Federal Court of Australia

Williams on behalf of the Danggan Balun (Five Rivers) People v State of Queensland [2022] FCA 355

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 66B of the Native Title Act 1993 (Cth), the Applicant in this proceeding, jointly comprised of Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri, Germaine Paulson and Anthony Dillon, is replaced by Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri and Germaine Paulson.

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

REASONS FOR JUDGMENT

COLLIER J:

1    On 14 December 2021, six of the seven persons (interlocutory applicant) who make up the Danggan Balun native title applicant (Danggan Balun applicant) filed an interlocutory application seeking the following relief:

(1)    That pursuant to section 66B of the Native Title Act 1993 (Cth), the Applicant in this proceeding, jointly comprised of Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri, Germaine Paulson and Anthony Dillon, are replaced by Gordon “Ted” Williams, Rose Page, Louisa Bonner, Shaun Davies, Israel Bundjuri and Germaine Paulson.

(2)    Such other orders as the Court considers fit.

2    In short, the effect of these proposed interlocutory orders would be to replace the Danggan Balun applicant with six of the seven persons currently comprising that party, and to henceforth exclude Mr Dillon as one of the constituent members of the Danggan Balun applicant.

3    On 14 February 2022, I made case management orders to bring this interlocutory application to a hearing. The hearing was held on 16 March 2022. For the reasons that follow I am of the opinion that the orders sought in the interlocutory application should be granted.

submissions of the parties

4    In summary, the interlocutory applicant argued that Mr Dillon should be removed as a member of the Danggan Balun applicant pursuant to s 66B (1)(a)(iii) or (iv) of the Native Title Act 1993 (Cth) because he breached the terms and conditions that bind each person authorised as the Danggan Balun applicant. It further contended that, owing to this breach, and the requirement outlined in the terms and conditions that any breach is deemed to be an indication by an individual that they are unwilling to continue as a member of the Danggan Balun applicant, the interlocutory applicant is entitled, under the terms and conditions, to:

…make an application to remove the name of a person who is unwilling or unable to continue to act for the native title application and to continue to prosecute the native title claim without the need to hold an authorisation meeting.

5    In the alternative, the interlocutory applicant submitted that, by his conduct, Mr Dillon exceeded the authority given to him by the claim group to be a member of the Danggan Balun applicant within the meaning of s 66B(1)(a)(iv) of the Native Title Act 1993 (Cth), and that this justifies and permits his removal as a member of the Danggan Balun applicant.

6    Mr Dillon did not file written submissions. Rather he relied on his affidavit dated 28 February 2022, and made oral submissions at the interlocutory hearing on 16 March 2022. In summary, his submissions were:

    he should not be removed as a member of the Danggan Balun applicant;

    he did not breach the terms and conditions or exceed his authority as a member of the Danggan Balun applicant;

    he is the subject of a “giant witch hunt”, including by Queensland South Native Title Services (QSNTS), because he has been trying to push the claim ahead;

    he had business skills and was an entrepreneur;

    he was an electrician;

    he has been trying to get the applicant group to “do governance” from the beginning;

    he has a tradesman background, and knows how to make money;

    he has given employment opportunities to indigenous operators, including members from the claim group;

    he had no Court experience;

    he had made the group money;

    he was the sole director of TNA Energy Pty Ltd, which was “his” company;

    he was fully supported by the Gold Coast people;

    he was not given a chance to defend himself;

    he has been trying to help the claim group get business up and running, and terms like those sought to be imposed prevent that;

    QSNTS wants the native title application to last for 10 years;

    the other members of the Danggan Balun applicant are profiteering and helping themselves, with QSNTS;

    the Danggan Balun applicant has lost its way;

    he had to sell his house to pay for the excavators; and

    his life has been ruined by the other members of the Danggan Balun applicant.

RELEVANT EVIDENCE

7    The interlocutory applicant filed and relied on a number of affidavits in support of the interlocutory application, being:

    The affidavit of Ms Louisa Bonner filed on 14 December 2021. Ms Bonner was a member of the Danggan Balun applicant.

    The affidavit of Mr Thomas Scott filed on 7 March 2022. Mr Scott was a solicitor employed by QSNTS.

    The affidavit of Mr Shaun Davies filed on 7 March 2022. Mr Davies was a member of the Danggan Balun applicant, and a joint Cultural Heritage Co-ordinator for the Danggan Balun People claim.

