Native Title Act 1993 (Cth), s 26, s 26(1), s 29, s 31, s 32, s 33, s 61(1), s 61(2), s 61(3), s 253

Rules of the Supreme Court 1971 (WA), O 6 r 5, O 18 r 12(1)

Statement of claim struck out in part with leave to replead

Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600

Carnie v Esanda Finance Corp Ltd [1995] HCA 9; (1995) 182 CLR 398

Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1

Con Kallergis Pty Ltd (T/A Sunlighting Australasia Pty Ltd) v Calshonie Pty Ltd (Formerly C W Norris Pty Ltd) (1998) 14 BCL 201

Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 All ER 716

Expectation Pty Ltd v Pinnacle VRB Ltd [2004] WASCA 261

North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595

Re Tottenham v Tottenham [1896] 1 Ch 628

The Wik Peoples v The State of Queensland (1996) 187 CLR 1

Walford v Miles [1992] 2 AC 128

Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996

Automasters Australia Pty Ltd v Bruness Pty Ltd & Anor [2002] WASC 286

Banque des Marchands de Moscou v Kindersley [1951] 1 Ch 112

Brownley v State of Western Australia WAIG 151 of 1988

Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33

Day v William Hill (Park Lane) Ltd [1949] 1 KB 632

Dempster v NCSN (1993) 9 WAR 215

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Edmeades v Thames Board Mills Ltd [1969] 2 All ER 127

Francourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41­703

Grovenor v Permanent Trustee Co of New South Wales Ltd (1966) 40 ALJR 329

Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41

Kimberley Downs v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986

Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233

McKechnie v Campbell (1996) 17 WAR 62

Templeton v Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34

Thiess Contractors Pty Ltd v Placer (Granny Smith) Pty Ltd (2000) 16 BCL 255

Tobias v QDL Limited, unreported; SCt of NSW; 12 September 1997

United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1

1 MASTER SANDERSON: This is the return of two applications, both of which raise short but important questions in relation to native title. Both applications were brought by the defendant. By one application, the defendant seeks to have the proceedings stayed until such time as all proper plaintiffs are identified and joined in the proceedings. By the other application, the defendant seeks to strike out all or alternatively certain parts of the plaintiffs' statement of claim. By agreement between the parties both applications were heard together, with the stay application being heard first. To understand the nature of the defendant's complaint, it is necessary to say something of the facts of the case.

2 It is convenient to begin with a short history of the native title claim of the Wutha People and its dealings with the defendant. The Native Title Act 1993 (Cth) ("the 1993 Act") gave certain indigenous people or groups the right to make claims over land. The Wutha People registered a claim on 19 January 1996, this claim being designated by the Native Title Tribunal WC 96 - 8. A further claim in the same terms but in relation to adjoining land was registered on 13 March 1996. Copies of these two applications appear as annexures "PNT1" and "PNT2" to the affidavit of Paul Nathan Tolcon ("Mr Tolcon") sworn 9 February 2006 and filed in opposition to this application.

3 Section 61(1) of the 1993 Act allowed "a person or persons claiming to hold native title either alone or with others" to make an application for determination of native title. By s 61(2) a "prescribed form" making a native title application had to be given "to the Registrar". Section 61(3) provided that "An application made by a person or persons claiming to hold native title, or to be entitled to compensation, with others must describe or otherwise identify those others. In doing so, it is not necessary to name them or to say how many there are." The statutory scheme at that time is explained in North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595 at 613 - 622.

4 The annexures to the affidavit of Mr Tolcon to which I have referred, reveal that:

(1) the Wutha claims were brought by Raymond William Ashwin ("Mr Ashwin") (who is an elder of the Wutha People);

(6) the two claims are similar, except only as to geographical areas being claimed.

5 By registration the Wutha claims became registered native title claims and the first-named plaintiff (Mr Ashwin) became a registered native title claimant, also known as the native title party in respect of the registered native title claim: see definitions in s 253. As a consequence of the registration process under the 1993 Act, Mr Ashwin, as registered native title claimant (and the native title party), was entitled to the protection of the 1993 Act and acquired the rights given under the Act. In particular, s 26 provided that no "permissible future act", including the granting of mining or other tenements, could be done unless notice of the proposed act was given to the registered native title claimants whose land would be affected: s 29. Further, s 31 - s 33 of the Act require that "negotiations" took place with the claimants. These are the so called "right to negotiate" provisions of Pt 2 Div 3, subdivision B of the Act. It is important to note that the parties obliged to negotiate are what is defined in s 26(1) as the "Government party". In this case, that meant the State of Western Australia.

