Federal Court of Australia

QGC Pty Limited v Alberts (No 4) [2022] FCA 1590

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer with each other and Trevor Hauff Lawyers as to the form of any relief that the Court should order, consistent with the Court’s reasons for judgment delivered today and file and serve on or before 25 January 2023 proposed agreed orders or in default of agreement marked-up orders showing any disagreed wording and submissions limited to 2 pages.

2.    The proceeding stand over to 31 January 2023 at 9:30 am AEST for the making of orders and case management.

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

REASONS FOR JUDGMENT

RARES J:

1    On 29 April 2021, I delivered reasons in which I construed the Indigenous Land Use Agreement (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): QGC Pty Ltd v Alberts (No 2) [2021] FCA 540. I had resolved two earlier disputes in respect of the ILUA in, first, Conlon v QGC Pty Ltd (No 2) (2017) 359 ALR 460 and, secondly, QGC Pty Ltd v Alberts [2020] FCA 1869. I described the history of the ILUA and the issues to which it had given rise to the respective points in time in those judgments and will not repeat that here except to the extent necessary.

2    During final submissions in the hearing that occurred on 27, 28 and 29 April 2021, QGC Pty Ltd suggested that the Tribunal and the representative body, Queensland South Native Title Services Limited (QSNTS), might be able to assist under ss 108(1B)(b), 203BK(3) and 203BF(1)(a)(ii) of the Act in formulating a process through which each of the eleven families could meet, either individually or collectively, to decide whether to establish one or more nominated entities to receive, hold and distribute the money that QGC had paid into Court and future money that it was liable to pay under the ILUA: QGC (No 2) [2021] FCA 540 at [79].

3    I made a declaration on 29 April 2021 that the ILUA:

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.”

4    This led to me making orders on 28 May 2021 (the 28 May orders) as a result of the Tribunal, pursuant to s 203BK(3), agreeing to assist QSNTS in performing its functions under s 203BF(1)(a) to assist the 11 families, as defined in cl 1.1 of the ILUA, to reach agreement regarding the establishment of one or more nominated entities. It was necessary to make several amendments to the timetable and some of the steps in the 28 May orders (collectively, the entity establishment orders).

5    Relevantly, cll 1 and 2 of annexure 3 to the ILUA provide (as construed in accordance with the implied term in the declaration made on 29 April 2021 referred to in [3] above, which is included in italics below):

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 …:

(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 …

…

2    Nomination of the Nominated Entity

2.1    As soon as practicable alter the later of:

(a)    the Authorisation Date; or

(b)    the establishment of the Nominated Entity, if there is no Nominated Entity at the Authoritisation 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.

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.

(words in italics added)

Background

6    On 13 December 2017, I decided that a deed dated 16 February 2015, that purported to amend the ILUA, had no force or effect: Conlon 359 ALR 460.

7    On 18 May 2018, QGC commenced this proceeding and interpleaded due to its concerns about the position of BCJWY Aboriginal Society Ltd no longer being capable of receiving or administering the distribution of moneys payable under the ILUA. Before then, the native title party, as defined in the ILUA, had appointed Trevor Hauff Lawyers (TH Lawyers), the principal of which was Mr Hauff, to act for it in relation to seeking a replacement for BCJWY as nominated entity. Mr Hauff pursued a course of seeking to establish, initially, Murra Downs Pty Ltd, and later, Boonyi Downs Pty Ltd, as the new nominated entity. The steps that Mr Hauff, through his firm TH Lawyers, took in this proceeding to have Boonyi Downs replace BCJWY failed for the reasons that I gave on 29 April 2021 in QGC (No 2) [2021] FCA 540 at [68]–[75]. However, as I discussed in those reasons (at [76]–[84]), that failure provoked the solution that the parties ultimately decided to pursue in agreeing to the entity establishment orders made on 28 May 2021 and their subsequent implementation.

8    In QGC (No 2) [2021] FCA 540, I found:

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 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.

…

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(2) 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.

…

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’”.

…

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.

…

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.

…

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.

(bold emphasis in original; italic emphasis added)

9    After I made the 28 May orders and, from time to time, the entity establishment orders, the Tribunal and QSNTS successfully facilitated meetings of all 11 families, albeit that some meetings and steps in the entity establishment orders occurred later than originally planned.

10    In the result, each of the 11 families decided to establish a separate entity for itself.

11    On 4 May 2022, I made orders that required the five original signatories to the ILUA who were then still alive, willing to act (ie: who had not filed submitting appearances) and had capacity, to file and serve affidavits and submissions by 17 June 2022, as to compliance with the entity establishment orders and annexure 3 of the ILUA, formation of each nominated entity that the 11 families had formed or, at that stage, were seeking to form or nominate, and to provide evidence of the giving of notice to QGC of the nomination of the nominated entity and the details of its bank account, so that QGC could make payments to it in the future.

12    This gave rise to an issue under cll 1.2, 2.1 and 2.2 of annexure 3 of the ILUA. Kylie Jerome, the eighth respondent and one of the individual signatories on behalf of a family comprising the native title party to the ILUA, has withheld joining the other four, active, signatories (the majority signatories), being Natalie Alberts, Mona Booth, Patricia Conlon and Elizabeth Johnston, the first, third, fifth and seventh respondents respectively, in giving QGC written notice of the nomination of the nominated entities and their bank account details.

