Findings
53 In my view, the decision of 12 of the 15 persons constituting the applicant, that a notice be filed changing the solicitor on the record, was effective. I form this view for the following reasons.
54 First, the authorities to which I have referred are unambiguous in finding that the authorisation of each person comprising the applicant in any case is of the named persons, personally: Butchulla at [42], [45], Doolan at [56], Chapman at [9]. While the Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005) defines "jointly" as meaning "together, in common", s 61(2)(c), in its reference to persons being jointly "the applicant" does not create a legal entity itself capable of suing, or imply that the ability of the persons constituting the applicant to act is dependent upon the others continuing to act (Chapman at [9]). Indeed, I respectfully note the point made by Spender J in Doolan at [66]-[67] in relation to the requirement under s 62(1) that a claimant affidavit must be accompanied by "an affidavit sworn by the applicant", and his Honour's observation that the requirements of s 62 are satisfied by the filing of affidavits by each of the persons who constitute "the applicant" deposing to specified beliefs. Clearly, s 62 does not contemplate a "joint" affidavit by members of the applicant.
55 Second, while the applicant to the motion relies in particular on s 61(2)(c) and its provision that the persons authorised to be "the applicant" are jointly "the applicant", the section does not require joint authorisation. I am unable to identify any legislative provision which requires joint authorisation. Certainly s 251B, which deals with the process whereby persons in the claim group authorise persons to be the applicant and to deal with matters arising in relation to the native title determination application, does not require joint authorisation of the persons comprising the applicant. As Logan J observed in Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2011] FCA 690:
The relevant authorisation appears in the minutes of the native title claim group meeting of 2 September 2009 exhibited to the affidavit of Moana Biddle filed on 25 September 2009. It authorises the named persons, which comprise the remaining members of the group and Mr William Santo to "make an application in the court". As was submitted on behalf of the remaining members of the group, the authorisation thus conferred was not expressed in terms of joint authority. Further, and again as submitted on their behalf, the authorisation was in the broadest terms and has not been revoked. It remains the case that, as Kiefel J held in Butchulla, such an authorisation is of each of the named persons personally. In the absence of any contrary indication either in the Native Title Act or in the terms of the appointment itself, and neither contains a contrary indication, the presumptions applied to personal appointments operates. The requirement that the authorised persons act together is a requirement of the Native Title Act not of the terms of their appointment. So far as the terms of each individual member's appointment are concerned, it continues to operate until it is revoked or until the person ceases to be willing and able to act in a representative capacity. Mr William Santo has given evidence that he is no longer willing so to act.
(Emphasis added.)
56 Third, the operation of s 61(2)(c) is referable to native title determination applications that have already been made. This is clear from the language of s 61(2)(a). To that extent, it appears that s 61(2)(c) operates after the authorisation process has taken place (in accordance with s 251B) and the application has been made by the applicant. It follows that s 61(2)(c) does not affect the nature of the authority conferred on the persons who comprise the applicant.
57 Fourth, the purpose of ss 61(1), 62(2)(c) and 251B is to seek a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for dispute which might stifle the progress of claims (Butchulla at [38], [42], cf Doolan at [65] and Chapman at [11]). Section 61(2)(c), which provides that the relevant persons are "jointly" the applicant, is to be interpreted having regard to that purpose (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382, Butchulla at [37]). An interpretation of "the applicant" within the meaning of ss 61(1), 62(2)(c) and 251B, which gives effect to decisions of the majority of those persons comprising the applicant, is consistent with the purpose of achieving a workable and efficient method of prosecuting claims for native title determinations. I do not consider the notion that the persons comprising the applicant are to act together, is inconsistent with an express term of their authorisation that they may do so on the basis of majority decision, any more than it is inconsistent with an express term of their authorisation that the authorisation is of the persons or so many of them as are willing and able to act (cf Butchulla at [42], Doolan at [57], Anderson at [21], Dodd at [22]).
58 I do not accept the submission of the applicant to the motion that the legislation anticipates the inevitable enlivening of the s 66B procedure, and the associated expense and inconvenience of convening authorisation meetings of the claim group, every time there is a disagreement among those persons comprising the applicant in respect of a decision which cannot be made unanimously. Such a concept is one conducive to stifling the progress of claims, and would be contrary to the purpose of the legislation.
59 Fifth, s 62(1)(c) is a definitional term referring to the persons authorised under s 251B. In other words, while the persons authorised to comprise the applicant are each authorised in their personal capacity, they are nonetheless "jointly" the applicant. They are not authorised separately as multiple applicants in respect of the determination application (cf Butchulla at [39], Lennon v State of South Australia [2010] FCA 743 at [6]) - they are one applicant, acting together and in common.
60 Sixth, and critically, I do not consider that s 61(2)(c) ought be interpreted in such a way as to remove the autonomy of the native title claim group itself to place a condition on the manner in which the applicant can make effective decisions. Section 251B of the Act confers power on the native title claim group to authorise a person or persons to make a native title determination application. As Kiefel J observed in Chapman at [9]:
The continuance of authorisation must depend upon the terms of the authorisation, a matter upon which the NTA did not speak. Section 251B recognises that, in some cases, proper authorisation may require the use of traditional customs and laws. Beyond that, the NTA does not contain any reference to the terms upon which persons may be authorised. (cf Butchulla at [40]-[41])
(Emphasis added.)
61 A similar observation was made by French J in Anderson at [48] where his Honour said:
Alternatively, it may be that the authority conferred upon the applicants is conferred in terms that enable it to be exercised according to a majority vote. That would, however, depend upon the terms of the authority. I express no concluded view on the efficacy of such a procedure.
62 In this case, unlike in Tigan, the Wulli Wulli claim group, in authorising the 15 persons to be the applicant for the purposes of the claim, resolved that those 15 persons be empowered to act in accordance with a decision by majority. It is entirely reasonable, and consistent with the terms and purpose of the Act to promote progress of a claim, that the claim group should be able to so qualify the decision-making role of the applicant. In my view, the Act supports an approach whereby the claim group sanctions decisions of the applicant by majority, and further supports effect being given to majority decisions of the applicant in such circumstances.
63 The appropriate order is to dismiss the notice of motion.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.