8    On 3 March 2022 Mr Dillon filed an affidavit in the proceedings. I note that there was some blurring of the lines between his evidence and his submissions.

Evidence of the Danggan Balun applicant

Ms Bonner

9    Ms Bonner deposed, in summary, as follows.

10    Ms Bonner attended two authorisation meetings of the Danggan Balun People claim group on 15 February 2020. At the first authorisation meeting the claim group authorised various amendments to the claim group description for the Danggan Balun People claim, including to expand the composition of the claim group by adding additional apical ancestors. A second authorisation meeting was held to authorise the Applicant for the amended Danggan Balun People claim.

11    At the second authorisation meeting on 15 February 2020 a number of resolutions were passed. These resolutions included the following:

Resolution #8: Terms and Conditions of Appointment of Applicant

The members of the Claim Group to be authorised at this meeting to comprise the Applicant for the Application are authorised subject to the Terms and Conditions of Appointment tabled at this meeting.

Resolution #11: Authorisation of Replacement Applicant

That the members of the Claim Group present at this meeting authorise the following members of the Claim Group for the Application (together the Replacement Applicant) to make the application for a determination of native title and deal with all matters rising under the Native Title Act 1993 (Cth) in relation to the Application, subject to the Terms and Conditions of Appointment tabled at this meeting:

•    [members of Danggan Balun applicant]

12    The terms and conditions referred to in the resolutions included the following:

1.    The members of the Applicant:

…

…

(c)    owe fiduciary obligations and duties to the Claim Group as follows:

(i)    Applicant members must not place themselves in a position where their private or personal interests come into conflict with the interests of the members of the Claim Group;

(ii)    Applicant members must not pursue and secure personal benefits;

(iii)    Applicant members must not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Claim Group; and

(d)    must act in the best interests of the Claim Group and not for their individual, family or descent group’s interests.

…

4.    The Applicant cannot undertake any of the following steps without a resolution being passed to do so by the Claim Group at a properly called and constituted authorisation meeting:

…

(b)    subject to other terms of appointment herein, amend the Application without a resolution of the Claim Group authorising them to do so;

…

…

5.    If one or more members of the persons comprising the Applicant is incapable, unable or unwilling to continue to act as a member of the Applicant whether as a result of death, ill-health or any other reason, the remaining Applicants may continue to act as the Applicant and may file an application to amend the Application to remove those persons’ names from the list of persons comprising the Applicant without the need to convene an authorisation meeting.

6.    Any individual who is a member of the persons comprising the Applicant and:

  …

(b)    acts inconsistently with any resolution passed by the Applicant or the Claim Group at a properly called and constituted authorisation meeting; or

 …

will be regarded as unwilling or unable to continue as a member of the Applicant.

13    At [11] of her affidavit Ms Bonner deposed:

At an Applicant meeting held on 23 June 2020, the Applicant appointed Mr Dillon and Mr Davies to act jointly as Cultural Heritage Coordinators for the Danggan Balun People. In their roles as Cultural Heritage Co-ordinators, Mr Dillon and Mr Davies were responsible for pursing cultural heritage opportunities, liaising with community and if required managing cultural heritage site inspections, surveys, excavation, and mitigation works as part of the Danggan Balun Cultural Heritage Field Team.

14    Ms Bonner also gave detailed evidence concerning excavation contract work undertaken by Mr Dillon’s company TNA Energy for the claim group. In summary, Ms Bonner deposed:

    On 9 June 2021 the members of the Danggan Balun applicant (including Mr Dillon) met and discussed an existing Cultural Heritage Management Plan between the Danggan Balun applicant and Celestino Pty Ltd for a large land development within the Danggan Balun People claim area. At that meeting a fee proposal for 60 days of archaeological salvage work relating to this project was discussed. The fee proposal was prepared by Everick Heritage Pty Ltd.

    Within the budget for the fee proposal were two items relating to proposed excavation work totalling $81,600.00, comprising of Excavator cost ($72,000.00) and Excavator Float cost ($9,600.00).

    At the meeting of 9 June 2021 Mr Dillon confirmed that the excavator for the archaeological salvage work relating to this project would be hired from his company TNA Energy.