13    By the time of the hearing in April 2021, QGC had filed evidence and made submissions that sought to assist the Court in a similar way to an amicus curiae or trustee seeking advice; that is, it was concerned to ensure that all relevant issues were raised and addressed and it sought to provide the Court with assistance on aspects that the other active parties may not have dealt with fully. QGC also, voluntarily, provided financial assistance to facilitate compliance with the entity establishment orders so that there would be nominated entities to which the money, that QGC had promised, could be paid.

The Establishment of the New Nominated Entities

14    The parties adduced evidence of compliance with the entity establishment orders by each of the 11 families. As at the date of the next hearing on 27 July 2022, the position of each family’s compliance with the entity establishment orders was as set out in the table below:

Issues

15    The following issues now require resolution:

(1)    Has each of the 11 families complied with the entity establishment orders (the compliance issue)?

(2)    Should the funds held in Court and any future payments be distributed equally to each of the 11 nominated entities, that the 11 families have established in accordance with steps provided in the entity establishment orders, or equally per capita of the total of all persons in the 11 families (the distribution issue)?

(3)    Were TH Lawyers validly appointed by the native title party to act on its behalf so as to make the native title party liable to TH Lawyers for its costs and disbursements (the claimed costs) of acting on its behalf (the TH Lawyers appointment issue)?

(4)    Do TH Lawyers have an equitable lien over, or other enforceable right in respect of, the financial benefits that QGC paid into Court and is liable to pay in the future in respect of the claimed costs (the lien issue)?

16    In QGC (No 2) [2021] FCA 540 at [80]–[82], I found that the money currently paid into Court is held on trust for the claim group and all persons who, by force of s 24EA(1) of the Act, are parties to the ILUA, until the claim group and the families established one or more nominated entities that could be used to enable the fulfilment of the purposes of the ILUA.

(1)    The compliance issue

17    On 14 June 2022, TH Lawyers gave a notice under cll 2.1 and 2.2 of annexure 3 (a cl 2 notice) that (among other nominated entities) Jarowair was the nominated entity of the Jerome family. Ms Jerome disputed TH Lawyers’ authority to act on behalf of the Jerome family because she had not instructed TH Lawyers on behalf of the Jerome family to give that notice and, thus, impugned the validity of that cl 2.2 notice.

18    At the hearing on 27 July 2022, the parties agreed that the only dispute between them as to compliance with the entity establishment orders was as to whether Jarowair had given or had to give QGC a notice under cl 2.2 of annexure 3. Ms Jerome accepted that the other 10 nominated entities had given QGC valid cl 2 notices.

19    The dispute between the majority signatories and Ms Jerome raised the question as to how cll 2.1 and 2.2 of annexure 3 of the ILUA operated where there was more than one nominated entity and, first, not “all signatories to this Agreement” were alive, active or with capacity and, secondly, there was no unanimity as to the giving of a written notice and direction.

20    Initially, in her affidavit of 16 June 2022, Ms Jerome explained that she was not able to provide details of Jarowair’s bank account or to give a written notice and direction to QGC because of complaints about Mr Hauff that she had, but ultimately did not press at hearing.

21    QGC referred to the requirement in cl 2.2 of annexure 3 that all of the signatories to the ILUA, rather than the nominated entity, give a notice and direction to QGC. QGC raised the question as to how that requirement should be construed and whether it could act on a notice and direction from a nominated entity not given by all of the signatories to the ILUA. QGC submitted that by the parties engaging in the process of complying with the entity establishment orders and it having paid the unpaid but due benefits into Court, cl 2.2 of annexure 3 had been satisfied.

Did Ms Jerome have to authorise any cl 2 notice?

22    I reject Ms Jerome’s argument. In my opinion, while cl 2 of annexure 3 is infelicitously drafted and the ILUA is not a commercial document, that clause must be construed so as to avoid it making commercial nonsense or working commercial inconvenience. Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ held in Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at 559 [82]:

It was necessary to construe the Deed Poll so as to avoid it making commercial nonsense or working commercial inconvenience (Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 313-314, per Kirby P). Its commercial purpose — the purpose of reasonable persons in the position of TOC and the plaintiff — was relevant (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 351, per Mason J). That, in turn, required attention to ‘‘the genesis of the transaction, the background, the context, the market’’ in which the parties were operating, as known to both parties (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350, per Mason J, quoting Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574, per Lord Wilberforce).

(emphasis added)

23    Clause 2 must be read as a whole. Clause 2.1 requires that the native title party give QGC a notice of the establishment of a nominated entity, as well as its name and address. In doing so, cl 2.1 specifies that the native title party acts on behalf of the families. Ms Jerome did not suggest that the Jerome family had not appointed Jarowair as its nominated entity under the entity establishment orders. The evidence demonstrated that the Jerome family had appointed Jarowair as its nominated entity. Thus, the native title party, through TH Lawyers, validly notified the establishment of Jarowair under cl 2.1.

24    Ms Jerome’s argument raised the question of whether cl 2.2 required a separate notice to be given and, if so, what its contents were. Clause 2.2 begins by referring to the fact of establishment of the nominated entity and then imposes a requirement on QGC to transfer the benefits payable under the ILUA (ie: the moneys then due and due in the future when they become payable) to the nominated entity, after “all signatories to this [ILUA] have provided written notice and direction to transfer the Benefits to the Nominated Entity”.

25    The signatories are unlikely to have intended that QGC be included as one of the “signatories” that had to give the written notice and direction under cl 2.2 to QGC. That is because it could hardly have been expected to give a direction to itself. There would be little point in the parties to the ILUA requiring a plethora of notices, one under cl 2.1 and a second under cl 2.2, from different persons directed to notifying QGC of the same information.

