The business arising section of the minutes noted, under Boonyi Downs’ name, that:

5.    Purpose of Boonji [sic] Pty Ltd ‘to act as Trustee of the funds’

6.    2 representatives to attend Murra Downs Pty Ltd meetings.

34    After 1 February 2018 and before 10 April 2018, Mr Daylight passed away, as is recorded in the minutes of the meeting held on 10 April 2018.

35    The 10 April 2018 meeting was attended by the same six people as had attended the 18 and 19 January 2018 meetings (although Mr Bone attended by telephone) and Mr Hauff, together with Ms Jerome. The 10 April 2018 meeting resolved to confirm the resolutions of the meetings of 18 and 19 January 2018 and 1 February 2018. The attendees signed a statutory declaration on the same day that attached the minutes of the 18 and 19 January 2018 and 1 February 2018 meetings and confirmed the resolutions that they recorded. The statutory declaration also recorded that Mr Hauff’s firm had been appointed to represent the native title party under the ILUA. Those present at the 10 April 2018 meeting resolved to appoint Ms Jerome, on her own nomination, as the representative of the Jarowair family group on the implementation committee.

36    On 17 April 2018, Mr Hauff wrote to QGC attaching the minutes of the meetings of 18 and 19 January 2018, 1 February 2018 and 10 April 2018, together with the statutory declaration. The letter promised that Mr Bone would also make a statutory declaration in the same terms as the 10 April 2018 one. Mr Hauff’s letter noted that, without including Mr Bone’s vote, six of the 11 signatories to the ILUA with capacity or who were still alive had voted for the resolutions.

37    In the letter, Mr Hauff also stated that:

    one of the resolutions that had been passed was that the nominated entity would be Boonyi Downs,

    Boonyi Downs would have a constitution so that it would be a charitable trust,

    Boonyi Downs’ directors would be made up of the implementation committee members and its shareholders would be limited to those directors or their family group replacements in accordance with its constitution,

    Boonyi Downs would have objects enabling it to hold a bank account and make payments as directed by the implementation committee.

38    No such resolutions appear in or are evident from the minutes of any of the three meetings in 2018. However, as I have noted, the minutes of the meeting of 1 February 2018 provide what I infer was the basis for Mr Hauff’s assertions about the characterisation of such a resolution, namely the “Purpose of Boonji [sic] Pty Ltd ‘to act as Trustee of the funds’”, which I infer referred to moneys received from, or payable by, QGC as financial benefits under the ILUA.

39    The parties disagreed as to whether or not that was a resolution that the meeting made. I am inclined to the view that the statement in the minutes of 1 February 2018 recorded a discussion item as part of the business arising at the meeting and not a formal resolution. However, it may be that the persons present at that, or the 10 April 2018, meeting came to the view that what that statement recorded was, in fact, a resolution, as appears to have been Mr Hauff’s understanding as communicated in his the letter of 17 April 2018.

40    On 1 May 2018, Ms Jerome signed a document entitled “Confirmation of voting in relation to the motion passed at the meeting of the BCJWY Native Title Party meeting held at Toowoomba on 18 January 2018”, in which she:

    stated that she had been unable to attend that meeting,

    confirmed and endorsed the motions passed at it,

    endorsed and confirmed, first, Mr Hauff’s firm’s appointment as the lawyers for the native title party and, secondly, the membership of the implementation committee and cultural heritage coordinating committee, and

    endorsed and confirmed:

3    The Nominated Entity to be Boonji [sic] Downs Pty Ltd…

4     The Service Provider to be Maranoa JV

41    Ms Jerome gave evidence that she signed that document without reading it and felt she had been pressured to do so by the person or persons who had presented it to her. Subsequently, she sought to retract the effect of her signature of the 1 May 2018 memorandum in a document headed “Affidavit” that she affirmed before a justice of the peace on 20 June 2018. Since then, she has not wished to have Mr Hauff or his firm act in relation to anything concerning her and has not supported Boonyi Downs being propounded as the nominated entity.