    Another meeting of the Danggan Balun applicant was convened by QSNTS on 23 June 2021, however Mr Dillon did not attend. At that meeting the Danggan Balun applicant decided that TNA Energy would not be used for any Danggan Balun cultural heritage work, including this project, and that the Cultural Heritage Coordinator role would no longer be undertaken by Mr Dillon. At that meeting Mr Robins of Everick Heritage Pty Ltd stated that TNA Energy had been engaged by Everick to work on all cultural heritage jobs.

     A further meeting of the Danggan Balun applicant was convened by QSNTS on 3 September 2021 for purposes including discussing Mr Dillon’s alleged breach of terms and conditions of authorisation of the Danggan Balun applicant. Mr Dillon was present at the beginning of the meeting via videoconference however left the meeting prior to the agenda item regarding the issue of his alleged breach of terms and conditions. Multiple attempts were made to contact Mr Dillon but he did not rejoin the meeting.

    On 7 October 2021 lawyers for the Danggan Balun applicant wrote to Mr Dillon asking him, inter alia, how he intended to resolve the alleged breach of terms and conditions. Mr Dillon responded that he would not resign.

    The Danggan Balun applicant passed the following resolution by majority:

The Danggan Balun applicant instruct Ricardo Martinez to file a section 66B application in the Federal Court to seek to remove Anthony Dillon as a member of the Danggan Balun applicant.

    On 11 November 2021 Mr Shaun Davies emailed Mr Robins requesting information regarding money that had been disbursed by Everick to TNA Energy for excavation works. On the basis of information provided by Mr Robins it appeared that TNA Energy received $176,925.00 in disbursements between January 2020 and June 2021 for excavation works relating to Danggan Balun People cultural heritage projects.

    Until the meeting of 9 June 2021 she was not aware that TNA Energy was proposed to receive or had received payment for Danggan Balun cultural heritage work, and no decision had been made by the Danggan Balun People claim group endorsing TNA Energy to be engaged by Everick to undertake work on Danggan Balun cultural heritage projects.

Mr Scott

15    Mr Scott annexed to his affidavit the entirety of a newsletter prepared by QSNTS dated October 2019, the last page of which was included in Mr Dillon’s affidavit. Relevantly on page 4 of this newsletter, entitled DANNGAN [sic] BALUN (FIVE RIVERS) Newsletter – October 2019 (QSNTS Newsletter), is a photograph of an excavator, with the caption:

Equipment and operator from TNA Energy, a business owned by Anthony Dillon. Operator Seru Vutori.

Mr Davies

16    Mr Davies gave evidence that he was the joint Cultural Heritage Coordinator for the Danggan Balun People claim with Mr Dillon, until Mr Dillon was removed from the position.

17    Materially Mr Davies deposed:

5.    Contained within LB-6 of Ms Bonner’s affidavit is an email dated 11 November 2021 from Mr Robins sating that Everick had previously provided me with job summaries. Those job summaries were provided to me and Mr Dillon in our capacity as Cultural Heritage Coordinator and were not provided to the Applicant.

6.    As Cultural Heritage Coordinators, Mr Anthony Dillon and I would jointly manage the rosters for claim group members to participate in cultural heritage work. I would take care of the roster for Logan, Beaudesert and the fresh water-side of Mununjali country. Mr Dillon would deal with the rostering for the Gold Coast area. We would jointly manage rostering for big jobs. I would also attend meetings with proponents, write reports, organise the retrieval of artefacts and undertake other administrative tasks. Mr Dillon would also do some of those things.

7.    Mr Dillon would solely manage the fee proposals, the allocation of all excavation work and other works. Everick had no say in the allocation of the excavation and other works.

18    At the hearing Mr Davies amended “other works” in para [7] of his affidavit to read “heavy machinery”.

Evidence of Mr Dillon

19    In his affidavit dated 28 February 2022 Mr Dillon deposed, in summary:

    He rejected the allegations that he received money from cultural heritage work contrary to direction from the Danggan Balun applicant, or that he did this without the knowledge of other members of the Danggan Balun applicant or the Danggan Balun claim group.

    At [5] of the affidavit he said:

Every Applicant receives benefits and financial benefits from being an Applicant. We receive meeting attendance fees to meet with proponents. We receive wages for undertaking cultural heritage assessment work. This is usual, and consistent with just about every claim group in the State. I received the income from the use of the excavator which TNA took the risk to buy on loan. All of the proceeds from its use go to pay off that debt. It is not an overreach or exceeding of my authority as an Applicant member. If it was, then every current member of the Applicant should be removed and new members prepared to work as volunteers should be nominated.