6 In the mid-1990s the predecessor of the defendant, Anaconda Nickel NL ("Anaconda"), was in the formative stages of a proposed nickel project called "Murrin Murrin". Anaconda required approval from the State of Western Australia for the grant of a range of mining and other tenements. But the State of Western Australia was not in a position to grant any tenements in relation to land over which there was a native title claim. There were in fact a multiplicity of native title claims registered over land to which Anaconda required access. As a consequence, Anaconda dealt with many claims groups and reached agreement for access with a number of such groups. One of the native title claimants was the Wutha Group and Anaconda reached agreement with this group.

7 The fact that Anaconda reached agreement with a native title group did not solve all of the difficulties. The right to negotiate held by the native title group was a right to negotiate with the State government. Anaconda was effectively excluded from the process. To overcome this difficulty, Anaconda reached agreement with the native title group and Anaconda and the native title group then approached the State government advising that a deal had been reached. This led to what is known as the "State Deed". This Deed was necessary to allow the Department of Minerals and Energy to grant the necessary tenements and eventually to enable Anaconda to obtain the grant of land that it needed. The result then was two agreements. The agreement between Anaconda and the plaintiff is titled "Ancillary Deed to Deed for Grant of Mining Tenement". It appears as annexure "PNT7" to Mr Tolcon's affidavit. Appearing as an annexure to that agreement is a copy of the State Deed. The parties to that Deed are the State of Western Australia and the Minister for Mines, the native title party, being in this case the plaintiff, and Anaconda.

8 It is worthy of note that in reaching agreement with the Wutha People, Anaconda were content to deal with Mr Ashwin. In the Ancillary Deed, Mr Ashwin is said to be the person "who executes this Deed in the capacity of the Native Title Claimant for and on behalf of the Wutha People and Mr Ashwin (the 'Native Title Party')". Given the scheme of the Act, it is difficult to see how Anaconda could have dealt with anyone other than Mr Ashwin. He was the registered native title party. It was he who held, on behalf of the Wutha People, the right to negotiate with the State government. It was that right to negotiate which had to be compromised before the State was in a position to grant any mining tenements. There was no need for Anaconda to consider who beyond Mr Ashwin might be the persons included in the expression "the Wutha People". Those individuals did not have the right to negotiate, although they were undoubtedly the beneficiaries of that right through Mr Ashwin. But so far as Anaconda were concerned, the relationship between Mr Ashwin and the Wutha People was of no consequence.

9 The State Deed was executed in or about September of 1996. Subsequent to the execution of the deed, Anaconda was able to obtain a grant of the mining tenements it was seeking. A supplementary deed containing additional tenements the defendant wanted was also executed in or about that time: see annexure "PNT8" to Mr Tolcon's affidavit. The supplementary deed does not materially affect the position.

10 On 20 February 1998 under the 1993 Act, Mr Ashwin requested that three others join him as co-claimants on the two claims: see annexure "PNT3" to Mr Tolcon's affidavit. This he was entitled to do. His request attached affidavits from the three proposed co-claimants as was then required. On 6 March 1998, the Native Title Tribunal accepted the addition of the three other co-claimants as native title parties: see annexures "PNT4" and "PNT5" to Mr Tolcon's affidavit.

11 From 6 March 1998 then, the Wutha claims had four registered native title claimants, they being the present plaintiffs. The plaintiffs were then the native title party to the Wutha claims. These claims continued to include the area of land affected by the mining tenements Mr Ashwin had consented to by the State Deed and the agreement the subject of this action. There has been no other amendment or change to the status or capacity of the "Native Title Party". The defendant was notified of these changes and made no objection: see par 4 of Mr Tolcon's affidavit.