42    Mr Bone made an affidavit on 17 August 2018 in which he asserted that he had supported and voted for all of the four resolutions that he said were made at the meetings of 18 and 19 January 2018, including a resolution that approved the nomination of Boonyi Downs as the nominated entity. The resolutions, as recorded in the affidavit, matched the terms of Mr Hauff’s letter to QGC dated 17 April 2018. Mr Bone must have been mistaken in his recollection, as recorded in his affidavit, because, until 31 January 2018, Boonyi Downs was not incorporated and did not have any ACN number. He also confirmed in his affidavit that he had attended the meeting on 10 April 2018 by telephone and agreed with the resolutions that are recorded in the minutes of that meeting as having been passed there.

43    There was some contention raised about the execution of Mr Bone’s affidavit of 17 August 2018. It appears to have been initialled by him on each page, above the entry “Deponent”, with what appears to be the same form of his signature as appears on the ILUA. But, in the jurat of the affidavit, above the statement “Signature of deponent”, there is printed “KWB” in a much firmer handwriting. The affidavit was sworn before a justice of peace whose stamp and signature are on each page of the document and who subsequently confirmed that Mr Bone had attended before him to make the affidavit. I think the inference to be drawn from the initials “KWB” is that the person who prepared the affidavit, being Mr Hauff or someone in his office, wrote those initials there to indicate where Mr Bone should sign the jurat and that step was omitted. But, it is clear that Mr Bone did acknowledge the contents of the affidavit by signing, at the foot of each of its four pages, above the line “Deponent”.

44    On 28 November 2018, following the outcome of the mediation, I made the following order:

1.     In relation to the Indigenous Land Use Agreement entered into by the applicant and the first to eleventh respondents, registered on the Register of Indigenous Land Use Agreements on 22 December 2010 (“the ILUA”):

a.     for the purposes of clause 8 of the ILUA, the letter from Trevor Hauff Lawyers dated 17 April 2018 (“the Letter”) is effective notice of the appointment to the Implementation Committee, on behalf of the Native Title Party, of the following people, namely:

i.     Mona Booth (Barrungum);

ii.     William Davis (Cobble Cobble);

iii.     Kylie Jerome (Jarowair);

iv.     Patricia Conlon (Western Wakka Wakka);

v.     Natalie Alberts (Yiman);

b.     for the purposes of clause 6.3 of Annexure 2 to the ILUA, the Letter is effective notice of the appointment to the Cultural Heritage Co-ordinating Committee on behalf of the Native Title Party of the following people with respective contact details, namely:

i.     Mona Booth (Barrungum);

ii.     William Davis (Cobble Cobble);

iii.     Pansy Colonel (Jarowair);

iv.     Patricia Conlon (Western Wakka Wakka);

v.     Natalie Alberts (Yiman).

c.     For the purposes of the definition of “Service Provider” in clause 1.1 of Annexure 2 to the ILUA, the Letter is effective notice of the nomination by the Native Title Party of Maranoa Civil JV ABN 70 906 600 892 as a third party service provider.

The events in 2019

45    On 4 March 2019, administrators were appointed to BCJWY and, at a meeting of creditors held on 5 July 2019, the creditors voted under s 439C of the Corporations Act 2001 (Cth) to put the company into liquidation.

46    On 22 July 2019, Ms Holt passed away.

47    On 25 October 2019, the Registrar conduction a mediation. Mr Davis and Mr Bone did not attend, but Ms McLeod and Ms Ott did by telephone. On the day of the mediation, Ms Conlon, Ms Alberts, Ms Booth, Ms Johnston signed a notice and direction that stated it was made under cl 2.2 of annexure 3 to the ILUa. It recorded that the signatories had agreed to the appointment of Boonyi Downs as the new nominated entity and gave notice and a direction to QGC to transfer the financial benefits that had been paid into Court, and all future amounts due under the ILUA, to Boonyi Downs or to Mr Hauff’s firm’s trust account until the formation and establishment of the Boonyi Downs bank account. On the evidence, Boonyi Downs still does not have a bank account.

