Federal Court of Australia

Melville on behalf of the Pitta Pitta People v State of Queensland (No 2) [2025] FCA 753

ORDERS

THE COURT ORDERS THAT:

1.    The parties and interveners in this proceeding henceforth be referred to by the names and numbers ascribed to them in the Scheule to these orders.

2.    The interlocutory application filed by Queensland South Native Title Services on 28 March 2025 is dismissed.

3.    Notwithstanding paragraph 2 of these orders, Queensland South Native Title Services be granted an audience for the purposes of assisting the Court with the funding issue referred to at [135] of the reasons published today.

4.    There be a further case management hearing on a date to be fixed, at which time the parties are to address the Court on the course proposed at [132] – [134] of the reasons published today.

5.    Liberty to apply.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    In Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883 this Court made a Determination of native title in relation to land and waters around Boulia in western Queensland. The holders of the native title are described in Schedule 2 of the Determination in a way that references nine apical ancestors. I will refer to the living descendants of those ancestors as the Pitta Pitta people.

2    For the purposes of s 55 and s 56 of the Native Title Act 1993 (Cth) (NT Act), the determined native title is held on trust by the Pitta Pitta Aboriginal Corporation RNTBC ICN 3942, a Registered Native Title Prescribed Body Corporate (Pitta Pitta PBC).

3    Following the Determination, two actions were commenced under s 50(2) and s 61(1) of NT Act, each claiming compensation against the State of Queensland relating to certain compensable acts affecting native title in the relevant area.

4    The Melville Application was commenced in October 2020 by Ms Florence Melville, Ms Jean Jacks, Mr Neville Aplin, Mr Noel Doyle and Ms Carmel Belford (together, the Melville Applicant) (QUD 327 of 2020). The Melville Applicant claims to be authorised to bring that application “on behalf of [the] Pitta Pitta people”.

5    The PBC Application was commenced in 2024 by Pitta Pitta PBC (QUD 60 of 2024). The Pitta Pitta PBC has standing to bring a compensation application under s 61(1) of the NT Act.

6    By a consent order made on 28 May 2024, the Melville Application and the PBC Application were consolidated and continue in this proceeding (Consolidated Proceeding), with the Melville Applicant and Pitta Pitta PBC named as the first and second applicants respectively. The consent orders also provided that for the purpose of the Consolidated Proceeding, the originating application is that application filed by the Melville Applicant. As discussed below, the two applicants remain in dispute about the authorisation of the Melville Applicant to bring the claim, and in connection with the composition of the Board and membership of Pitta Pitta PBC.

7    Notwithstanding those differences, following a court supervised mediation, the Melville Applicant, Pitta Pitta PBC and the State have reached an “in principle agreement” for the settlement of the Consolidated Proceeding by way of the payment of a sum for all compensable acts. I will refer to that as the Compensation Sum notwithstanding that there is at present no agreement that could form the basis of a consent determination providing for its payment. The in principle agreement sets out the steps the parties propose to take with a view to resolving the issues between the State and the applicants by consent under s 87 of the NT Act.

8    A meeting of the Pitta Pitta people has been scheduled to take place on 27 July 2025 at which resolutions may be put concerning the in principle agreement (27 July meeting). The proposed resolutions that may be put to the Pitta Pitta people are the subject of ongoing dispute.

9    The Court has recently become aware of the existence of claims by persons asserting a right to be paid money from the Compensation Sum referable to legal work said to have been done for the Melville Applicant. Two claims are the subject of interlocutory applications filed by non-parties, each asserting the existence of equitable solicitors’ liens against the Compensation Sum. The non-party claimants are:

(1)    ESJ Law Pty Ltd (in liquidation) (ACN 633 179 272); and

(2)    Bennett & Philp Solicitors (a firm).

10    With the consent of the active parties, each of those entities has been granted leave to intervene for the purposes of having their asserted rights considered and (if appropriate) determined and enforced. Consideration of the claims has been deferred until after the 27 July meeting takes place. The evidence filed in support and opposition to those claims has disclosed the existence of at least two funding agreements that may have been entered into by some of the persons who comprise the Melville Applicant. No funder has to date notified the Court of the existence of a claim. It is common ground that claims against a judgment sum comprising the fruits of litigation may be brought within the same proceeding in which the judgment is awarded: Roam Australia Pty Limited v Telstra Corporation Limited trading as Telecom Australia [1997] FCA 980.

11    Queensland South Native Title Services Ltd (QSNTS) is the representative body for a region that includes the land and waters to which the Consolidated Proceeding relates: see NT Act, Pt 11. It seeks leave to intervene in the Consolidated Proceeding under r 9.12 of the Federal Court Rules 2011 (Cth). An earlier application by QSNTS to be joined as a party to the Consolidated Proceeding has been withdrawn.

12    Rule 9.12 provides that a person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including as to costs) as the Court may determine. In deciding whether to grant leave, the Court may have regard to whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding and whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish:  Rules, r 9.12(2). The Court may otherwise have regard to any other matter it considers to be relevant.

13    A grant of leave to intervene may be subject to conditions: Rules, r 1.33. In addition, the Court may specify the form of assistance and the manner of the intervener’s participation, including the matters that may be raised and whether submissions on those matters should be oral, in writing or both.

14    The stated purpose of the proposed intervention by QSNTS is to assist the Court in relation to legal and factual issues that have arisen or that are expected to arise and that may have wider implications for compensation applications under the NT Act more generally. The potential wider implications are said to be relevant to some of the functions and powers conferred on QSNTS under Pt 11 of the NT Act.

15    By its evidence and materials, QSNTS raises a number of factual matters affecting or potentially affecting the proper administration of justice in this case, related to actual or potential claims on the Compensation Sum arising from cost and funding agreements entered into (or purportedly entered into) on behalf of all or some of the Pitta Pitta people.

16    QSNTS accepts that a grant of leave to intervene would not bestow upon it the status of a party for the purposes of s 87 of the NT Act such that it would not be a person who could directly prevent the consolidated compensation application from proceeding to a consent determination by withholding its consent. That acceptance accords with legal principles concerning the status of an intervener more generally: Caason Investments Pty Ltd v International Litigation Partners No 3 Ltd (2018) 265 FCR 487, Allsop, Middleton and Perram JJ (at [53]); Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (2025) 308 FCR 153, Lee, Colvin and Stewart JJ (at [82]), approving Forestry Tasmania v Brown (No 2) (2007) 159 FCR 467, Black CJ.

17    Notwithstanding the important matters raised by QSNTS, I have concluded that it should not be granted leave to intervene. In so concluding I have had regard to the vexed and complex history of the Consolidated Proceeding and the direct and indirect participation of QSNTS in it to date. I consider it appropriate that I explain my decision by first setting out that history in some detail so that the Pitta Pitta people may be apprised of all of the relevant facts and circumstances upon which the outcome is based. The same facts and circumstances might in due course become relevant when considering alternate procedures directed to the final resolution of the Consolidated Proceeding in a way that maintains confidence in the Court’s processes in not only the Pitta Pitta people, but their descendants for generations to come.

Functions of QSNTS

18    In determining the intervention application, I have had regard to the statutory context summarised later in these reasons. At this juncture it is convenient to emphasise those provisions that describe the functions, powers, rights and obligations of QSNTS.