26    The “Parties” had agreed, in cl 1.1 of annexure 3, that the purpose of establishing a nominated entity was that it be used for the purpose of holding the benefits payable under the ILUA. Thus, the expression “all signatories to this Agreement have provided written notice and directions” in cl 2.2 operates like a recital. It refers to the native title party, not the persons (including QGC), who signed the ILUA. Moreover, if Ms Jerome’s argument were correct, if any individual who signed the ILUA subsequently died or lacked capacity to sign a separate notice under cl 2.2, the purpose of the ILUA would be defeated.

27    Once a nominated entity is established, cl 2.1 requires the native title party to give QGC a notice in writing of its name and address. Next, cl 2.2 seems to refer to a state of affairs that, once the steps in cll 1 and 2.1 have occurred, then the fact of their occurrence will have the necessary consequence or effect of giving QGC a direction to pay the benefits to the nominated entity. That is because the purpose of the notification in cl 2.1 is to inform QGC of the accomplishment of the parties’ agreement in cl 1.1 that the families have established a nominated entity to which QGC can pay the benefits.

28    In this context, cl 2.2 simply reflects a confirmation (albeit clumsily drafted) of the accomplishment of the tasks in cll 1 and 2.1 and provides QGC, once it has received a notification under cl 2.1, with authority to pay the benefits to the nominated entity or entities. Accordingly, a notice given by the native title party to QGC under cl 2.1 will satisfy the requirements of cl 2.2 for a notification and direction.

29    I reject Ms Jerome’s argument that the individual signature of each person who comprised the native title party is necessary for a notice to satisfy cl 2.2 or that cl 2.2 has not already been satisfied. The signatories to the ILUA are QGC and the native title party (as a composite), not the individuals who comprised the latter. As I explain below in deciding the TH Lawyers appointment issue, the native title party can act, as it did, by majority in giving a notice under cl 2.1.

Must a cl 2 notice identify the nominated entity’s bank account?

30    The words of cll 2.1 and 2.2 do not require any notice or direction that specifies a bank account to which QGC must make payments.

31    As QGC submitted, the purpose of the entity establishment orders was for the families to resolve as to whether they wished to appoint one or more nominated entities to which QGC should pay the money in Court and any future benefits that QGC had to pay. As I have found, the establishment of the 11 nominated entities and the notification of that fact to QGC satisfied any requirement of cl 2.2 of annexure 3.

32    In 2010, when the parties entered into the ILUA, a notice or direction to pay, ordinarily, would have been understood to require the obligor to pay the specified payee (here, the nominated entity) the relevant money. That usually occurred by the obligor giving the payee a cheque or bill of exchange drawn in its favour or in favour of another person nominated by the payee. Since 2010, ordinary commercial life has seen electronic funds transfer become a usual, if not the predominant, means of payment. That is not to deny its use in 2010; it is only to recognise that the use of electronic funds transfer has increased greatly over the last 12 years corresponding with the declining use of cheques and cash. Hence, the entity establishment orders required that QGC be given the details of each nominated entity’s bank account to facilitate electronic funds transfer of what was due to it. However, cll 2.1 and 2.2 did not require identification of a bank account, as opposed to a nominated entity that would be the payee of the benefits then due.

33    Moreover, QGC’s submission that its payment into Court makes further compliance with cl 2.2 unnecessary has support from the terms of cl 2.3 of annexure 3. Clause 2.3 provides that if a nominated entity were not established by 31 December 2010, QGC could pay the money then due into a named firm of solicitors’ trust account for it to be held on trust for the purposes of the ILUA.

34    At the time of the hearing, eight of the nominated entities had yet to give QGC details of any bank account to enable it to pay directly to such an account their shares of the amounts held in Court or due in the future. That was because most of those nominated entities had not then established a bank account. Once each nominated entity gives QGC the bank account details, all of the nominated entities will have complied with the entity establishment orders.

(2)    The distribution issue

35    Ms Jerome argued that the sum held in Court and the amount of each future payment due by QGC under the ILUA should not be distributed to the 11 nominated entities in equal one eleventh shares, but per capita based on the number of persons in each of the 11 families. That is the nub of the distribution issue.

36    I reject Ms Jerome’s argument. First, the ILUA identified the “Families” as the generic persons who, if a family’s representative signed it, would together comprise the native title party.

37    Secondly, cl 1.1 of annexure 3 recorded the agreement of the parties to establish the nominated entity (or entities) to be used for the purposes of holding the moneys that QGC paid under the ILUA “for the Families”. In cl 9(b)(ii) of the ILUA, the native title party agreed, on its own behalf and on behalf of the native title group (which cl 1.1 defined as “those people who hold or may hold Native Title in the ILUA Area”), that the benefits that QGC was to provide under the ILUA were “for the benefit of the Native Title Party [being the families whose representatives signed the ILUA] and members of the Native Title Group”. The reference to the members of the native title group appears to have been included so that it would make a party to the ILUA anyone who was not a member of one of the 11 families but was otherwise deemed to be a party by force of s 24EA(1)(b) of the Act, because he or she was a person who held native title in relation to any of the land in the ILUA area. Similarly, cl 5.4 of annexure 2 to the ILUA, which dealt with a cultural heritage management strategy, provided that each family group (defined in cl 1.1 of the ILUA as meaning “the Barunggam, Cobble Cobble, Jarowair, Western Wakka Wakka and Yiman groups, with which some of the Families identify”) had to nominate a list of up to 20 trained field officers, whom the native party had authorised as trained to make cultural heritage assessments, to assist QGC in acting in accordance with the cultural heritage management strategy. Consistently with cl 1.1, cl 1.2 of annexure 3 gave the families, not their individual members, roles in establishing a nominated entity and cl 2.1 provided that, once established, the native title party “on behalf of the Families” had to notify QGC of the entity’s name and address.