    In relation to whether Mr Dillon had enjoyed benefits in the absence of knowledge of the Danggan Balun applicant, at [6] and [7] he deposed:

6.    As for doing this behind people’s back, my affidavit shows that, contrary to hiding TNA’s role in assisting the group with cultural heritage management work, it was known to everyone involved. It does not pay to be a ‘tall poppy’ and succeed in business and the Court should not assist the purported replacement Applicant and its advisers to remove me from the claim merely because I am entrepreneurial in my efforts to work with my family members and the broader claim group to achieve our collective cultural heritage management goals.

7.    But this is unnecessary, because there is no exceedance of authority to take such monies in the service of the group’s cultural heritage protection requirements.

20     Mr Dillon deposed that TNA’s excavator was a line item cost in the Everick Heritage budget, and:

12.    … Far from hidden from view, this line item was highlighted in an Applicant meeting and was approved by the Applicant. I was instrumental in increasing the size of the work package to $600,000 from an initial quote of $300,000. This massively benefitted everyone involved from the claim group in the cultural heritage work, not just me. The budget was presented by me and Shaun Davies jointly as CH coordinators to the Applicant, and they signed off on it. It was discussed at the meeting of the Applicant when the budget was tabled by Shaun and me that TNA was being paid its usual commercial rate for the provision of excavation services. In fact, TNA Energy has been sub-contracting to EVERICK HERITAGE pty ltd and has been awarded numerous electrical and civil contracts ranging from North Queensland to South East Queensland since 2018.

21    The only evidence to which Mr Dillon referred as supporting his case was page 4 of the QSNTS newsletter.

22    Mr Dillon gave evidence that he believed he had been unfairly targeted and bullied by other members of the Danggan Balun applicant and QSNTS for his success as Cultural Heritage Coordinator and for his outspokenness, and that he was unfairly and wrongly accused of profiting from his role as a member of the Danggan Balun applicant. Further he gave evidence of his belief that he had been targeted by QSNTS for participating in the commencement of a revised claim in 2018 for a similar area without seeking the assistance of QSNTS, and for the termination of QSNTS as advisors to the original claim on 14 July 2018.

23    He also gave evidence that he had moved motions regarding business including governance matters, however those motions had been ignored by the representative body.

CONSIDERATION

24    As a general proposition, the authorisation of the persons constituting the native title applicant in respect of a claim under the Native Title Act is by the native title claim group in accordance with the provisions of s 251B of the Native Title Act. Materially, s251B provides that:

    where there is a process of decision-making that must be complied with under traditional laws and customs of the claim group, the native title applicant must be authorised by the claim group in accordance with that process (s251B (a)), however

    where there is no such process, the members of the claim group may authorise the native title applicant in accordance with a process of decision-making agreed to or adopted by the claim group (s251B (b)),

25    In circumstances where one or more members of the claim group comprising the native title applicant is unable to act, there is authority that the remaining members of the native title applicant are authorised to deal with all matters arising under the Native Title Act in relation to the native title application without the need for a separate or new authorisation meeting to be called. McGlade v Native Title Registrar (2017) 251 FCR 172; [2017] FCAFC 10 at [483] is authority that this includes making an application under s 66B(1).

26    Notwithstanding the provisions of s251B, s66B of the Native Title Act provides for replacement of the native title applicant in defined circumstances. Importantly, the section was amended by the Native Title Legislation Amendment Act 2021 (Cth) (Act No. 6 of 2021) in September 2021. Relevantly, it now provides:

(1)    One or more members of the native title claim group (the claim group) in relation to a claimant application… may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

(a)    one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

(i)    …

(iii)    the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

(iv)    the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

(b)    the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

(2)    The Court may make the order if it is satisfied that the grounds are established.

27    The rationale for the revision of s 66B was explained in the Revised Explanatory Memorandum to the Native Title Legislation Amendment Bill 2020:

32.     Finally, the amendments in Part 3 of Schedule 1 will simplify the process for a claim group to replace individual members of the applicant in circumstances where a member either passes away, or is no longer able to perform their duties, including through preagreed succession-planning arrangements. Currently an authorisation process under section 251B of the Native Title Act, and a further application to the Federal Court under section 66B, is the only way to change the composition of the applicant. This process can be costly and time consuming for native title claim groups, and may not be necessary in circumstances where the claim group allows for changes to be made without reauthorisation.