19    QSNTS is funded by the Australian Government under s 203FE of the NT Act to perform all of the functions of a native title representative body for the southern and western Queensland region. Its functions include those described in ss 203BB to 203BJ. They are usually expressed as obligations to do things “as far as … reasonably practicable”, including:

(1)    an obligation to identify persons who may hold native title in the area for which it is the representative body: NT Act, s 203BJ(b);

(2)    an obligation to take such action as the body considers appropriate to promote understanding among Aboriginal and Torres Strait Islanders in that area about matters relevant to the operation of the NT Act: NT Act, s 203BJ(c); and

(3)    an obligation to consult with Aboriginal or Torres Strait Islander communities that might be affected by matters with which it is dealing whenever it considers that to be necessary in the performance of its functions: NT Act, s 203BJ(e).

20    QSNTS has the facilitation and assistance functions referred to in s 203BB. They include the provision of assistance to native title bodies corporate, native title holders and persons who may hold native title, including by representing them or facilitating their representation in a range of proceedings and mediations (including compensation applications of the present kind). Those functions may only be performed in relation to a particular matter if it is requested to do so. QSNTS also has the dispute resolution function described in s 203BF(1) as follows:

Dispute resolution functions

(1)    The dispute resolution functions of a representative body are:

(a)    to assist in promoting agreement between its constituents about:

(i)    the making of native title applications; or

(ii)    the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access conferred under this Act or otherwise or about any other matter relating to native title or the operation of this Act; and

(b)    to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings.

21    As a regional body, QSNTS may fund the legal representation of parties in native title proceedings. In Burarrwanga v Chief Executive Officer of the National Indigenous Australians Agency [2024] FCA 1476, I described the funding regime as it relates to regional bodies and the National Indigenous Australians Agency (NIAA).

22    Section 84 of the NT Act identifies which persons are a party to applications to which s 61 applies. Section 84(2) provides that an applicant is party to the proceeding. Section 84(3) has the subheading “Affected persons”. It provides that “Another person is a party to the proceedings if” (relevantly) the person is covered by s 66(3)(a)(i) to (vi) and the person notifies this Court in writing that it wants to be a party within a prescribed period. QSNTS is covered by s 66(3)(a)(iii) and so would have been joined as a respondent in its own name and right had it informed the Court that it wanted that status within the prescribed period. However, it did not do so.

23    The effect of those provisions is that QSNTS is nonetheless a body that could obtain the status of a party without needing to establish any right or interest in the subject matter of the proceeding and without needing to establish that (for example) its contribution to the proceeding would be useful or different. Parliament has evinced an intention that regional bodies should be permitted to participate in a proceeding (and have the status of a party) given the nature of their functions, subject only to the willingness of the body to participate and its notification of that willingness within the prescribed time. I have afforded that context considerable weight, notwithstanding that on the present application QSNTS no longer seeks to be joined as a party. In asking whether it should be permitted to intervene, I am proceeding on the basis that it is not to be regarded as a busybody having a mere intellectual interest in the outcome. As described below, I am satisfied that its desire to intervene is genuinely associated with the performance of its functions, correctly understood.

Evidence

24    The Court has read:

(1)    three affidavits of Mr Timothy Wishart affirmed on 28 March 2025, 12 May 2025 and 26 June 2025 (read by QSNTS);

(2)    an affidavit of Mr Peter Matus of the firm APIX Law Group Pty Ltd (solicitor for the Melville Applicant) affirmed on 26 May 2025 (read by the Melville Applicant);

(3)    an affidavit of Ms Kristy Elizabeth Snape sworn on 25 June 2025 (read by the State); and

(4)    an affidavit of Mr Andrew Lambros sworn on 26 June 2025 (read by Bennett & Philp).

25    The Court has read material contained in other affidavits to the extent that they are cross-referenced by the above deponents or submissions.

26    In addition, the Court has been referred to documents on the Court record evidencing the capacities in which QSNTS has participated in the proceeding thus far. Other matters by way of background are discernible from the judgments and orders of the Court and are well known to the parties.

27    Following the hearing, the Court sought clarification from the parties about the extent to which it should have regard to the in principle agreement and I proceed in accordance with the parties’ responses to that correspondence.

28    The following facts and circumstances are drawn from all of that material.

Facts

History of the litigation

29    The Melville Applicant was represented by ESJ Law at the time that the Melville Application was commenced. At that time, the file principal was named as Mr Peter Matus. The director of ESJ Law at that time was Mr David Stevenson. Mr Stevenson replaced Mr Matus as file principal in February 2021.

30    The originating application states that the Melville Applicant:

… is entitled to make this application for compensation (Application) as a person authorised by the compensation claim group to make the application as is so authorised as per section 251B(a) of the Act.

31    The respondents to the Melville Application included the State and Pitta Pitta PBC.

32    The statutory context is that a compensation application can only be brought by the persons described in a table contained in s 61(1) of the NT Act, relevantly including:

A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group.

33    For present purposes the “compensation claim group” that must authorise an applicant is the Pitta Pitta people.

34    Section 251B of the NT Act defines what it means for a person to be authorised by all the persons in the compensation claim group. It provides:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process–the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision‑making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

35    It may be observed that the authorisation there referred to extends to authorisation to deal with matters arising in relation to the application.

36    Section 61(2) of the NT Act provides that in the case of a compensation application made by persons authorised to make the application by a compensation claim group, those persons are jointly “the applicant” and none of the other members of the compensation claim group are the applicant.

37    In April 2022, Mortimer J (as her Honour then was) dismissed interlocutory applications by the State and Pitta Pitta PBC seeking orders that the Melville Application be summarily dismissed (or alternatively struck out) on the basis that it had not been authorised in accordance with the requirements of the NT Act:  Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387.

38    In Melville her Honour concluded that the question of whether the Melville Applicant was authorised to bring the Melville Application on behalf of the Pitta Pitta people was a question that should proceed to trial. Her Honour had regard to the circumstance that those who comprised the Melville Applicant were Pitta Pitta elders and said that it was not possible for the Court at a summary stage to choose between the competing accounts and positions asserted in the evidence.

39    Justice Mortimer went on to refer to discretionary considerations, including that it was appropriate for the application to continue expeditiously, adding that if the State and Pitta Pitta PBC wished to press the matters they had raised at an interlocutory level, they may do so at trial (at [118]). Her Honour’s reasons conclude with the following observation (at [120]):

Although this was not a matter canvassed by the parties, it seems agreed that a compensation claim is capable of being made on behalf of the Pitta Pitta common law holders. This current application is all about who should bring it. In a sense, it is a lawyer’s argument. It has already occupied and consumed considerable public funds and resources, without any benefit to the Pitta Pita common law holders. Moving forward, it might be sensible for the compensation applicant and the Pitta Pitta RNTBC to put their differences to the background, and to consider whether they might pursue a compensation application in a more collaborative way. One option might be an amendment to the composition of the compensation applicant so that some individuals from the Pitta Pitta RNTBC are represented in it. There may be other options. This is not a circumstance where there is any doubt about the underlying merit – at a general level rather than at the level of specific compensable acts – of a compensation application on behalf of the Pitta Pitta People. The Court encourages all the parties to move towards resolution of the real issues in this proceeding, which revolve around the payment of compensation for acts affecting native title, and towards the pursuance of the objectives of the NTA, especially as set out in the Preamble.