38    Thirdly, it is obvious that over the projected 10 year life of the ILUA there would be births and deaths that would alter the numerical composition of each family from time to time. The ILUA did not provide any mechanism to conduct and keep up to date an accurate compilation or census of each family so as to enable a per capita calculation of how much would be distributed to it or the dates on which QGC had to calculate that amount. If Ms Jerome’s argument were correct, there would be numerous opportunities for disputes within and between families as to how the numbers of each family were to be decided. Moreover, there was no one specified in the ILUA with authority to decide such a dispute or settle the issue if it arose.

39    In my opinion, Ms Jerome’s construction of the ILUA as requiring the per capita distribution of the benefits paid and payable in the future by QGC has no sufficient textual support in the wording of the ILUA. That construction is unworkable and lacks commercial common sense: Zhu 218 CLR at 559 [82]. It would leave QGC in the invidious position of being uncertain whether it had complied with its obligation to pay the nominated entity of any particular family what was due, which could alter from day to day because of births and deaths. The ILUA left it to each family under cl 1 of annexure 3 to determine how to apply its aliquot share of the benefits in the way most appropriate to advance the interests of its members.

(3)    The TH Lawyers appointment issue

40    In the first half of 2018, the native title party members were confronted with the difficulty that QGC had refused to pay any more moneys as benefits after it became apparent that BCJWY was no longer capable of acting as the nominated entity under the ILUA. Thus, because of QGC’s reasonable stance, the native title party was required to act in accordance with the ILUA to decide what to do to replace BCJWY.

41    Clause 3(a) of the ILUA provides:

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.

(emphasis added)

42    Ms Jerome argued that the native title party was not “required to make any decision under the [ILUA]” in relation to TH Lawyers’ retainer to act for it. She contended, with some support from QGC, that such a decision was outside the scope of cl 3(a) of the ILUA and that, accordingly, the native title party had to act unanimously in the absence of any other provision in the ILUA authorising it to act by majority. She contended that there was no provision in the ILUA dealing with the native title party appointing or retaining a lawyer. Accordingly, she submitted, apart from the brief period between April 2018 and June 2018 when she also agreed to TH Lawyers’ retainer, the native title party had not engaged the firm but rather the majority as individuals had. On this basis, she asserted that the work done by TH Lawyers, while retained only by the decisions of the majority signatories, was not performed on behalf of the native title party or any other person with functions under the ILUA.

Construction of cl 3(a)

43    In my opinion, for the reasons that follow, the circumstances in which the native title party found itself after BCJWY became incapacitated required the native title party “to make [a] decision under this [ILUA]” within the meaning of cl 3(a) as to how to enable the trust moneys constituting the unpaid but due benefits that QGC was holding to be paid to a new nominated entity or other person under cll 1–3 of annexure 3, including to appoint a lawyer to act for it.

44    The construction of cl 3(a) of the ILUA is not without difficulty. While it is clear that the native title party can make a “decision” by majority, the question is what is the nature of such a decision. The expression “it is required to make any decision under this [ILUA]” in relation to the native title party can refer to, either, an obligation or duty to decide some existing issue (the duty meaning) or, alternatively, a description of the decision-maker in whom the instrument has reposed a discretion (the description meaning).

45    In Torres Strait Island Regional Council v Ahwang [2022] QCA 39 at [38], Mullins JA, with whom Boddice and Crow JJ agreed, construed a statutory provision that applied to a trustee who “is required to make a decision about land” as conveying the description meaning; that is: the provision identified the person to whom the statute entrusted a discretion.

46    The purpose of cl 3(a) was to enable a majority of the native title party to make discretionary decisions in performing its role under the ILUA. Each of the individuals who comprised the native title party owed fiduciary obligations to the members of the native title group as a whole, because of its responsibilities under cl 9 of the ILUA and cl 1.1 of annexure 3 to ensure that the benefits that QGC provided were used or distributed for the benefit of the families, the individuals comprising the native title party and the members of the native title group. Thus, the individuals comprising the native title party were under an obligation to act in the interests of the families and the members of the native title group as a whole, as envisaged by the provisions of the ILUA.

47    For example, cl 11(f) of the ILUA contemplates that the native title party will be able to demonstrate to a mediator of a dispute it has with QGC that it does not have the resources to meet the cost of legal or other expert representation in the dispute. In such a situation, the native title party is not “required” to make a decision whether or not to be represented in the mediation with QGC or to assess whether it has the resources to pay for that representation. The ILUA did not require the native title party to make those decisions. It would lead to commercial inconvenience if the native title party’s discretions to assess in the first place, for itself, whether it needs to be represented and or it has the capacity to pay for that representation had to be exercised unanimously: Zhu 218 CLR at 559 [82].

If cl 3(a) does not apply, must the native title party act unanimously?

48    The ILUA contemplated that the native title party and its members had to act in the character of fiduciaries in respect of decisions affecting the members of the native title group (including themselves) in numerous matters, including the establishment of a nominated entity that would hold, administer and distribute the moneys that QGC had agreed to pay (as cl 9 and annexure 3 provided).

49    A “fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense”: Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96 per Mason J; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at 34–35 [87] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ. However, a contract can shape, mould or even exclude the nature and extent of a fiduciary relationship, whether of a traditional kind or one arising out of a commercial relationship: John Alexander’s Clubs 241 CLR at 35–37 [90]–[93].