48    The notice and direction also recorded the signature of Ms Rabbitt. Mr Hauff did not tender that signature as part of the cross claimant’s case because there was some controversy about it. But, at Ms Munro’s prompting, which I had allowed before I was satisfied that Ms Rabbitt lacked capacity, Ms Rabbitt asked Mr Hauff in cross examination whether he had seen her sign the notice and direction on the day of the mediation, and he said he had. I accept that evidence. However, I do not rely on Ms Rabbit’s signature on the document as evidencing her approval of its contents. That is because I am not sure, based on her current state, what intellectual or mental capacity she then had to act as member of the native title party and Mr Hauff had not sought to rely on her signature for that purpose.

49    By 13 November 2019, it became apparent that Mr Bone had become incapacitated by reason of Alzheimer’s disease and was no longer sufficiently able to act. On 26 January 2020, Mr Bone’s brother, Arnold Murray, made an affidavit that Mr Bone had been diagnosed in 2019 with Alzheimer’s disease and no longer capable had capacity.

50    Also on 13 November 2019, Mr Davis signed the notice and direction. Thus, by then, Mr Bone does not appear to have had capacity, Ms Ott had resigned and was not willing to participate in the business of the native title party, Ms McLeod was also not participating and Ms Jerome did not agree with the notice and direction. As a result, five of the nine native title party members who were still living and had capacity (from whom I have excluded Ms Rabbitt), had agreed to the nomination of Boonyi Downs.

The replacement issue

51    The evidence about Boonyi Downs’ constitution is somewhat imperfect. Mr Hauff asserted that the constitution of Boonyi Downs, as amended, had been adopted by the families “as represented by the Implementation Committee”, but did not give any evidence of any meeting or special resolution by which that occurred.

52    For reasons which do not appear to have any apparent basis, the Parliament has decided that it is not necessary register with ASIC, under s 136 of the Corporations Act, constitutions or, as in the past, memoranda and articles of association, of private companies that have not applied to become public companies. Despite the byzantine complexity and overly prescriptive drafting of the Corporations Act, simple concepts like the public availability of what every company’s constitution is have either been overlooked or considered unnecessary. One wonders what the policy reason is for why a public company, or a private one that intends to go public, needs to lodge its constitution with ASIC so that it is searchable, yet no one can have public access to the constitution of other private companies, including those with only one director or shareholder. Because the Act does not require lodgement with ASIC of constitutions for companies that are not, or have not applied to be, public companies, there is no transparent or statutory process to identify what those constitutions are. That situation, as in this matter, is a cause of uncertainty as to what, at any point in time, a private company’s powers are and the basis on which one can deal with them (I have not overlooked the presumptions in s 129 of the Corporations Act which apply to all corporations).

53    There is no suggestion that anything untoward has happened with the numerous documents that the cross-claimants sought to put in evidence reflecting various asserted versions of Boonyi Downs’ constitution. The only evidence of that constitution is what I understood to be its latest version. It provides, in cl 2.1, that the company would have legal capacity and power to hold a bank account and distribute funds in accordance with the instructions of the implementation committee under the ILUA. The constitution referred to the company having purposes to act as the recipient of funds received from QGC, to hold a bank account and distribute the funds in accordance with the directions of the implementation committee who were said to represent the families and family groups and for no other purpose. The constitution required the company to comply with directions of the implementation committee representing the families and family groups (cl 2.3) and also provided:

2.4.     Shareholders

(a)    The shareholders of the Company shall be limited to members of the Families.

(d)    The Shareholders of the Company shall be restricted to members of the Families who are Implementation Committee members or their successors.

…

4.1.    Issue of shares

(a)    Shares shall only be issued to members of the Families who are members of the Implementation Committee and shall be of one class only.