40    Pitta Pitta PBC’s appeal from her Honour’s judgment was dismissed on 9 August 2022: Pitta Pitta Aboriginal Corporation RNTBC v Melville on behalf of the Pitta Pitta People [2022] FCAFC 154, Jagot, Rangiah and Charlesworth JJ.

41    Following the appeal, the Melville Application was scheduled to a trial proceeding with two tranches of evidence commencing on 10 July 2023 and 4 December 2023. Those trial dates were vacated for reasons relating to the legal representation of the Melville Applicant. Politely described, the suspension of the practising certificate of Mr Stevenson and the appointment of administrators to ESJ Law caused immense disruption to the progress of the proceeding. That disruption was ongoing when the matter first came into my docket in May 2023.

42    At a case management hearing on 9 June 2023, the persons comprising the Melville Applicant each appeared as self represented litigants and a dispute had arisen among them as to whether one of them should be removed. At that time, the Court’s focus was on retrieving any work product (in the nature of witness statements, affidavits or recordings) so that the matter could be promptly re-listed for trial with the benefit of that material, having regard to any lien against documents that at that time appeared to be asserted, rightly or wrongly, by ESJ Law through Mr Stevenson.

43    The Court issued a certificate for pro bono representation for the limited purpose of assisting the Melville Applicant to obtain work product from ESJ Law (specifically any evidence that may have been prepared for the purpose of progressing the matter to trial and mediation) and further assistance to obtain funding for alternate legal representation. The certificate was helpfully accepted by MPS Law and Ms Ann Sibree of Counsel and an affidavit was later filed on behalf of the Melville Applicant deposing to their progress in dealing with Mr Stevenson and the Queensland Law Society. The Melville Applicant later secured alternative legal representation in circumstances that are not known to the Court and the pro bono solicitor and Counsel ceased their work under the referral certificate. In all of the circumstances referred to in these reasons it is reasonable to infer that the Melville Applicant did not apply to QSNTS or NIAA for public funding for the continued prosecution of the Melville Application.

44    By orders made on 16 November 2023, the matter was again set down for trial with tranches of evidence commencing on 21 October 2024 and 2 December 2024.

45    The PBC Application was filed on 8 February 2024. That occurred following remarks I made at a case management hearing to the effect that the Court may disapprove of Pitta Pitta PBC maintaining a position on the Melville Application that it was the only appropriate applicant, whilst at the same time making no application of its own. The consequence of its delay would have been that if the Melville Application was determined at trial to lack authorisation, the final resolution of the substantive rights of the Pitta Pitta people to receive compensation might be yet further delayed. The eleventh hour filing of an application by a body corporate might also have put in jeopardy the new trial dates.

46    As will be seen, the persons comprising the Melville Applicant do not recognise the legitimacy of the PBC Application. They contend that the Board of Pitta Pitta PBC (and hence those having conduct of the proceeding) are not Pitta Pitta people and that the membership of Pitta Pitta PBC has been overrun by people who are not Pitta Pitta people (see below).

47    The fact that there now exists an in principle agreement between the two compensation applicants on the one hand and the State on the other is commendable. It shows that the parties have, to an extent, focussed on the substantive issue in dispute on the single originating application on which the Melville Applicant and Pitta Pitta PBC are now each named as applicants.

48    The in principle agreement is said to be subject to authorisation by the Pitta Pitta people. A purpose of the 27 July meeting is for that authorisation to either be given or withheld. Regrettably, neither of the compensation applicants have been able to resolve the disputes between them concerning the authorisation of the Melville Applicant and the Pitta Pitta PBC membership and Board. Actual and anticipated claims on any compensation fund by solicitors and litigation funders have only served to exacerbate those disputes.

Legal representation of the Melville Applicant

49    Before the Court is evidence of a cost agreement apparently executed in March 2020 by some (but not all) of the persons comprising the Melville Applicant. It is referred to in an affidavit of Ms Geetaanjli Sidhu affirmed on 4 August 2023 and in correspondence prepared by QSNTS. Ms Sidhu was a solicitor employed by MPS Law, acting on the pro bono referral mentioned above.

50    In a public examination conducted in 2023, Mr Stevenson said that from 1 July 2022 he was working for Bennett & Philp. Between 22 August 2022 and 7 October 2022, the Melville Applicant was represented on the Melville Application by Mr Stevenson and Mr Lachlan Thorburn of Bennett & Philp. Mr Stevenson’s relationship with Bennett & Philp is unclear. Bennett & Philp was the solicitor on the record for the Melville Applicant for the purposes of the Full Court appeal proceeding culminating in the judgment in Pitta Pitta. The appeal was heard on 9 August 2022 and orders dismissing the appeal were made on the same day.

51    Upon the suspension of Mr Stevenson’s practising certificate, a different solicitor indicated that she had instructions to act and a date was set by which a notice of address for service should be filed. For reasons that have not been drawn to my attention, no notice of address for service was filed by the new solicitor.

52    On 19 September 2023 (whilst the pro bono certificate remained in force), a notice of address for service for the Melville Applicant was filed by APIX. The file principal is Mr Matus, the same solicitor who was file principal when the Melville Applicant was represented by ESJ Law from the commencement of the proceeding. It is unclear how APIX came to act for the Melville Applicant at a time when the pro bono referral certificate continued to operate. Neither the Melville Applicant nor APIX have disclosed any costs or funding agreements defining their relationship.

53    ESJ Law went into liquidation on 16 November 2023.

54    Mr Stevenson passed away in June 2024.

Legal representation of Pitta Pitta RNTBC

55    Pitta Pitta PBC filed a notice of intention to become a party to the Melville Application on 21 January 2021 and so became a respondent by the operation of ss 66(3)(a)(ii), 84(3)(a)(i) and 84(3)(b) of the NT Act.

56    At the time of its joinder Pitta Pitta PBC was represented by QSNTS. Pitta Pitta PBC’s notice of intention to become a party was signed by Mr Wishart (the Chief Executive Officer of QSNTS) who then acted in his capacity as a legal practitioner and file principal assuming personal responsibility for the conduct of Pitta Pitta PBC’s case. As has been mentioned, that case includes a contention that the Melville Application was liable to be summarily dismissed and a maintained contention that it is not authorised. Mr Wishart’s role as solicitor for Pitta Pitta PBC persisted to 3 April 2023 (after judgment of the Full Court in Pitta Pitta), after which Mr Michael Owens of “Michael Owens Lawyer and Consultant” became the solicitor on the record for Pitta Pitta PBC.

57    Mr Owens’ representation persisted until 16 September 2024 when Pitta Pitta PBC’s solicitor on the record changed to Ms Sheree Sharma of QSNTS.

Claims asserted against the proposed Compensation Sum

58    On 17 March 2025, an interlocutory application was filed by ESJ Law (by that time in liquidation) as an interested non-party. Among other things, ESJ Law seeks a declaration that it has “a fruits of litigation or solicitor’s particular lien as against any settlement proceeds or settlement fund arising out of or related to these proceedings”.

59    At an interlocutory hearing conduced on 5 June 2025, the Court identified factual and legal questions that appeared to the Court to arise on the ESJ Law application, so as to alert the parties to those issues and enable them to prepare their materials bearing them in mind. Among other things, the Court indicated that it did not wish to have disruptive issues relating to any potential lawyer’s conflict of interest arising at short notice.