12 In September 1998 the 1993 Act underwent substantial amendment. Inter alia, the effect of the amendments was that the procedure for the making and registration of claims was considerably tightened to ensure that claims were properly authorised and had a proper anthropological basis and had merit. As a consequence, all claims then registered had to meet the new and much more rigorous test. The two Wutha claims went through this re-registration process and were combined into one claim and accepted for registration on 15 June 1999: see annexure "PNT6" to Mr Tolcon's affidavit. The plaintiffs were registered as the native title claimants. It is relevant to note that these registration procedures covered aspects such as authorisation (see Mr Tolcon's affidavit, annexure "PNT6" at pages 57 and 58) and that the Wutha People "are described sufficiently clearly so that it can be ascertained whether any particular person is in that group": see annexure "PNT6" at pages 63, 64 and 65.

13 It is common ground between the parties that the defendant's project based on the mining tenements secured as a consequence of dealing with Mr Ashwin, are now up and running. In other words, the defendant has achieved everything it sought in its dealings with the Wutha People. On the other hand, the Wutha People say that the benefits they were to receive under the agreement - or at least some of them - have not been provided by the defendant. Of course, the merits of that claim are yet to be tested.

14 The defendant complains that the plaintiffs have filed three documents in these proceedings, each of which disclose a different plaintiff and/or a different capacity in which that plaintiff purports to sue. The first document is the original writ of summons and original statement of claim filed on 6 December 2005. In the heading of the original writ, Mr Ashwin claimed to be suing the defendant "for and on behalf of the Wutha People". The original statement of claim which accompanied the original writ did not identify the Wutha People.

15 The second document is the amended writ and amended statement of claim filed on 3 November 2005. In this document, the additional plaintiffs have been added as plaintiffs and the reference to the representative nature of the proceedings (that is, that they are being conducted "for and on behalf of the Wutha People") has been removed.

16 The third document to which the defendant refers is Mr Ashwin's affidavit sworn 24 January 2006. In pars 12, 14, 15, 21, 28 and 40 of his affidavit, Mr Ashwin swears that he and the additional plaintiffs are authorised to represent the Wutha People and to conduct these proceedings.

17 The defendant says it is entitled to know who its adversary is in these proceedings and what case is being made by those parties against it. The defendant says that neither of these two matters can be ascertained on the present state of the documents.

18 As I understand the defendant's position, it says that in truth Mr Ashwin and/or the present plaintiffs are conducting what are generally called representative proceedings. That being so, it says that O 18 r 12(1) applies. That rule is in the following terms:

"Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in Rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them."

19 This rule is not often relied upon - either in this jurisdiction or in other States which all have a broadly similar provision. However, the New South Wales equivalent of this rule did receive detailed consideration by the High Court in Carnie v Esanda Finance Corp Ltd [1995] HCA 9; (1995) 182 CLR 398. From this decision, two rules emerge which are of importance for present purposes. First, once the existence of numerous parties and the requisite commonality of interest are ascertained, the rule is brought into operation subject only to the exercise of the Court's power to order otherwise: per Mason CJ, Deane and Dawson JJ at 405. It is important to note that it is for the party commencing proceedings to determine whether or not it satisfies the requirements of O 18 r 12(1). No application has to be made to the Court to authorise representative proceedings. Those proceedings can be commenced by the party and "unless the Court otherwise orders" continued. This is an important point that I will discuss further below.

20 The second point that emerges from the decision is that when considering whether representative proceedings should be allowed to continue, matters to be taken into account include whether representative proceedings would involve greater expense and prejudice than other modes of trial, whether consent is required from the group members, the right of members to opt out, the position of persons under a disability, alterations to the description of the group, settlement and discontinuance of the proceedings and notices to various group members.

21 Against that background, it is clear that not only are representative proceedings in this case appropriate, but that there is probably no other realistic way to proceed. This is a case where it would never be possible to determine with precision who might be included in the expression "the Wutha People". To undertake the exhaustive enquiries that the defendant seems to regard as necessary would be expensive, time consuming and ultimately unnecessary. There is an added safeguard. If the defendant upon making its own enquiries is concerned that particular individuals may not be included as part of the representative proceedings, these individuals can be joined separately as plaintiffs to the action. It lies in the hands of the defendant then to protect its position if it feels the need to do so.