The replacement issue – the parties’ submissions

54    As is apparent, the ILUA has no express clause that dealt with the situation that has arisen, namely, where the previous nominated entity, BCJWY, ceases to be able to carry on its functions and is in liquidation. Under cl 1.2(a)(ii) of annexure 3, a company in administration or liquidation is not capable of being a nominated entity. The parties debated at the hearing how any replacement for a nominated entity could be constituted and by what mechanism that would occur.

55    The cross-claimants contended that a majority of the native title party can simply vote to replace one nominated entity with another, and that they had done so. Effectively, they argued that Boonyi Downs is capable of being the nominated entity and that I should declare that it has been appointed, so that it can then receive the moneys held in the Court. They submitted that the persons comprising the native title party who were alive and had capacity were able to vote to do so because they had been appointed, under the ILUA, to make decisions on behalf of the families and family groups. They argued that it followed that the native title party could establish for and on behalf of the families, but without any consultation or authorisation, a new nominated entity. They asserted that this is what had happened with the appointment of Boonyi Downs.

56    The cross-claimants contended that, whatever might have been the strict requirements of the ILUA, the parties to it, being the native title party and QGC, had proceeded their own way in 2010 and 2011, dispensing with formalities, and that it was possible to do the same now. They submitted that it was not necessary that all of the signatories to the ILUA who were living and capable of signing give QGC a written notice and direction under cl 2.2 of annexure 3 and that they could do so as a majority in accordance with cl 3(a) of the ILUA (see [18] above). They argued that, likewise, the two named parties to the ILUA had waived compliance with cl 2.3 of annexure 3 and could appoint, and indeed had appointed, BCJWY as the nominated entity after what the cross-claimants suggested was the deadline of 31 December 2010 imposed by that clause. The cross-claimants contended that such a waiver was the only explanation for why BCJWY could have become the nominated entity, because it had only been incorporated on 6 April 2011.

57    During the course of argument, the parties debated whether an implication should be found in cl 2.1 of annexure 3 to allow appointment of another nominated entity. The cross-claimants argued that the words “from time to time” should be inserted between “must notify QGC in writing” and “of the name and address of the Nominated Entity”, so as to allow the substitution of a new nominated entity as and when the native title party saw fit.

58    Ms Jerome argued that the words “or at any time thereafter” should be inserted after “Authorisation Date” in cl 2.1(b).

59    I raised with the parties a formulation to be added at the end of cl 2.1(b), namely:

…or, if at any time thereafter, the nominated entity for any reason has ceased to be capable of acting in accordance with clause 1.2.

60    Neither Ms Jerome nor QGC argued against that implication. It was not clear exactly what the cross-claimants’ position about my suggestion was. They contended that their version should be adopted because that would effect a construction of the ILUA that gave it business efficacy.

Consideration

61    The test for the implication of a term, in fact, is well settled. In BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 at 283, the majority, Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel said:

for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

62    French CJ, Bell and Keane JJ said in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 185–186 [21] (and see too at 201 [62] and 209–210 [90] per Kiefel J), that courts have implied terms “in fact or ad hoc to give business efficacy to a contract” pursuant to that test (which the High Court adopted in Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605–606 per Mason J, with whom Gibbs, Stephen and Aickin JJ agreed).

63    In Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640 at 656–657 [35], French CJ, Hayne, Crennan and Kiefel JJ said:

… The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean (McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at 589 [22] per Gleeson CJ; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462 [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160 [8] per Gleeson CJ; see further Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 at 188 [11] per Gleeson CJ, Gummow and Hayne JJ, citing Investors Compensation Scheme Ltd v West Bromwich Building Society [No 1] [1998] 1 WLR 896 at 912; [1998] 1 All ER 98 at 114. See also Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 at 737 [10] per Lord Bingham of Cornhill). That approach is not unfamiliar (See, eg, Hydarnes Steamship Co v Indemnity Mutual Marine Assurance Co [1895] 1 QB 500 at 504 per Lord Esher MR; Bergl (Australia) Ltd v Moxon Lighterage Co Ltd (1920) 28 CLR 194 at 199 per Knox CJ, Isaacs and Gavan Duffy JJ; see generally Lord Bingham of Cornhill, “A New Thing Under the Sun? The Interpretation of Contract and the ICS Decision”, Edinburgh Law Review, vol 12 (2008) 374). As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160 [8] per Gleeson CJ; at 174 [53] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ; Byrnes v Kendle (2011) 243 CLR 253 at 284 [98] per Heydon and Crennan JJ. See also Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 326, 350; Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at 2906-2907 [14]; [2012] 1 All ER 1137 at 114). Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating” (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350 per Mason J, citing Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574. See also Zhu v Treasurer (NSW) (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160 [8] per Gleeson CJ). As Arden LJ observed in Re Golden Key Ltd ([2009] EWCA Civ 636 at [28]), unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience” (Zhu v Treasurer (NSW) (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. See also Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455 at 464).

(emphasis added)

64    The ILUA is not, strictly speaking, a commercial contract. Rather, it is a statutory contract created by force of its registration and the requirements of s 24EA of the Act. It binds not only QGC and the native title party, but also all persons holding native title in relation to any of the land and waters it covers. However, much of what their Honours said is applicable to the construction of such an agreement. Accordingly, in construing a contract, a court should seek to give it an interpretation that the parties intended, that produces a commercial result and avoid it “making commercial nonsense or working commercial inconvenience”: see too Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 at 117 [51] per French CJ, Nettle and Gordon JJ, and at 132 [108]–[109] per Kiefel and Keane JJ.

65    Here, the parties could not have intended a construction of the ILUA that resulted in it being impossible to replace an existing corporate or trustee nominated entity where it ceased to have the attributes prescribed for it in cl 1.2 of annexure 3. Rather, the intention of the parties was that there be at all times a nominated entity, being either a corporation or trust, that would be able to distribute the financial benefits, that QGC had agreed to pay over the term of 10 years, to, or for the benefit of, the families, because that is what cl 1.1 of annexure 3 provides.

66    In my opinion an implied term should be added at the end of cl 2.1(b) of annexure 3 in the form that I suggested. Such a term is reasonable and equitable, necessary to give business efficacy to the contract, so obvious that it goes without saying, clearly expressed, and does not contradict any express term of the ILUA. Unless it were possible to appoint a new nominated entity when the existing one is incapable of acting, as has happened with the administration and subsequent liquidation of BCJWY, there would not be a mechanism to distribute to, or for the benefit of, the families moneys that QGC had yet to pay pursuant to express terms of the ILUA.

67    For those reasons, I find that the proper construction of cl 2.1(b) of annexure 3 requires the implication of the additional words that I formulated, because they were part of the ILUA as originally made. An implied term is one which the parties are taken to have agreed to at the time that they made the contract, without expressly stating it, because it is conveyed by the language of the contract and in the circumstances that obtained.

68    I am not satisfied that, however well-intentioned those attending and recording the minutes of the meetings on 18 and 19 January 2018, 1 February 2018, and 10 April 2018, were, they agreed to or voted on a resolution that Boonyi Downs be appointed as the nominated entity. Nor, as I have noted, was there any express resolution in those terms in evidence, although it does appear that Mr Hauff and others may have had that understanding at the time and continue to have it.

69    In any event, I am not satisfied that Boonyi Downs, as currently constituted, is an entity that could be a nominated entity within the meaning of cl 1.2(a) of annexure 3. That is because, first, while its membership is restricted by the constitution in evidence to members of the family groups, as defined in the ILUA, the restriction is so narrow that only the members of the implementation committee from time to time can be members of the company. Secondly, there is no evidence that Boonyi Downs meets the criterion in cl 1.2(a)(iv), namely, that it “is established by the families for the purposes of” the ILUA. In my opinion, it is essential that the families decide to establish a nominated entity, not representatives, however well-intentioned or otherwise, of families who were authorised to sign the ILUA in 2010 or subsequently may have come to replace those persons. That is because both cl 1.2(a)(iv) and (b)(iv) required that the nominated entity exist at, or be established by the families (not by family groups, nor native title party) after, the date the ILUA was made. Relevantly, cl 1.2(a)(iii) and (b)(iii) required that the native party agree to the incorporated body or trust (scil: trustee and terms of the trust) existing as at the date of the ILUA, or later established by the families, being the nominated entity and thereafter put it forward to QGC in writing on behalf of the families under cl 2.1.