60    The Court has determined that resolution of ESJ Law’s application should be deferred pending the outcome of any meeting of native title holders because until such time as a meeting is held it cannot be said that a compensation sum is likely to be paid so as to bring into existence a fund against which any equitable lien may be asserted. In deferring the hearing of that application I have not drawn any conclusion that the Court lacks power at this time to make declarations about the legal relationships asserted on ESJ Law’s claim. Rather, the Court is minded to ensure that the parties’ focus and resources remain on the upcoming 27 July meeting.

61    Bennett & Philp’s application was filed on 9 June 2025. It seeks the payment of fees related to the Melville Applicant’s representation in successfully defending Pitta Pitta PBC’s appeal to the Full Court culminating in Pitta Pitta. Bennett & Philp was granted a limited audience on the present application because the issues that QSNTS said would justify its intervention are issues that may relate to its claim, and because QSNTS has communicated with the Pitta Pitta people concerning the merits of Bennett & Philp’s claim, in the circumstances described below. ESJ Law did not seek an audience.

Funding and cost agreements relating to the Melville Application

62    There is evidence before me of the existence of two litigation funding agreements. I will refer to them as agreements without indicating any finding as to whether they are legally binding on any person.

63    The first agreement appears within exhibit KLC-1 to the affidavit of Ms Kaily Chua affirmed on 12 March 2025 (as cross-referenced by Mr Wishart).

64    The front page has the title “Litigation Funding Agreement” and the names “Peak Litigation Funding Pty Limited ACN 636378973” (Peak) and “Pitta Pitta Traditional Owners Group”. I will refer to it as the Peak Funding Agreement.

65    The second page identifies the agreement as being between Peak as “Litigation Lender” on the one hand and “THE CLAIMANT referred to in this agreement” on the other. The word “claimant” is defined to mean “the Elders of the Pitta Pitta Traditional Owners Group”.

66    Clause 18 states that a legally binding contract in terms of the agreement shall be formed between the parties to it upon:

the Claimant providing an executed copy of this agreement to the Litigation Lender or to the Solicitors, if the Claimant signs a paper copy of this agreement; or otherwise

67    The sentence ends there.

68    The word “Solicitors” is defined to mean ESJ Law.

69    Apparent signatories to the Peak Funding Agreement include three of the persons who constitute the Melville Applicant, namely Noel Doyle, Florence Melville and Jean Jacks. There are no signatures of the other two persons who comprise the Melville Applicant (Carmel Belford and Neville Aplin). The signature page is dated 13 March 2020.

70    The transcript of Mr Stevenson’s public examination is concerning in a number of respects relating to this proceeding. It contains information to the effect that ESJ Law and Peak may be related entities and about legal proceedings between ESJ Law and Peak culminating in a settlement agreement that appears to provide for a restructure of Peak. When considered in the context of other information on the Court record it also raises questions about whether Mr Stevenson had in fact performed work he had previously told this Court he had performed.

71    The examination transcript references a further funding agreement purportedly entered into between the Melville Applicant and Mr Stevenson personally, or at least an entity representing his personal interests.

72    During the course of the examination, Mr Stevenson spoke of obtaining money from another client (described as an “investor”) which he represented would be repaid from the commission he would receive under the second funding agreement when the Pitta Pitta people received compensation. He asserted that he believed the claim of the Pitta Pitta people to be worth $250 million and described risks attending the claim in terms suggesting they were nil or negligible.

73    My observations about the content of the examination transcript should not be taken as findings of the truth of any matters stated in it or any substantive finding of wrongdoing. It is not necessary to make any such findings for present purposes. My intention is to identify some of the issues that appear to arise from it so that the concerns of Mr Wishart (discussed below) and the outcome of the present application can be considered in their proper context.

74    In his affidavit dated 28 March 2025, Mr Wishart states that it is unclear whether Peak have paid the Melville Applicant’s costs while represented by APIX and its file principal Mr Matus.

75    Mr Wishart states that he has been informed by a paralegal employed by QSNTS that she had seen various documents relating to work done (or claimed to have been done) by third parties in relation to the matter and had calculated the possible claims as totalling $5 million. The breakdown of those anticipated claims is not known to the Court.

76    Mr Wishart deposes that Mr Stevenson made an application to QSNTS for funding in late 2022. Mr Wishart was not involved in that application as he was then the solicitor on the record for Pitta Pitta PBC, but it is his understanding that a basis for funding could not be agreed. The reasons for that are mentioned in correspondence summarised below. He is not aware of Mr Stevenson making any application for funding to the NIAA on behalf of the Melville Applicant.

Composition of Pitta Pitta PBC membership and Board

77    In his affidavit, Mr Matus has drawn the Court’s attention to matters alleged to affect Pitta Pitta PBC’s role in the proceeding as a compensation applicant. He deposes that of the 562 persons appearing on a register of members of Pitta Pitta PBC, 319 are not Pitta Pitta people. Mr Matus further alleges that of the 11 members of the Pitta Pitta PBC Board of Directors, eight are not Pitta Pitta people as defined in the Corporation’s Rules. On behalf of the Melville Applicant, Mr Matus wrote to the Office of the Registrar of Indigenous Corporations (ORIC) requesting that it exercise its investigatory powers to inquire into a certification process by which Pitta Pitta PBC obtained the consent of persons to commence the PBC Application, purportedly in accordance with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). By letter dated 21 February 2025, ORIC determined that the certificate was non-compliant. I will return to this topic in the pages to follow.

Letter from QSNTS to the Pitta Pitta people

78    On 16 April 2025 Mr Wishart sent a seven page letter to all Pitta Pita people for whom QSNTS had an email or mail address. The letter was sent in his capacity as the Chief Executive Officer and written on a QSNTS letterhead. The whole of the letter forms the basis for the objections of (at least) the Melville Applicant to the intervention of QSNTS. It is therefore appropriate to describe it in full (other than to disclose the Compensation Sum contained within it).

79    Mr Wishart first summarised the functions of QSNTS and said that he was writing the letter in the performance of functions conferred under s 203BJ of the NT Act. He referred to the 27 July meeting and the need to consider whether to authorise the in principle agreement as the basis of a consent determination as well as the need to consider how the money was to be managed and what it was to be used for. He then referred to a need to consider “whether the [Melville] Applicant should be able to use the compensation money to pay lawyers, funders and others who have assisted them in the matter or been associated with it”. He referred to the proposed Compensation Sum (disclosing the amount) and the assertion of claims by lawyers and a “litigation lender”. He stated that “There is a question about whether the [Melville] Applicant had authority from the Pitta Pitta People to make commitments and agreements that would allow their lawyers and funders to be paid out of the compensation money”.

80    Mr Wishart referred to the ways in which native title proceedings could be funded and described the business of litigation lenders as in the nature of loan providers, and the practice of the lender receiving “a percentage of the proceeds of the court case which is on top of the loan repayment”. He disclosed that the Melville Applicant had used the services of ESJ Law, a firm owned and operated by Mr Stevenson and that Mr Matus had worked for Mr Stevenson. He added that the Melville Applicant “chose” not to ask QSNTS for assistance to run the claim.

81    Mr Wishart disclosed that the Melville Applicant had signed an agreement with ESJ Law as well as an agreement with Peak and summarised the hearings and outcomes before Mortimer J and the Full Court.

82    Mr Wishart said that QSNTS was the lawyer representing Pitta Pitta PBC and said that “Because the PBC asked QSNTS to assist it in the matter, there has been no cost to the PBC or the Pitta Pitta People it represents in relation to its involvement in the compensation claim”.