50    As a fiduciary, each of the individuals who comprised the native title party under the ILUA had proscriptive obligations that he or she would not, without the informed consent of the members of the native title group, first, obtain any unauthorised benefit from the relationship and, secondly, be in a position where his or her interests or duties conflicted or there was a real and sensible possibility of such a conflict: Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165 at 197–198 [74], 199 [78]–[79] per McHugh, Gummow, Hayne and Callinan JJ.

51    Here, the internal dysfunction of the native title party prevented it from acting unanimously, except for a brief period, in deciding whether to appoint a lawyer or to pursue a particular course in seeking to deal with the difficulties created by the governance failures in, and later administration, followed by liquidation, of BCJWY and the disagreements about whether any, and if so which, new nominated entity could be appointed under annexure 3 to the ILUA. The majority signatories decided to appoint Mr Hauff’s firm to pursue the litigation.

52    There is nothing in the terms of the ILUA that appointed the native title party, or each individual who comprised its members, to be, or to act as, a trustee. A trust has four essential elements, namely, a trustee, trust property, one or more beneficiaries or a charitable purpose and the trustee’s personal obligation annexed to the trust property: Jacobs’ Law of Trusts in Australia (8th ed) at [1-04].

53    It is a principle of the law of trusts that, unless the trust instrument otherwise provides, trustees must act unanimously: Leyton v Sneyd (1818) 8 Taunt 532 at 535 per Dallas CJ, Park and Burrough JJ; Luke v South Kensington Hotel Company (1879) 11 Ch D 121 at 125–126 per Jessel MR, 128 per James LJ, Bramwell LJ agreeing; Astbury v Astbury [1898] 2 Ch 111 at 115–116 per Stirling J; Australian Olympic Committee v Big Fights Inc (1999) 46 IPR 53 at 150 [412] per Lindgren J; Sky v Body (1970) 92 WN(NSW) 934 at 935–936 per Street J; Jacobs’ (8th ed) at [16-14].

54    However, this rule does not apply to other fiduciaries such as executors, one of whom may be able to enter into a transaction to deal with the testator’s real or personal property without the consent of any co-executor: Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 at 499–500, 506 per Griffith CJ, 508 per Barton J, 516–517, 519 per Isaacs J, 526–527 per Higgins J; Colyton Investments Pty Ltd v McSorley (1962) 107 CLR 177 at 184 per Dixon CJ, Kitto and Windeyer JJ. If another executor challenges the propriety of the dealing, the Court will insist upon it being satisfied of the propriety of the terms, and especially the price, of the transaction, before it will enforce it against the estate, and so deprive the beneficiaries of the property (Colyton 107 CLR at 185). And, of course, in a partnership, being another fiduciary relationship, ordinarily each individual partner has ostensible and (in the absence of a constraint in the partnership agreement) actual authority to bind the firm by his or her own decision or act in the usual way of business: see Partnership Act 1891 (Qld) s 8.

55    Thus, the mere fact that the members of the native title party have fiduciary obligations under the ILUA does not require them to act unanimously in matters to which cl 3(a) might not apply. They are not trustees.

56    It follows that the majority of the native title party had authority to enter into a retainer with TH Lawyers to act for the native title party in this proceeding, regardless of any dissent of a minority who voted or abstention or non-participation.

Conclusion

57    Clause 3(a) authorised the native title party to make such a decision, as it did in appointing TH Lawyers to act for it, by majority. In any event, regardless of whether cl 3(a) applied, I am satisfied that the native title party was able to act by majority because, for the reasons I have given, it and its members were not trustees.

(4)    The lien issue

58    The lien issue raises the following questions, namely:

(a)    whether and, if so, to what extent, did Mr Hauff’s efforts, through TH Lawyers, to pursue a course, albeit unsuccessful, of replacing BCJWY with Murra Downs and, ultimately, Boonyi Downs, create a sufficient causal link to the successful creation of the 11 replacement nominated entities to which the moneys held in Court can be paid, to justify TH Lawyers’ claim for the equitable right to be paid out of those moneys?

(b)    if the answer to that question is that no such right was created, whether the nominated entities, for which TH Lawyers acted, agreed to pay TH Lawyers for those efforts?

(c)    whether TH Lawyers complied with the Legal Profession Act 2007 (Qld) and, if not, whether the consequence is that they cannot recover their costs?

59    TH Lawyers claim that the native title party (by at least a majority of its surviving active members with capacity) retained them to act from January 2018 in relation to seeking to assist it in obtaining payment of the benefits from QGC, after it became apparent that BCJWY could no longer receive those benefits as the nominated entity. TH Lawyers argued that it had acquired an equitable right or lien to be paid its costs of acting for the native title party out of the money paid into Court in accordance with the principles that Jordan CJ, giving the reasons of himself, Davidson and Halse Rogers JJ, stated in Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96.

60    Prior to the hearing, pursuant to orders I had made, a Registrar issued a certificate of taxation for the bill of costs prepared by TH Lawyers, annexed to Mr Hauff’s affidavit filed on 8 June 2021. That certificate quantified the costs that TH Lawyers could recover as either $299,384.18 on a solicitor/client basis or $244,687.57 on a party/party basis.

61    Ms Jerome and QGC raised issues as to the relevance of certain (and, in Ms Jerome’s case, all) of the work that TH Lawyers performed the subject of the bill to the achievement of the result for which TH Lawyers made their claim.