70    In addition, as QGC suggested, because the singular can include the plural throughout the terms of the ILUA as provided in the interpretation provisions of the ILUA in cl 1.2(b), it is possible for there to be more than one nominated entity for one or more families. The establishment of a plurality of nominated entities, if that is what the families choose to do, may possibly avoid disputes as to the distribution of funds or the appropriateness of actions in a nominated entity deciding who will be entitled to or should be given part or parts of the financial benefits.

71    I reject the cross-claimants’ argument that only the persons who were original signatories to the ILUA or the native title party or their successors can determine what should be the nominated entity or what its constitution should provide. In my opinion, the ILUA does not allow such a construction. It intended to create a distinct role for the families to play in the identification of the nominated entity that is to hold money for their benefit.

72    Nor do I accept the cross-claimants’ argument that cl 3 of the ILUA gave authority to a majority of the native title party to make decisions, on behalf of the families, relating to the establishment of the nominated entity under cl 1.2(a)(iv) of annexure 3. Reading the ILUA as a whole, it gives distinct roles to the native title party as to when it can make decisions by majority and convey to QGC any decisions by a family group such as may be required, for example, under annexure 2, that deals with cultural heritage officer positions for the five family groups as provided in cl 7.1(a). However, those decisions are different in nature to the identification, or the establishment by one or more of the families, of a company intended to be the, or their, nominated entity, or other decisions that the ILUA requires be made by the “families” or native title group as a whole, being, by force of ss 24CD(3) and 24EA(1) of the Act, all persons who do or claim to hold native title in the ILUA area, including those who are parties to the ILUA: cf Conlon (No 2) 359 ALR at 463 [8].

73    The importance of allowing all of the persons within the definition of “families” to participate in the process for establishment of the nominated entity, as evinced in annexure 3 of the ILUA, cannot be understated. It prevents particular persons who have other powers under the ILUA dominating that process or constituting a company that will be used ultimately to cause money paid by QGC for the benefit of the families to be paid to a narrower class. It is well-known in the area of native title that, not infrequently, persons obtain positions of power in a claim group, through ILUAs or prescribed bodies corporate, and then misuse that power to siphon off for their own benefit large amounts of money intended for, or to benefit, members of claim groups as a whole. Indeed, one of the issues with the demise of BCJWY was whether such impropriety, in fact, happened in its case. There is some suggestion that there may have been individuals, including ones with no apparent connection to the families or the claim groups, acting in that way, but it is not necessary to make any findings about that possibility in these reasons.

74    However well-intentioned those seeking to bring coherence to the decision-making of the native title party may have been, where there appeared to be a lack of co-operation and substantial differences between the living signatories to the ILUA with capacity, I am not satisfied that Boonyi Downs has been established by the families for the purposes of the ILUA.

75    In my opinion, for the reasons I have given, Boonyi Downs, first, has not replaced BCJWY as the nominated entity, and, secondly, is not presently capable of doing so.

The payment and distribution issues

76    Based on my finding that Boonyi Downs has not replaced BCJWY as the nominated entity, the payment issue does not arise. That leaves the distribution issue to be determined.

77    There is currently a significant sum of money that QGC has paid into Court, and it has today informed me that it holds another $766,865.43, including interest on two payments due on 25 February 2020 and 2021, which it is prepared to pay into Court to abide the outcome of whatever process needs to be undertaken to ensure that one or more new nominated entities is or are established by the families for the purposes of the ILUA within the meaning of cl 1.2(a)(iv) or (b)(iv) of annexure 3.