83    Under the heading of “Potential claims on the Compensation Money”, Mr Wishart:

(1)    referred to an affidavit filed by Mr Stevenson on 13 September 2022 in which he had asserted that ESJ Law was owed approximately $920,000.00 by the Melville Applicant;

(2)    referred to a letter Mr Stevenson had written in December 2022 to the then QSNTS Chief Execitive Officer seeking funding for “Stage 1” of the Melville Application and in which Mr Stevenson had stated that he would not provide his invoices to QSNTS for approval on a piecemeal basis “given QSNTS is representing and clearly been given approved funding to the Pitta Pitta Aboriginal Corporation”;

(3)    stated that QSNTS had not been able to reach agreement with Mr Stevenson about funding for the Melville Applicant;

(4)    asserted that in late 2022 or early 2023 Mr Stevenson had joined Bennett & Philp and that for a short time Bennett & Philp had represented the Melville Applicant before Mr Stevenson “resumed business under the ESJ Law banner”, and went on to say “Despite that, Bennett & Philp claim they are owed money by the [Melville] Applicant or the Pitta Pitta people”;

(5)    advised that Mr Stevenson had lost his right to practice on 6 April 2023 when the Queensland Law Society suspended his practising certificate, and that it had later transpired that Mr Stevenson had improperly taken $728,432.98 from his firm’s trust account;

(6)    referred to the evidence Mr Stevenson had given in his public examination to the effect that he considered the compensation claim made in the Melville Application would settle for a minimum of $250 million and that he considered he was personally entitled to 9% of the compensation money;

(7)    referred to the application filed by ESJ Law in this proceeding and the Melville Applicant’s agreement that ESJ Law should be made a party;

(8)    stated that QSNTS opposed the joinder of ESJ Law;

(9)    referred to Mr Matus and APIX assisting the Melville Applicant since September 2023; and

(10)    listed the entities that might possibly “ask the Court for payments from the compensation money”, namely APIX, Peak, ESJ Law, the estate of Mr Stevenson and Bennett & Philp.

84    Mr Wishart went on to say that by becoming a party to the Consolidated Proceeding QSNTS “will be asking the court to consider whether any of those parties can claim against and be paid from the compensation money”.

85    Earlier in the letter, Mr Wishart adverted to another issue that was said to be “unrelated to finalising the compensation claim”. That issue is addressed in the letter under the heading “Additional Old People for the Pitta Pitta Determination?”. He said that issue was not part of what QSNTS was asking the Court to consider.

86    Mr Wishart said that he was aware that there was a great deal of controversy among Pitta Pitta native title holders about the composition of the Board of Pitta Pitta PBC. He referred to non-native title holders forming a majority of the Board. He said that there was a controversy about the descendants of Alice Wykeri being admitted to the membership of the Pitta Pitta PBC. The letter continues as follows:

Before I go any further I need to confirm that, going back years I have said publicly that I consider that there is evidence that puts country that Alice likely occupied at the time of effective sovereignty within the Pitta Pitta Determination Area and on that basis she could be included as a descriptor of the Pitta Pitta native title holders and that could be achieved by an application to the Federal Court to revise the Determination.

It is not relevant to this question that Alice was included as an Apical Ancestor on the Wangkamahdla native title Determination. The Wangkamahdla claim group was described by Old People who had varied cultural identities.

As a proposition of law, it is possible for an Apical Ancestor to be listed on two claims or Determinations.

It is the case that research that suggested Alice be included as an apical ancestor while the Pitta Pitta native title determination application was before the court (before the Determination in 2012) and that was rejected by the native title claim group at authorisation meetings.

(original emphasis)

87    After setting out the description of the native title holders as it appears in the Determination, Mr Wishart expressed a view that it was open to the descendants of Alice to ask a court to declare that the Board of Pitta Pitta PBC had accepted that she was a Pitta Pitta descendant and that her descendants were eligible to be admitted as members. Reference was made to other research being done, which suggested that an additional apical ancestor could also be included and that there was a question about the inclusion of yet another.

88    The letter stated that decisions around “the cultural identity of Old People” should be made based on objective evidence and in accordance with traditional laws and customs and not based on opinions about people or personal likes or dislikes. Mr Wishart then listed the people who could apply to the Court for a revised determination, which included Pitta Pitta PBC. He said that Pitta Pitta PBC must consult and have the consent of the determined native title holders before making such an application.

89    Mr Wishart closed the letter with a statement that it was important that the people who may be affected by the issues were aware of the relevant background.

QSNTS correspondence to ESJ Law and Bennett & Philp

90    By letter dated 29 April 2025, QSNTS wrote to the solicitor for ESJ Law setting out concerns it had with the lien it had asserted. They included concerns about the authority of the Melville Applicant to commence a compensation application and related concerns about the authority of the Melville Applicant to enter into a cost agreement. He pointed out that only three of the five persons constituting the Melville Applicant had signed a cost agreement in any event and asserted that the counter party to the agreement was not an entity capable of entering into a contract. He also took issue with some of the charges claimed by ESJ Law (including items apparently outside of the scope of the retainer) and identified matters in respect of which he considered ESJ Law bore the onus of proof.

91    By letter dated 12 June 2025 addressed to Bennett & Philp, Mr Wishart (again in his capacity as Chief Executive Officer of QSNTS) said that he did not accept the existence of a lien in favour of ESJ Law and that it questioned the existence of the lien claimed by Bennett & Philp. In a later email to Bennett & Philp, QSNTS said that its newly proposed role as intervener would be limited to matters of more general application and that it did not anticipate making any submissions relating to the specific lien claimed by Bennett & Philp. It said that its objective was to advance arguments about:

… important points of principle that would prevent significant proportions of native title compensation funds being disseminated to private law firms, rather than common law holders, in circumstances where public funding was available to prosecute the required compensation applications (and where the common law holders as a whole may not have given their informed consent to any decision to eschew such public funding).

The concerns of Mr Wishart

92    I here set out the concerns expressed by Mr Wishart in the body of his affidavits, which reflect and repeat some of the concerns raised in his letter to the Pitta Pitta people.

93    Mr Wishart deposed to having “concerns as to whether it was generally known by the Pitta Pitta native title holders that arrangements had been made, apparently on their behalf, that exposed the fund in that way and, that if it was known that arrangements made with third parties could significantly diminish the compensation fund, whether they would have agreed to those arrangements being made”. He said that he has long held concerns about the involvement of “litigation lenders and others seeking to profit” from native title proceedings in a context where public funding is generally available to bona fide claim groups and where costs are not awarded in proceedings under the NT Act other than in exceptional circumstances: NT Act, s 85A. He deposed that the decision to bring the present application was made after he became aware of the lien asserted by ESJ Law which “crystallised” his thinking around “profit motivated entities in native title proceedings”.