62    Ms Jerome accepted that between 10 April 2018 and 20 June 2018 (the agreed retainer period) she had agreed to TH Lawyers being retained to act for the native title party, so that during this period the six then capable active surviving signatories of the ILUA had unanimously retained the firm. However, she contended that, in the periods before and after the agreed retainer period, the absence, or subsequent withdrawal, of her agreement to the retainer caused it to cease being an engagement of TH Lawyers by the native title party and, instead, it became an engagement by the four other individuals who, with her, now comprised the active members with capacity of the native title party.

63    Ms Jerome argued that TH Lawyers’ efforts did not result in them obtaining a judgment, award or compromise for the payment of money to their client(s). She contended that there were “no fruits to [TH Lawyers’] labour”. Rather, she submitted, the claims that TH Lawyers had pursued, that Murra Downs or Boonyi Downs should be found to be the new nominated entity, had failed (QGC (No 2) [2021] FCA 540), as had the earlier attempt to substitute new persons to replace signatories to the ILUA who had died or lost capacity (QGC [2020] FCA 1869).

64    Next, Ms Jerome argued that TH Lawyers had failed to prove that their efforts were responsible for, or had a sufficient causal link to, the judgment, award or compromise from which the right to payment of money to their clients (being the native title party, the majority signatories or the individuals who had instructed Mr Hauff) derived. She contended that the entity establishment orders, including the construction of the ILUA at which I arrived, that there could be more than one nominated entity, could not be characterised as contributing sufficiently, or at all, to those orders that will result in the payment of money to the 11 nominated entities occurring when there is full compliance with those orders.

65    She submitted that QGC paid the moneys into Court before TH Lawyers filed the cross claim on behalf of their clients. Ms Jerome accepted that the cross claim assisted in the Court making orders that established a new membership for the cultural heritage consultation committee under provisions of the ILUA. But, she argued, that was not a monetary result and so it could not fall within the principle on which TH Lawyers relied to recover their costs. She contended that TH Lawyers also acted in the proceeding for persons additional to those comprising the native title party or the majority signatories.

66    QGC argued that the authorities, including Roam Australia Pty Ltd v Telstra Corporation (trading as Telecom Australia) [1997] FCA 980, required TH Lawyers to establish that their labour resulted in recovery of the fund in respect of which the equitable right of a solicitor to recover his or her costs arises. QGC contended that the “fruits of the labours” on which TH Lawyers relied included matters, such as the reestablishment of the cultural heritage committee, that appeared to be unconnected with the payment of the financial benefits to the nominated entity under the ILUA.

Consideration

67    In Patience 40 SR (NSW) at 100, 103 and 107–108, Jordan CJ explained the principle on which a solicitor is entitled to an equitable right to have his or her costs paid out of the money which the solicitor’s client recovers under a judgment, award or compromise in a proceeding in which the solicitor has acted. There, the Full Court found that the solicitor “was instrumental in obtaining for his client the verdict which has been given” (at 103). Jordan CJ made clear (at 107–108) that where the solicitor’s client was suing “for the benefit of all persons interested”, others who would benefit from the result obtained “cannot approbate and reprobate. They cannot claim to be entitled to the fruits of the action and at the same time repudiate the right of the solicitor, who caused it to fructify, to receive his costs out of the fruits”. Jordan CJ also held (at 108) that the solicitor’s remedy provided by the Court’s inherent jurisdiction “is a flexible one. It is available whenever a right to receive money has been established as a result of legal proceedings” even if the costs have not been taxed.

68    In Roam [1997] FCA 980 at page 4, Lehane J explained that the principle applied even where the solicitor’s exertions had finished before the client obtained the judgment, award or had negotiated the compromise resulting in the client’s right to receive money. Lehane J held that the solicitor’s equitable right did not arise automatically but only when “the requisite causal link is established” (at page 5). That is, the solicitor must show that, on the evidence, his or her efforts can be regarded as having wholly or partially brought about the judgment, award or compromise. Lehane J held (at pages 5–6):

Where solicitors have been actively involved over a considerable period in acting for a party to successful litigation, the conclusion is likely to follow that the solicitors have been instrumental in obtaining the result, or that the result is (at least in part) due to the solicitors’ efforts.

…

the solicitors received instructions in November 1995, some five months after the proceedings had been commenced.  They continued to act in the proceedings for about 16 months, ceasing to do so shortly before trial.  They ceased to act because they chose to terminate their retainer, in circumstances where, on Mr Monteith’s evidence, they were told that Roam was not in the position to pay sums required to meet the solicitors’ costs and counsels’ fees.  They briefed counsel from time to time, they attended directions hearings, they attended to discovery and inspection and obtained affidavit evidence; they acted for Roam on a mediation, which failed to achieve settlement; they took part in some further unsuccessful settlement negotiations. 

On that evidence, and consistently with the authorities, I cannot resist the conclusion that the solicitors were instrumental in obtaining the compromise which led to the final orders.  No suggestion was made that anything turns on the precise terms of the compromise or on any comparison between those terms and the relief which had been claimed by Roam in the proceedings.  Certainly nothing in the authorities suggests that any such comparison is relevant: the questions seem to be, first, did the proceeding result in a judgments award or compromise under which money is payable to the party for whom the solicitors acted; and, secondly, was the part played by the solicitors sufficient to justify the conclusion that there is a sufficient causal link between the solicitors’ efforts and the result, so that the solicitors may be regarded as having been instrumental in obtaining the result.