33.     These amendments will allow members of the applicant to be replaced in circumstances where a member has died or is unable to perform the duties of the applicant due to mental or physical incapacity through an application to the Federal Court. These changes will also allow the claim groups to put in place pre-agreed arrangements to replace members of the applicant. For many communities the composition of the applicant is important because individual members will represent family groups or particular areas within the claim group. This amendment will promote individual rights to culture by allowing the claim group to specify specific persons to represent their family or community in advance of a member of the applicant passing away.

(Footnotes omitted)

28    The Revised Explanatory Memorandum later provided:

106.    The Native Title Act currently requires a claim group to replace individual members of the applicant in all circumstances by authorising a new applicant under section 251B, and having the new applicant make an application for the Federal Court to replace them under section 66B. This is the case even where a member of the applicant is deceased or unable to act as the applicant because of physical or mental incapacity.

107.     This Part amends the Native Title Act to allow one or more members of the claim group to apply to the Court without needing to go through an authorisation process under section 251B in circumstances where an individual member of the applicant is deceased or is unable to act as a member of the applicant. It will also allow claim groups to put in place succession-planning arrangements for individual members of the applicant as part of the authorisation process.

29    For the purposes of this interlocutory application no party disputed, in either written submissions or in oral argument at the interlocutory hearing, that for the purposes of s 66B there is a valid claimant application before the Court, or that the replacement applicant seeking the interlocutory orders are members of the Danggan Balun native title claim group. Further, and specifically to the present case, I note that in Williams on behalf of Danggan Balun (Five Rivers) People v State of Queensland [2020] FCA 938 the Court ordered the replacement of the then-native title applicant with the current Danggan Balun applicant. It follows that the Danggan Balun applicant as presently constituted was validly authorised by the claim group in accordance with s 251B of the Native Title Act (at [21]-[27]).

30    For the interlocutory applicant to succeed in the present matter, it is necessary that it demonstrate for the purposes of s 66B that:

(1)    Notwithstanding that the interlocutory applicant is not the current Danggan Balun applicant, it or its constituent members have standing to bring the present interlocutory application;

(2)    Breach, by a member of the Danggan Balun applicant, of the terms and conditions of appointment as agreed by the authorisation meeting of the claim group, means that, for the purposes of s 66B of the Native Title Act, that applicant member is no longer authorised by the claim group to make the application and deal with matters arising in relation to it; and

(3)    Mr Dillon’s conduct breached the terms and conditions of appointment and as such he is no longer authorised within the meaning of s 66B of the Native Title Act.

31    In my view the case of the interlocutory applicant satisfies all of these criteria.

32    First, s 61(1) provides that a claimant application may only be brought by persons who are authorised by all persons forming part of the native title claim group, however this authority is, for the purposes of pursuing an application, vested in each of the authorised individuals personally, rather than as a collective group: Butchulla People v Queensland [2006] FCA 1063; 154 FCR 233 at [43]-[45]; Doolan v Native Title Registrar [2007] FCA 192; 158 FCR 56 at [57]-[60]. Further, the terms of s 66B(1) permit one or more members of the native title claim group to apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on grounds specified in the section.

33    It follows that the members of the interlocutory applicant, being members of the Danggan Balun claim group, can properly bring the interlocutory application currently before the Court. This is consistent with Resolution 5 of the authorisation meeting 15 February 2020, wherein the claim group authorised any “remaining Applicants” to continue to act and apply to remove the name of a member who was incapable, unable, or unwilling to act as a member of the Danggan Balun applicant.

34    Second, the authorisation of members of the Danggan Balun applicant by the claim group was subject to the terms of their appointment, as agreed and approved by the claim group. Specifically, the claim group agreed that a member of the Danggan Balun applicant who acted inconsistently with any resolution passed by the Danggan Balun applicant or the claim group at a properly called and constituted authorisation meeting was to be regarded as unwilling or unable to continue as a member of the Danggan Balun applicant: Resolution 6. The claim group agreed that, in such circumstances, the remaining members of the Danggan Balun applicant were authorised to apply to remove that person from the list of persons comprising the Danggan Balun applicant: Resolution 5.