78    Ms Jerome proposed that the Public Trustee of Queensland be appointed under the provisions of ss 80 or 82 of the Trusts Act 1973 (Qld). Initially, QGC supported that proposal. The cross-claimants argued that they should have “some control” over the moneys and suggested that, somehow, the appointment of the Public Trustee would take away the rights of the families. It was also suggested that this Court did not have jurisdiction or power to make an appointment under the Trusts Act. I am not clear that this suggestion is consistent with the application of s 79 of the Judiciary Act 1903 (Cth) that “picks up” the laws of the State or Territory in matters such as this, that arise under the Native Title Act and necessarily are in federal jurisdiction, and the principles in In re Wakim; Ex parte McNally (1999) 198 CLR 511 and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 584–589 [50]–[60] per Gleeson CJ, Gaudron and Gummow J, 609–612 [129]–[137] per McHugh J, 637–639 [213]–[220] per Hayne and Callinan JJ.

A possible solution

79    During the course of final submissions, QGC suggested that it may be possible for orders to be made to enable the Tribunal, pursuant to s 108(1B)(b) of the Act, to enter an agreement in accordance with s 203BK(3) on the request of the representative body, Queensland South Native Title Services Limited under s 203BF(1)(ii), to formulate a process through which the families could meet, either individually or collectively, to see if they could establish one or more nominated entities to replace BCJWY. QGC has also informed the parties and the Court that it is prepared to contribute $75,000 to assist in the holding of such meetings, and to pay that sum as appropriate to enable the Court, the Tribunal or the representative body to have control of it.

80    In my opinion, the money currently held in the Court is held on trust for the person or persons that the Court finds beneficially entitled to receive it based on the outcome of the proceeding (cf Harmer v Federal Commissioner of Taxation 173 CLR 264 at 272–273, per Mason CJ, Deane, Dawson, Toohey and McHugh JJ). Once that occurs, the money will need to be paid ultimately to, or at the direction of, the persons beneficially entitled, which are likely to be the families as provided in cl 1.1 of the ILUA. QGC’s senior counsel said from the bar table that both the Registrar of the Tribunal and principal legal officer of the representative body have indicated that they are prepared to take up such a role to facilitate the holding of meetings.

81    In my opinion, given the significant dysfunction and disruption in the claim group and the fact that those who are currently the surviving original signatories of the ILUA have not had their positions re-authorised, been re-elected or otherwise brought under the control of the claim group for over 10 years, it is in the interests of all persons who, by force of s 24EA(1) of the Act, are parties to determine what the claim group and the families want to establish as one or more nominated entities that can be used to enable the purposes of the ILUA to be fulfilled.

82    That does not mean that the native title party has ceased to have its ordinary role under the ILUA. If and when a lawful process has occurred to propose that one or more body corporate or trustee of a trust, as established by the families, be a nominated entity, the native title party will still need to agree, under cl 2.1 of annexure 3, that that entity is properly constituted for the purposes of the ILUA, and it then must notify QGC in writing of the name of each such entity’s name and address.

Conclusion

83    Rather than trying to formulate today orders for the process of arranging and holding any meetings and the payment of money into Court, I will leave it to the parties to bring in draft orders to reflect the proposal once they have had the benefit of consultations with the Registrar of the Tribunal and the representative body so that, if need be, there can be further argument, or I can make those orders in chambers.

84    It will suffice to make a declaration that the ILUA contained an implied term, so that cl 2.1 of annexure 3 reads (with the italicised implication) as follows:

2.1    As soon as practicable after the later of:

  (a)    the Authorisation Date; or

(b)    the establishment of the Nominated Entity, if there is no Nominated Entity at the Authorisation Date or, if at any time thereafter, the nominated entity for any reason has ceased to be capable of acting in accordance with clause 1.2;

the Native Title Party, on behalf of the Families, must notify QGC in writing of the name and address of the Nominated Entity.

Associate:

Dated:    21 May 2021

SCHEDULE OF PARTIES