22 The nature of these proceedings is also to be borne in mind. By their action, the plaintiffs seek to have the defendant comply with the terms of the deed in circumstances where they say the defendant has not done so. There is at present no question of any direct monetary benefit passing to any of the plaintiffs. In other words, the nature of the proceedings are not such that representative proceedings are inappropriate. It might be different if all of the individuals in the representative proceedings were entitled to some form of monetary payment by way of compensation. Then the particular circumstances of each individual may be relevant and representative proceedings may not be appropriate. But that is not the case here.

23 I mentioned above the right of a party to commence representative proceedings and, subject to the order of the Court, to maintain those proceedings. It is not necessary for a party who commences proceedings in a representative capacity to at any stage obtain the approval of the Court to do so. No doubt the Court could, of its own motion, decide that representative proceedings were not appropriate; and there appears to be no reason why a defendant could not object to representative proceedings being maintained.

24 In this case the defendant appeared to approach this matter on the basis that it was for the plaintiffs to establish that it was appropriate and proper that representative proceedings should be maintained: see in particular par 31 of the defendant's outline of submissions. It is perhaps unhelpful to talk of any party carrying an onus in matters of a procedural nature such as this. What is clear, however, is that it is for the defendant, by evidence, to make out a case for saying that representative proceedings are inappropriate. The plaintiffs have a right to be heard and to put forward any evidence they wish to justify their position. But it is for the defendant to demonstrate that the representative proceedings are inappropriate. In this case, it has failed to do so.

25 The defendant objected to the action being in the name of the present plaintiffs. It was submitted that as the action was commenced in the name of Mr Ashwin, it was simply not open to the present plaintiffs to join in as plaintiffs to the proceedings without taking proper steps to do so. On the part of the plaintiffs it was argued that the proper plaintiffs are the present four named plaintiffs as the registered native title claimants and that to simply name Mr Ashwin as the plaintiff in the proceedings was nothing more than a misdescription which had been rectified. This is an entirely arid argument. In my view, it would have been open to Mr Ashwin alone to commence these proceedings. The fact that there are now four plaintiffs really makes no difference. I will make such orders as might be necessary to regularise the position and allow the present four named plaintiffs to maintain these proceedings.

26 It was also submitted that the proceedings were defective because the representative capacity of the parties should be stated in the title to the action. Reliance was placed on the old English case of Re Tottenham v Tottenham [1896] 1 Ch 628 at 629. Once again, this is an arid point. The statement of claim makes it plain that the plaintiffs are engaged in representative proceedings. A reading of the Tottenham decision (supra) makes it plain that North J was not dealing with any point of principle. Rather, he was offering a view as to what he thought should be done to bring the nature of the proceedings - that is to say the representative nature of the proceedings - to the attention of the parties. Order 6 r 5 requires that a plaintiff who sues in a representative capacity should make mention of that fact in the indorsement. If the writ was indorsed rather than accompanied by a statement of claim, doubtless there would be a requirement that the representative nature of the proceedings be mentioned. But here where there is a statement of claim and where the representative nature of the proceedings is entirely apparent from the statement of claim, there is, in my view, no need in the title to the proceedings to mention the representative capacity in which they were brought. There is no such requirement in the rules.

27 Turning then to the defendant's complaints as to the statement of claim, these may be divided into two parts. The first relates to a plea of a fiduciary relationship between the plaintiffs and the defendant. By par 15 of the statement of claim, it is said that by cl 11.1 and cl 11.2 of the Ancillary Deed the defendant "agreed and thereby accepted the fiduciary obligation ...". With respect, that is a slightly odd way to plead a fiduciary relationship. The cases make plain that a fiduciary relationship may arise as a result of the nature of the relationship between parties. There are, of course, established relationships of a fiduciary nature where the mere characterisation of the relationship is enough to establish its fiduciary nature. The relationship between agent and principal and solicitor and client are but two examples. But there may be other relationships which are fiduciary. As Brennan CJ said in the The Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 95, apart from anything else it is necessary to identify some action or function, the doing or performance of which attracts the supposed fiduciary duty to be observed. The question, then, is whether cl 11.1 and cl 11.2 of the Ancillary Deed satisfies that requirement.