35    A plain interpretation of these resolutions is that a member of the Danggan Balun applicant who acts inconsistently with any resolution passed by the Danggan Balun applicant, or passed by the claim group at a properly called and constituted authorisation meeting, is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it.

36    Third, on 15 February 2020 the claim group resolved that the members of the Danggan Balun applicant owe fiduciary obligations and duties to the Danggan Balun claim group, being:

    they must not place themselves in a position where their private or personal interests come into conflict with the interests of the members of the claim group;

    they must not pursue and secure personal benefits;

    they must not make a profit from their position of trust unless expressly permitted to do so with the informed consent of the Danggan Balun claim group; and

    they must act in the best interests of the Danggan Balun claim group and not for their individual, family or descent group’s interests.

37    Mr Dillon is a director of TNA Energy. He described it as “his” company. The interlocutory applicant asserted that Mr Dillon breached the terms and conditions of appointment, and therefore must be taken to be unwilling or unable to continue as a member of the Danggan Balun claim group, on the basis of the following conduct:

    pursuing personal benefits by allocating work to TNA Energy while performing the role of Cultural Heritage Co-ordinator for the Danggan Balun applicant;

    securing personal benefits amounting to $176,925 in disbursements paid to TNA Energy, by Everick Heritage Pty Ltd between January 2020 and June 2021;

    making a profit from his position of trust without permission from the Danggan Balun claim group; and

    acting inconsistently with resolution 11 passed by the Danggan Balun claim group at the 15 February 2020 authorisation meeting by breaching the approved terms and conditions.

38    This conduct allegedly occurred while Mr Dillon was not only a member of the Danggan Balun applicant, but a Cultural Heritage Coordinator with the Danggan Balun claim group.

39    At the interlocutory hearing, Mr Dillon did not dispute that the conduct relied upon by the interlocutory applicant had occurred, nor did he dispute that he had benefitted from contracts TNA Energy had entered into in relation to work conducted for the Danggan Balun claim group. Rather, Mr Dillon asserted that he was being persecuted by a number of parties owing to his success, and that members of the claim group had been aware, and agreed to, the conduct now relied upon by the interlocutory applicant. In those circumstances, he asserted, it would be entirely improper to remove him from the claim group. As Mr Dillon stated:

It has become an attack and that is why I have been vying for a 66B. And that is what I feel. It just a giant witch hunt and this is what I have tried to prove to you. This is what’s going on. They don’t want me there because they have seen that I have, you know, gone – I have made the opportunity because I do have a tradesman background. I know how to make money. I even made the group money. The group now has money sitting in the Tim Wishart bank account, which I was against. And I have been trying to get them to do governance. I have even sent the documents to QSNTS, which I can provide – which obviously, I don’t have now, but I can get to you if you would like. And I have been trying to show the group this from day 1.

40    In his affidavit dated 28 February 2022, Mr Dillon contended that all members forming part of the claim group receive some benefit, financial or other, stemming from their membership of that group: meeting attendance fees, wages for undertaking cultural heritage assessment work, inter alia. He further stated that the receipt of some form of benefit was commonplace in other claim groups as well.

41    Specifically, in relation to the disbursements paid to TNA Energy, Mr Dillon stated that this was clearly disclosed to the claim group on the basis that it had been a specific line item in their budget documents. Further, he asserted that all funds received by TNA Energy were used to pay back the loan required to purchase the excavator used in work for the claim group, and that the contracts entered into by TNA Energy allowed him to employ Indigenous people with flow-on economic benefits to the community.

42    The question before the Court in this interlocutory application is not whether or not Mr Dillon acted dishonestly. As Mr Wright rightly submitted at the interlocutory hearing:

…we don’t seek to make out and we don’t need to make out that Mr Dillon acted dishonestly. We simply submit that he acted in breach of his fiduciary duties by putting himself in those positions of conflict and in making personal gain, something that he ought not to have done. And therefore, he ought to be removed.