94    Mr Wishart states that if QSNTS is joined as a respondent or is given leave to intervene, it would not involve itself in the detail of any ongoing dispute between the parties and has no view about the adequacy of the Compensation Sum proposed to be paid by the State. He states that QSNTS hopes to assist the Court by filing evidence where appropriate and making submission on issues arising in this proceeding that may impact on future native title compensation applications within the region of its responsibility and more generally. He articulated issues that may arise as follows:

(a)    the requirements and processes required to authorise an applicant for the purposes of s.61 NTA to bring a native title compensation application after a determination of native title has been made by the Court and the scope of that authority;

(b)    the effect of a costs agreement made between some, but not all, members of a native title compensation applicant and a law firm, including in circumstances where that applicant may not have been authorised by the compensation claim group in the way prescribed by NTA s.2518;

(c)    the responsibilities of:

i.     a law firm / legal practitioner seeking to engage with, and in representing, a native title compensation claim group, and ii. a commercial litigation funder seeking to fund, and when funding, a native title compensation claim group;

(d)    the role of the Court in the oversight of law firms and commercial litigation funders when engaged in native title compensation proceedings; and

(e)    the circumstances in which there may be a basis to enliven the Court's discretion to apply NTA s.84D(4).

95    A significant portion of Mr Wishart’s affidavits are expressed in terms of concerns that he holds based on the information known to him. It was not suggested that those concerns are not genuinely held and for the purposes of this application I am satisfied that they are.

96    Mr Wishart deposed that some of the native title holders have requested that QSNTS take steps to protect the Compensation Sum from claims made by third parties so as to “protect” the quantum of the fund. He believes that possible claims on the Compensation Sum are a potentially significant impost. He repeated some of the matters set out in his correspondence, including his concerns about persons seeking to profit from native title proceedings in circumstances where public funding is generally available. He said that he wanted QSNTS to join as a party in the proceeding so that issues relating to persons and entities seeking to profit from native title proceedings (and specifically compensation proceedings) could be brought to the Court’s attention.

97    Mr Wishart asserted that QSNTS more generally has “an interest in the application of litigation funding” in a context where native title holders are akin to group members in class actions but do not have the same protections as those provided under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). He asserts that there is a significant public interest in the topic of legal funding challenges in the context of class actions that is all the more pronounced in the native title context and seeks to make submissions for the protection of native title holders that to date have not been made by other parties.

Proposed scope of intervention

98    I consider there to be some lack of clarity about the role QSNTS proposes to play in this proceeding. That is in part a consequence of QSNTS withdrawing its application to be joined as a party and instead seeking to be given the status of an intervener with a more limited role. Its primary written submissions and affidavits focus on the question of joinder and propose a role in the proceeding that differs from that ultimately put in oral submissions and in written submissions in reply. The reply submissions cast the proposed involvement in narrow terms, as follows:

… if permitted, QSNTS would seek to play a limited role and would involve itself only in those matters of more general application and not in the matters for specific resolution in the Consolidated Proceeding, and would seek to assist the Court by making submissions on issues relating to these proceedings that may impact on future native title compensation applications, both within the Southern and Western Queensland region and generally, but only on such limited issues and in a constructive way designed to serve the public interest. That is, QSNTS does not intend to make specific submissions relating to the merits of factual matters alleged in the Consolidated Proceeding, but rather, would make submissions relating to what it submits is the applicable law in the context of which such facts should be considered.

(footnotes omitted)

99    The submissions go on to confirm that QSNTS was “seeking to ensure that provisions of the [NT Act] have been followed in relation to the authorisation of those bringing the claims and the bases upon which any defects in the authorisation may be cured”. It was submitted that there was a paucity of jurisprudence relating to third party interaction in the practice of native title, and it was important that the Court have the benefit of diverse submissions relating to the matters that had been raised by Mr Wishart. QSNTS submits that the proceeding involves some novel issues, including because it is the first native title compensation application to be determined where there are two applicants, one of which is privately funded (involving a litigation funder) in the context of the availability of public funding to prosecute such claims. QSNTS said that the Court had the opportunity to establish a framework for the resolution of the issues that arise, giving the example of best practice principles discussed by Mortimer CJ in a different context in McDonald v Commonwealth of Australia [2025] FCA 380 (at [571] – [572]).

100    In oral submissions, the proposed role appeared to the Court to be narrowed even further. Counsel for QSNTS at times eschewed any partisan role in the proceeding, whether in relation to the parties or in respect of the lawyers’ existing claims or other like claims that may yet be made. The scope of intervention was limited to QSNTS assisting the Court to apply the law to the facts as found, without submissions as to what the facts should be. The timing of that assistance was not specified, and there was no particular proposal to assist the Court in relation to any step that should be taken before the 27 July meeting.

Opposition to the application

101    The State submitted that any intervention by QSNTS should be on limited grounds given Mr Wishart’s personal role as solicitor for Pitta Pitta PBC and the circumstance that QSNTS remains the solicitor on the record for it (albeit through a different practitioner as file principal). The State raised issues concerning the risk that confidential information (such as the in principle agreement and matters subject to settlement privilege) would be divulged internally with QSNTS. It submitted that Mr Wishart should not have involvement in the intervention role at all given the prior capacity in which he had acted. It otherwise expressed concern about the appearance of a lack of independence on the part of QSNTS.

102    The State expressed concern about the circumstances in which the Compensation Sum and the in principle agreement had been disclosed to Mr Wishart given that the document was subject to settlement privilege. That disclosure has recently been explained by QSNTS and I make no finding of fact in respect of it.

103    The Melville Applicant and Bennett & Philp each submitted that QSNTS had direct conflicts of interest and that it otherwise lacked objectivity and independence in relation to the factual and legal issues that may arise for determination by the Court. The lack of independence was said to arise by reason of QSNTS’s role as the solicitor for Pitta Pitta PBC, the content of its letter of 16 April 2025 to the Pitta Pitta people and the expression of views about the merits of the solicitors’ liens in its other correspondence. The Melville Applicant placed particular emphasis on QSNTS apparently expressing views about the inclusion of the descendants of Alice in the membership of Pitta Pitta PBC, submitting that it had taken a partisan approach in a matter that was highly contentious and that related to the composition of the Board.

104    It was also submitted that QSNTS could not make any additional or useful submission over and above those that may be made by Pitta Pitta PBC, the State or the Melville Applicant.

105    Pitta Pitta PBC supported the application for reasons that largely reflected those put forward by Mr Wishart in his affidavits, including the lack of protection for compensation claim group members of the kind to be found in representative proceedings governed by Pt IVA of the FCA Act.

CONSIDERATION

106    The compensation sought in the Consolidated Proceeding is for acts affecting native title of the Pitta Pitta people. The loss occasioned by the compensable acts is a loss suffered not only by the living Pitta Pitta people, but also their ancestors and their descendants to come. It is of utmost importance that if there is to be a settlement of the compensation claim and a determination made by consent (or an award of compensation following a contested trial), the living Pitta Pitta people and their descendants have confidence in the legal processes culminating in it. That includes processes relating to costs that may impact upon any Compensation Sum and that properly arise for resolution in the proceeding. Authorisation of an agreement for the settlement of the Consolidated Proceeding under s 87 of the NT Act is a serious matter involving the discharge of duties and responsibilities existing on a number of levels.

107    The 27 July meeting is not an event that has been required by the Court. Rather, it is a process chosen by the parties as an aspect of their attempts to resolve the issues arising on the originating application without the need for a contested trial. It is not the Court’s role to mandate what should or should not occur at such a meeting.

108    However, in the context of an application for a determination of native title under s 87 of the NT Act, it is well established that the Court may consider whether the agreement before it has been entered into freely and on an informed basis: K.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4) [2017] FCA 1225, Robertson J (at [43]), citing Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109, Emmett J (at [30]); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588, French J (at [3]) and Brown v Northern Territory of Australia [2015] FCA 1268, Mansfield J (at [23]). As North J explained in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (at [37]):

In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848.  …

109    Among other things, the Court may have regard to the circumstance that parties have independent and competent representation: Munn (at [29]). The matters relevant to the exercise of the discretion have not otherwise been exhaustively defined.