(emphasis added) 

69    TH Lawyers had acted for at least the majority of the native title party in the successful challenge to the purported amendment of the ILUA that I upheld in Conlon 359 ALR 460. This result provoked QGC’s reaction in its letter of 20 December 2017 that required the native title party to identify a nominated entity to which QGC could pay the benefits under the ILUA then due but unpaid. When the apparent divisions among the members of the native title party persisted, QGC commenced this proceeding on 18 May 2018. At that time, all the living members of the native title party, with capacity, either had resolved to engage TH Lawyers to act for it or chosen to abstain from fulfilling their roles as members. While Ms Jerome sought to withdraw her approval in June 2018 soon after the proceeding commenced, the retainer remained on foot because, as I have found, it continued to be authorised by the majority signatories. Subsequently, TH Lawyers successfully opposed the claim by BCJWY’s administrators to be paid the funds held by the Court.

70    Mr Hauff, as principal of TH Lawyers, advised the native title party or the majority signatories and, on their instructions, took steps to create, first, new members of the native title party and, secondly, a new nominated entity, Murra Downs and later, Boonyi Downs, which efforts ultimately failed for the reasons I gave, first, on 20 December 2020 (QGC [2020] FCA 1869) and, next, on 29 April 2021 (QGC (No 2) [2021] FCA 540). In addition, on 28 November 2018, there were consent orders, after a mediation, for the reestablishment under the ILUA of both the cultural heritage and implementation committees, which TH Lawyers had sought.

71    Having regard to the difficulties that flowed from the drafting of the ILUA, that QGC’s need to interplead reflected, I do not think that TH Lawyers’ lack of success, acting on behalf of the native title party, in seeking forensic solutions to address the events that had happened disentitles them from being able to enforce the equitable right. QGC saw no solution in May 2018 and interpleaded so as to leave it to the other signatories to the ILUA to sort out the problem of identifying a proper payee of the benefits. The drafting of the ILUA did not appear to have taken into account the possibility that there should be a future situation where there was no functional nominated entity, several signatories had died or become incapable and the remaining signatories were dysfunctional. If TH Lawyers had not taken up the challenge, nothing would have happened and the moneys would have remained in Court. That would have left the families and their members without the benefit that the parties to the ILUA intended that they should have. In a real sense, the unsuccessful applications provoked QGC to re-engage and led directly to the compromise or process that QGC suggested as embodied in the entity establishment orders.

72    The actions of TH Lawyers caused the funds that QGC paid into Court to be protected from BCJWY’s administrators’ claim and led to the reestablishment of the two committees, my construction of the ILUA that there could be more than one nominated entity as well as to the cooperative solution that QGC, and later the parties, QSNTS and the Tribunal, developed, that was embodied in the 28 May and entity establishment orders.

73    In my opinion, TH Lawyers’ conduct was instrumental in obtaining the result that the substantial compliance to date with the entity establishment orders has now produced. Of course, that result was not identical to the intention behind TH Lawyers’ advice to promote Murra Downs and later Boonyi Downs as the replacement nominated entity. Nevertheless, the native title party or the majority retained TH Lawyers to pursue a course of having the Court decide whether a new nominated entity had been appointed validly under annexure 3 of the ILUA. That application resulted in the construction of the ILUA in QGC [2021] FCA 540 that there can be more than one nominated entity which, in time, had the result that the benefits due under the ILUA can now be paid to the families and claim group members. Thus, TH Lawyers achieved the result that now has enabled the moneys in Court and due in the future to be paid to the 11 nominated entities.

74    Lehane J held in Roam [1997] FCA 980 at pages 4–6 that the fact that the solicitors’ retainer had ended before their client negotiated the compromise did not break the chain of causation that the solicitors’ work had led, at least in part, to a compromise and thus they were entitled to enforce their equitable right to be paid out of the settlement.

75    In my opinion, Ms Jerome’s opposition to, and QGC’s caution about, TH Lawyers’ claim to the enforcement of the equitable right should be rejected. They cannot seek to approbate the fruits of the creation of the 11 nominated entities and the payment to them of the benefits due now, or once details of the relevant bank accounts are notified, and in the future while reprobating the entitlement of the solicitors, who caused that situation to fructify, to be paid out of those fruits. That argument is contrary to the principle on which a solicitor’s equitable right arises and the compelling inferences on the present facts that, unless Mr Hauff and his firm had pursued this litigation as they did (even with the forensic losses along the way), there would never have been orders of the kind in the 28 May and entity establishment orders: Patience 40 SR (NSW) at 107–108; Roam [1997] FCA 980 at pages 4–6.

76    Accordingly, I am of opinion that each of the 11 nominated entities is liable for its one eleventh share of TH Lawyers’ costs out of the moneys held in Court and any moneys due but unpaid by QGC.

Did TH Lawyers’ retainer comply with the Legal Profession Act?

77    Relevantly, s 308(1)(a) and (b) of the Legal Profession Act provided:

308 Disclosure of costs to clients

(1) A law practice must disclose to a client under this division—

(a) the basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and

(b) the client’s right to—

(i) negotiate a costs agreement with the law practice; and

(ii) receive a bill from the law practice; and

(iii) request an itemised bill after receipt of a lump sum bill; and

(iv) be notified under section 315 of any substantial change to the matters disclosed under this section; and

78    The balance of s 308(1) provided for greater detail of aspects of the proposed retainer. Importantly, s 316(1) excuses a client from liability to pay legal costs where a law practice has not made a disclosure under Div 3 of Pt 3.4 of the Legal Profession Act (which includes s 308) unless those costs had been assessed under that Act.