43    A person who is a member of a native title applicant owes fiduciary obligations to the claim group. As Greenwood J explained in Gebadi v Woosup (No 2) [2017] FCA 1467; 253 FCR 310:

100.    In determining whether Mr Woosup and Ms Tamwoy owed fiduciary obligations to the members of the Ankamuthi native title claim group, I apply all the considerations quoted at [98] of these reasons and, in particular, the observations at the quoted paragraphs at [244], [264][269], although all of the quoted observations are relevant to the question in issue. I have also had regard to these authorities: Re Wadi Wadi Peoples (1995) 124 FLR 110 at 124 per French J; Weribone v Queensland (No 2) [2013] FCA 485; (2013) 217 FCR 189 at [44][46] per Rares J; Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [58], [60][62] per Rares J. See also, as to matters of fundamental principle, the observations of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at pp 82 and 83. In Wik Peoples v Queensland (1996) 187 CLR 1 at 95, Brennan CJ considered submissions of the Wik People which asserted the existence of a fiduciary duty owed by the Crown to the indigenous inhabitants of the leased area. Although that was the context of the discussion by Brennan CJ (which is not the present context), nevertheless the statement of general principle remains important. Brennan J said this at pp 95 and 96:

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

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

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

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

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

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

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

44    I note that the obligations in Resolution 1 of the authorisation meeting are reflective of these general law duties.

45    At the time that the relevant Celestino Pty Ltd land development was agreed, it does not appear that Mr Dillon disclosed to, or sought approval from, either the Danggan Balun applicant or the Danggan Balun claim group, for TNA Energy to be engaged to provide excavator services. It is my understanding from the evidence of Ms Bonner (referable to information provided by Mr Robins of Everick) that TNA Energy provided such services from some time around January 2020. This evidence is not disputed. It is common ground that Mr Dillon personally benefitted from the engagement of TNA Energy, although he also gave evidence that other Indigenous persons similarly benefitted.

46    The evidence before the Court, including of Ms Bonner and Mr Davies, was that the other members of the Danggan Balun applicant did not became aware of Mr Dillon’s personal interest in the provision of excavator services by TNA Energy to Everick until the Danggan Balun applicant meeting of 9 June 2021.

47    Mr Dillon points to page 4 of the QSNTS Newsletter as evidence, however in my view this evidence is equivocal. It does not amount to disclosure by Mr Dillon to either the applicant or the claim group of any interest he had in commercial activities involving the claim group and third parties.

48    The evidence of Mr Davies was that Mr Dillon arranged for the allocation of excavation work. It appears that TNA Energy was included in the budget for approval of the Danggan Balun applicant by the time of the meeting of 9 June 2021. Ms Bonner also gave evidence that Mr Dillon at the meeting of 9 June 2021 confirmed to her and the other members of the Danggan Balun applicant that his company TNA Energy would be used for the excavation work.

49    Notwithstanding this, the evidence of Ms Bonner concerning information provided by Mr Dillon at the meeting of 9 June 2021 does not support a finding that Mr Dillon sought, and obtained, the informed consent of the Danggan Balun applicant, or the claim group, to the use of his company TNA Energy in the land development plan of Celestino. Such evidence of statements by Mr Dillon at that meeting rather paints a picture of Mr Dillon referring to the use of TNA Energy in relation to the excavator works. Presenting the contractual engagement of TNA Energy to the 9 June 2021 meeting as a fait accompli, in respect of a decision already made by him in the allocation of excavator works involving contracts of the claim group, is not consistent with the obligations of a fiduciary in the position of Mr Dillon.

50    As I have already noted Mr Dillon gave evidence that others, including other Indigenous people, had benefitted from the engagement of TNA Energy. This, however, is not the point. A fiduciary must not put themselves into a position of conflict, or where they make a personal profit from the position of trust, without the permission of the beneficiary – in this case the Danggan Balun claim group.

51    On the evidence, Mr Dillon has acted inconsistently with Resolution 1 of the authorisation meeting of 15 February 2020 and is taken to be unwilling or unable to continue to act as a member of the Danggan Balun applicant. It follows that, pursuant to the terms and conditions of appointment of the members of the Danggan Balun applicant as agreed by the claim group, he is no longer authorised to act as a member of the Danggan Balun applicant.

52    The interlocutory applicant also alternatively submitted that, by breaching the terms and conditions of appointment of the Danggan Balun applicant, Mr Dillon had exceeded the authority given to him by the claim group to deal with matters arising in relation to the Danggan Balun claim. In my view, in circumstances where Mr Dillon is plainly no longer authorised, it is unnecessary for me to decide this point.

53    It follows that the interlocutory applicant is entitled to the relief sought.

Associate:

Dated:    7 April 2022