110    QSNTS has expressed a concern that the Pitta Pitta people are vulnerable in their dealings with those foreshadowing claims against any award of compensation, and perhaps in their dealings with those who comprise the Melville Applicant. In some respects its submissions proceeded from an assumption that in the context of a compensation application, the compensation claim group members are in an analogous position to group members in a class action governed by Pt IVA of the FCA Act.

111    QSNTS is correct to describe native title proceedings as representative proceedings. Statements to that effect have repeatedly been made by this Court: see, for example, Gomeroi People v Attorney-General (NSW) (2016) 241 FCR 301, Reeves, Barker and Bromberg JJ (at [154]) and the cases cited therein.

112    However, it is not to be assumed that members of the compensation claim group on behalf of whom an application is brought are in an equivalent position to group members in a representative proceeding of the kind governed by Pt IVA of the FCA Act, nor is it to be assumed that equivalent forms of protection can or should be afforded by the Court.

113    To label a proceeding as a “representative proceeding” means little more than that it is commenced and continued by an applicant on behalf of other persons who do not have the status of parties. The relationships established by Pt IVA of the FCA Act and the NT Act are to be discerned by a process of statutory construction.

114    Without having the benefit of submissions on the topic, it seems to me that there is a potentially critical difference between a representative proceeding governed by Pt IVA of the FCA Act and representative proceedings commenced under s 61 of the NT Act.

115    In a proceeding under Pt IVA of the FCA Act, a lead applicant is self appointed to start a proceeding on behalf of group members who need not consent to the action being commenced and indeed need not even be aware of it to be bound by the outcome: BMW Australia Limited v Brewster (2019) 269 CLR 574 (at [73]). Part IVA contains provisions directed to the protection of those persons given the possible extinguishment of choses of action they may otherwise possess as individuals against the respondent party. Under that regime, it is well established that the Court has the power to make a “funding equalisation order” (also referred to as an “expense sharing order”) in the context of approving a settlement in the exercise of the power conferred under s 33V of the FCA Act: Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70, Beech J (at [49]). The making of such an order creates a relationship between each of the group members and the lead applicant that would not otherwise exist at general law. In the absence of such an order a group member may have no obligation to contribute to the cost liabilities of the lead applicant. And, absent a funding equalisation order, a litigation funder could have no recourse to any damages awarded upon judgment or settlement in respect of group members with whom they have no contractual relationship.

116    In contrast, putting aside applications brought by a prescribed body corporate, no person can self appoint themselves as an applicant on a compensation application of a kind mentioned in s 61 of the NT Act. Such a proceeding must be commenced by a person or persons having first obtained authorisation to bring it. Authorisation under s 251B of the NT Act extends to an authorisation to deal with matters arising in relation to the application. Accordingly, when a compensation application is commenced “on behalf of” a compensation claim group, there is a pre-existing relationship of some kind between the applicant on the one hand and those who have authorised the applicant on the other. The concept of “opting out” forms no part of the scheme.

117    In the present case, the fact of authorisation of the Melville Applicant is a substantive matter remaining in dispute. On the assumption that the authorisation exists, the consequences that flow from it may also be disputed. Without expressing a concluded view on the operation of the law, the relationship may be akin to a relationship of agent and principal giving rise to fiduciary obligations. Relatedly, an issue might arise as to whether or not the authorised applicant (or only some persons comprising that applicant) may bind a compensation claim group to acts done in connection with the preparation and prosecution of the claim without first obtaining the consent of the principal.

118    I make those observations at a general level to explain why I do not consider it appropriate to use language directed at protecting any Compensation Sum from claims related to legal costs per se. The word “protect” is apt to imply that any diminishment in the Compensation Sum referable to costs agreements or funding agreements is necessarily an evil that must be prevented in all cases. Mr Wishart’s use of that language indicates that QSNTS has a view it wishes to advance about questions of fact and law that may relate to the rights and interests of the Melville Applicant, the Pitta Pitta people, solicitors asserting costs claims and (perhaps) litigation funders seeking repayment and commission. The respective rights and obligations of those participants may include questions about the proper construction of the NT Act, the application of the general law as it relates to fiduciary relationships (solicitor/client and principal/agent), privity of contract, unjust enrichment and other equitable doctrines underpinning the asserted solicitors’ liens.

119    In addition, Mr Wishart’s concerns are founded on a belief that the Melville Application is not authorised. Relatedly, there is an unspoken assumption underpinning his correspondence to the effect that the Pitta Pitta people have not authorised the Melville Applicant to take steps creating rights in third parties to be paid money from any compensation that may be described as the fruits of the Melville Application. There is also an assertion that a group of only some of the people who comprise the Melville Applicant cannot bind the Pitta Pitta people in a way that exposes the Compensation Sum to equitable solicitors’ liens or (perhaps) claims founded in contract by litigation funders. I express no view about the correctness of those assertions and beliefs.

120    I raise them here because I have some difficulty reconciling the narrow compass of the proposed intervention conveyed in oral submissions (being an impartial assistance role) with the more active position imparted by Mr Wishart in his affidavits apparently founded on a particular view of the facts and law.

121    As to the proposed limited role, Counsel for QSNTS confirmed that the proposed intervention would be limited to assisting the Court to apply the law to the facts as found. I am not satisfied that the Court presently requires assistance of that kind, over and above that which can be expected to be provided by the parties, competently and independently advised. Even if that were not the case, I consider QSNTS’s correspondence foreshadowing a preferred view about questions of law renders it an unsuitable candidate for the more narrow and independent role it proposed in oral submissions to take. In addition, the appearance of its independence would be affected by the circumstance that it remains the solicitor on the record for Pitta Pitta PBC, which persists in its position that the Melville Applicant is not authorised to bring the Melville Application (so assuming a particular view of the facts). Pitta Pitta PBC may itself be expected to make submissions on the question of whether the Melville Applicant has bound the Pitta Pitta people to the agreements and arrangements it may have entered into in relation to costs and funding (and if not why not). As such, there is already a contradictor before the Court in relation to the claims asserted by ESJ Law and Bennett & Philp. The Court may also have regard to the role of the State in assisting the Court to identify the applicable law and the scope of its powers thus far it has not been asserted by any party that the State should not assist the Court in relation to matters relating to costs.

122    As discussed below, the Court may also exercise powers of its own initiative after first hearing from the parties, including so as to protect against an abuse of its processes. That may extend to ensuring (so far as is appropriate) that legal practitioners and other fiduciaries appearing before it comply with their duties when bringing or defending an application.

123    For the purposes of r 9.12 of the Rules, I am not satisfied that the limited independent role of the kind ultimately sought by QSNTS would be useful. If QSNTS seeks to play a more active role as contradictor in order to positively advance its preferred construction of the NT Act (or a position with respect to the operation of the general law), then it may make a renewed application in no uncertain terms at any time.