79    In his affidavit of 10 May 2021, Mr Hauff identified three sources of his firm’s retainer, being:

(1)    a costs disclosure notice under s 308 of the Legal Profession Act and a costs agreement made on 20 March 2017 between TH Lawyers and the persons who instructed the firm to pursue successfully the proceeding that determined that a purported amendment of the ILUA was void: Conlon 359 ALR 540. The persons who were party to that costs agreement included both some signatories comprising members of the native title party and persons proposed to replace then deceased or incapable signatories of the ILUA (whom I found could not replace them in QGC [2020] FCA 1869) (the 2017 retainer documents);

(2)    the decisions on 18 January 2018 and 10 April 2018 of the active members of the native title party with capacity to retain TH Lawyers (the resolutions retainer); and

(3)    the consent and authority documents signed by Mr Bone on 8 June 2018, Ms Booth on 6 June 2018, Ms Colonel on 7 June 2018, Ms Conlon on 13 June 2018 and Ms Johnston on 30 May 2018 that approved both the annexed, but unsigned, costs disclosures under s 308 of the Legal Profession Act and costs agreements (the 2018 consent retainers).

80    Ms Jerome asserted that none of the 2017 retainer documents, the resolutions retainer or the 2018 consent retainers proved that the native title party had retained TH Lawyers so as to support their claim for costs. The 2017 retainer documents related to an attempt by some members of the native title party (namely Ms Alberts, Ms Booth, Ms Conlon and Ms Johnston) to protect the families’ rights under the ILUA .

81    In his reasons of 25 July 2022 for the costs certification, the Registrar did not include any costs incurred under the 2017 retainer documents in the certificate of taxation. The Registrar rejected TH Lawyers’ submission that they were entitled to party/party costs incurred before 18 April 2018. The Registrar found that QGC’s letter of 18 April 2018 was the appropriate time for TH Lawyers’ client to anticipate the bringing of this proceeding. The Registrar, however, accepted that TH Lawyers’ costs for work done from 20 December 2017 were recoverable on a solicitor/client basis, which he included in the certificate.

82    In my opinion, the 2018 consent retainers were sufficient, for the reasons I have given, to retain TH Lawyers to act for the native title party. No party suggested that s 316(1) of the Legal Profession Act had the effect of rendering unenforceable a certificate of taxation issued pursuant to the power of this Court to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) if there had been a failure to make a disclosure under the State law. The certificate of taxation will be enforceable because r 40.32(2) of the Federal Court Rules 2011 gives it the force and effect of an order of the Court whether or not there was any non-compliance by TH Lawyers with the State law in the Legal Profession Act. It is not necessary to decide whether, in all the circumstances, TH Lawyers failed to comply with any provision in the Legal Profession Act in respect of its claim to be paid costs as taxed.

83    Moreover, the 2018 consent retainers were signed by five of the then seven active members of the native title party (Ms Alberts and Ms Jerome did not sign them). The fact that those five persons did not also sign the disclosure and costs agreements that were annexed to those consent and authority documents does not support a conclusion that the signatures on those documents somehow failed to evidence that each signature on those documents approved and consented to the terms of those annexures.

84    I am satisfied by the evidence of each of Ms Alberts, Ms Booth, Ms Conlon and Ms Johnston that she intended to retain TH Lawyers when voting for the resolutions retainer and that she believed that their services had benefitted the families and the native title party. While Ms Alberts did not give evidence about, or sign, the disclosure and costs agreement the subject of the 2018 consent retainers, I am satisfied that, had she seen them, she would have proceeded as she did in affirming TH Lawyers’ engagement.

85    It follows that the resolutions retainer, as well as, but independently of, the 2018 consent retainers, were each sufficient to entitle TH Lawyers to act for the native title party on behalf of the families. The certificate of taxation has quantified the amount which TH Lawyers is entitled to recover on a solicitor/client basis under their equitable right to be paid out of the moneys held in Court.

86    TH Lawyers also relied on evidence from the five members of the native title party and persons in other families than those members to support their contention that all of the families, except the Jerome family, had agreed to pay one eleventh of the total sum before taxation, that TH Lawyers had claimed. Because of the paucity of the evidence (since this issue only arose in submissions after the evidence had been led and it was, at best, peripheral to the main issue), I am not satisfied, and make no findings, as to whether those persons gave a fully informed consent to that course of action. The certificate of taxation was issued after they swore their affidavit evidence so that they were not then aware of their lesser liability to TH Lawyers that the Registrar had certified: cf Maguire v Makaronis (1997) 188 CLR 449 at 466–467 per Brennan CJ, Gaudron, McHugh and Gummow JJ. However, nothing turns on this as I have found that the liability of the native title party and the 11 families for TH Lawyers’ costs is the amount of solicitor/client costs that the Registrar certified. That is because, applying the principles in Patience 40 SR (NSW) 96 and Roam [1997] FCA 980, TH Lawyers’ equitable right to be paid is limited to $299,384.18 as certified.

Conclusion

87    For these reasons, I am of opinion that TH Lawyers are entitled to enforce their equitable right to $299, 384.18 as the taxed solicitor/client costs recoverable on their claim against the moneys held in Court. That sum will rateably reduce the amount that each of the 11 nominated entities will receive from these moneys.

Resolution

88    I propose to make a declaration, after the parties have had the opportunity to consider its form and whether any other orders need be made. In my opinion, subject to any submissions, it would be appropriate to make an order to the following effect:

(1)    it be declared that Trevor Hauff Lawyers has an equitable right to be paid the sum of $299,384.18, being solicitor / client costs as certified in the certificate of taxation issued by the Registrar on 25 July 2022, out of the moneys paid into Court by the applicant before any other payment from those moneys.

Associate:

Dated:    23 December 2022

SCHEDULE OF PARTIES