124    On the present application, I have placed little weight on the circumstances relating to the composition of the membership and Board of Pitta Pitta PBC. The issue is one of considerable importance to the Pitta Pitta people (and others). However, it is a matter that ought not stand in the way of an award of compensation by consent, having regard to some of the clauses of the in principle agreement. At a previous hearing the State identified those clauses intended to ensure that any Compensation Sum paid in accordance with an order under s 87 of the NT Act is to be held on trust by an entity other than Pitta Pitta PBC, and controlled only by the persons described as the holders of native title rights and interests in the Determination. That appears to the Court to be a sensible means of avoiding intra or intergroup disputes getting in the way of a compromise with the State on the substantive issues arising on the originating application. No party has suggested that there cannot be a determination made under s 87 of the NT Act for so long as disputes concerning the control of Pitta Pitta PBC remain unresolved. Indeed the parties to the in principle agreement have expressly agreed that resolution of that dispute would be delayed.

Section 37M of the FCA Act

125    The power in r 9.12 of the Rules to grant leave to a person to intervene in a proceeding forms a part of the Court’s civil practice and procedure provisions for the purposes of s 37M of the FCA Act. Their overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. To act justly in the circumstances of the present case requires justice to be afforded to all persons whose rights and interests may be affected by the outcome both in respect of the central controversy concerning the sum of compensation and all related controversies that may arise. In the present case, that includes the Pitta Pitta people as well as the named parties to the proceeding and (thus far) the two interveners. Section 37M(3) requires that the Court’s procedural powers be exercised “in the way that best promotes the overarching purpose”. That requires the Court to have regard to alternate means by which the purpose may be promoted that are preferable to the proposed intervention of QSNTS.

126    I have mentioned that on an application for an order under s 87 of the NT Act, the Court should be satisfied that any agreement put forward by the parties has been freely entered into by parties having been competently and independently represented and advised. The Court may be unwilling to make an order if matters previously brought to the Court’s attention and forming a part of its record would impede it from reaching that state of satisfaction. A concern underpinning the application of QSNTS is the apparent lack of information about the full extent of the arrangements and agreements entered into by the Melville Applicant in circumstances where the Pitta Pitta people may soon be asked to pass resolutions affecting their rights and interests as a group related to that subject matter. That is a legitimate concern. It is presently shared by the Court, to the extent that it potentially affects the use of the Court’s processes and resources.

127    The concern arises because of the inherent nature of a representative proceeding involving the potential for the interests of parties, represented persons and lawyers to diverge. Whilst the statutory context is different, the following observation of Gageler CJ, Gleeson and Jagot JJ in Lendlease Corporation Limited v Pallas [2025] HCA 19; 99 ALJR 834 in respect of a class action resonates with the Court in the present proceeding as it no doubt does with the parties’ legal advisers and representatives (at [22]):

The salient point is this. It is not to be assumed that the interests of a representative plaintiff and the representative plaintiff’s lawyers are continuously consistent and congruent throughout a representative proceeding. It is not to be assumed that the interests of a defendant and the defendant’s lawyers are continuously consistent and congruent throughout a representative proceeding. It is also not to be assumed that the interests of a representative plaintiff and the representative plaintiff’s lawyers, in respect of each step in a representative proceeding, are opposed to the interests of a defendant and the defendant’s lawyers in that proceeding. Equally, it is not to be assumed that the interests of a representative plaintiff and the representative plaintiff’s lawyers are inconsistent and incongruent with the interests of group members who have neither opted out nor registered their participation in the proceeding. There are potential and actual inconsistencies of interests between all these persons, but those inconsistencies will wax and wane depending on the circumstances. The potential for inconsistencies of interests is inherent in the statutory scheme and is to be managed by the Court in the interests of the administration of justice as they appear in the circumstances of each case.

(emphasis added)

128    See also Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106 (at [37] – [42], [65]).

129    The letter sent by QSNTS to the Pitta Pitta people on 16 April 2025 disclosed some information known to Mr Wishart but was necessarily limited to those matters within his knowledge. In the letter he expressed a concern that the cost and funding arrangements between the Melville Applicant and APIX are unknown, as are other important facts and circumstances. To the extent that any party criticised Mr Wishart for sending that letter, the Court makes it clear that it does not join in that criticism. Given its statutory functions, QSNTS can be expected to persist in such activities as it considers necessary and appropriate for the fulfilment of its statutory functions and the outcome of this interlocutory application should not be understood to discourage those activities.

130    It may reasonably be inferred that Mr Wishart was motivated to ensure that the Pittta Pitta people are equipped with all relevant information (and that they have sufficient time to consider it) before passing any resolution that may affect (or purportedly affect) any rights or interests they may presently have or the rights and interests presently held by others. On the material presently before me, that is a legitimate concern.

131    To that I would add that the Pitta Pitta PBC (as co-applicant) should not be left guessing at the existence and possible extent of potential claims relating to costs that may impact on any Compensation Sum to which it has agreed on an in principle basis in the intended compromise of the same claim founded on the same originating application. The full extent of possible claims on the Compensation Sum referable to legal costs and fundings presently remains within the knowledge of the Melville Applicant, its advisers and funders. In accordance with the High Court’s observation in Lendlease I am presently of the view that there is a real potential for inconsistencies of interest to arise (if they have not arisen already) and that those issues may be managed by the Court in the interests of justice as they appear in the circumstances of this case.

132    In light of the above, the parties should be heard on the question of whether there should be an order requiring the Melville Applicant (and perhaps its advisers separately) to give full and frank disclosure of all arrangements and agreements entered into by them or any one of them that they have reason to believe may conceivably impact upon any Compensation Sum. That is especially so because the Melville Applicant appears to assume (rightly or wrongly) that it stands in a relationship of agent with the Pitta Pitta people as principal, presumably invoking principles of the kind discussed in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 and Quickfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 209 FCR 368. I discern those assumptions from the position adopted in response to the ESJ Law claim based solely on discrete aspects of quantum, underpinned by an assumption that the Pitta Pitta people are otherwise bound by the acts and omissions of those who comprise the Melville Applicant or a subset of them.

133    To be clear, I have made no finding about the nature of that relationship. It is sufficient to say that for so long as the Melville Applicant maintains the position described above, it should conduct itself in accordance with equitable principles defining a fiduciary relationship of the asserted kind, starting with disclosure of all of the facts and circumstances that may bear on any Compensation Sum that may be paid for the benefit of the asserted principal, should an order under s 87 of the NT Act be made.

134    Depending on the cost arrangements and agreements disclosed, there may also be a need for individuals or groups to obtain independent legal advice about their respective rights, obligations and duties. In that event, the Court may consider the issue of a further certificate under r 4.12 to independent lawyers to play advisory and contradictory roles as may be considered appropriate after hearing from the parties and affected non-parties.

135    QSNTS has advised the Court of its preparedness to fund and facilitate the provision of independent legal advice should it be required. For that reason, I consider it appropriate that QSNTS be granted an audience in its own right at future hearings so that it may address the Court on the form that any such funding and facilitation might take.

136    I am presently of the view that the adoption of procedures of that kind would best promote the overarching purpose of the civil practice and procedure provisions and that such procedures are preferable to permitting QSNTS to play the limited role it ultimately proposed on this application. In the ordinary course, it is preferable that contradictory positions be put forward by parties to the litigation on their own behalf with the benefit of all relevant information and the benefit of competent and independent advice and representation.

137    The proposed course has the potential to further delay the 27 July meeting. However, the efficiency of proceeding on that date may well prove illusory if there remains debate about appropriate resolutions, and an apparent lack of information necessary to inform what those proposed resolutions should be.

Associate:

Dated:    9 July 2025

SCHEDULE OF PARTIES