28 Clause 11 of the Ancillary Deed is titled "Future Negotiations". It is in the following terms:

"11.1 In the event that Anaconda or any assignee or joint venture partner lodges a notice of intent to mine it shall forthwith negotiate in good faith with the Native Title Party with the object of reaching agreement on, but not limited to the following matters before mining commences:

(b) The award of project contracts to enable the purchase of plant and equipment by the Native Title Party and to supply, instal [sic] and maintain water lines to service the Project;

(c) Environmental and Aboriginal heritage protection;

(e) Enterprise opportunities including preference to members of Wutha People;

(k) Payment of reasonable expenses for future negotiations including legal expenses.

11.2 Agreement shall be reached between the Native Title Party and Anaconda or any assignees on each of the above matters to be negotiated under this clause before the commencement of any mining operations."

29 It is clear that these clauses alone could not give rise to a fiduciary duty. The question may be put in this way - what is it about cl 11.1 and cl 11.2 that establishes the fiduciary duty? Both clauses anticipate negotiations. They also anticipate negotiations being conducted in good faith. But that alone could not give rise to a fiduciary relationship. There would need to be something more.

30 It is unnecessary to develop this point further. It is sufficient if I say that I am satisfied that as presently pleaded the claim of a fiduciary relationship cannot be sustained. However, it may be that material facts can be pleaded which establish that there was indeed a fiduciary relationship between the parties. Such a plea may include a reference to cl 11. I propose, therefore, to allow the plaintiffs to replead in relation to the claimed fiduciary relationship, such leave being unconditional.

31 The second complaint is more fundamental. It again focuses on cl 11. It is said that the clause embodies an agreement to agree and does not thereby give rise to any legal obligations. The defendant made reference to Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600 per Gibbs CJ, Murphy and Wilson JJ at 604; Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 per Handley JA at 40, Kirby P (with whom Waddell AJA agreed) at 17 - 18. Further, the defendant said that cl 11.2 requires that "agreement shall be reached" on each of the matters to be negotiated in cl 11.1 "before the commencement of mining operations" (my emphasis).

32 It was said that such a promise is an agreement to agree at some time in the future and is unenforceable. Reference was made to Expectation Pty Ltd v Pinnacle VRB Ltd [2004] WASCA 261 per Steytler J at [66]; Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236 at [57] - [59] and [103] - [105].

33 The defendant went further. It said that even if the agreement to negotiate is not characterised as an agreement to agree, it is still unenforceable. Counsel accepted that this issue had not been definitively resolved in Australia, although it now appears settled in England that agreements to negotiate are not enforceable: see Courtney & Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 All ER 716 per Lord Denning at 720; Walford v Miles [1992] 2 AC 128 per Lord Ackner at 138. Be that as it may, counsel submitted that even if such an agreement might be enforceable, it will not be enforceable where there is no process for resolving any disagreement. It was said in the absence of such a process, either party may break off negotiations at any time for any reason and may do so even where there is a requirement to act in good faith. It was said here that as there was no way of resolving any disagreement in the Ancillary Deed, this agreement to negotiate was unenforceable. Reference was made to the decision in Con Kallergis Pty Ltd (T/A Sunlighting Australasia Pty Ltd) v Calshonie Pty Ltd (Formerly C W Norris Pty Ltd) (1998) 14 BCL 201 at 211 - 212 and to Aiton (supra).

34 The strength of the defendant's argument must be acknowledged. In the light of the authorities quoted, there would seem to be real doubt as to whether or not cl 11 is enforceable. Paragraphs 22 and 28(a) of the statement of claim make it plain that the plaintiffs are indeed seeking specific performance of the obligations under cl 11 of the Ancillary Deed. It should also be said, with respect to counsel for the plaintiffs, that no convincing argument was put in answer to the defendant's submissions.

35 On balance, I am not satisfied that the plaintiffs' pleading ought be struck out. All of the relevant cases on strike outs make it plain that care needs to be taken not to stifle the development of the law. This case has to do with native title. While it cannot be suggested that there is any separate branch of jurisprudence dealing with native title or that common law principles applicable to contracts generally are not applicable to native title agreements, care must be taken in what is a new and evolving area of the law. If the defendant's argument is correct and cl 11 has no application, then the plaintiffs are, in economic terms, left with nothing. It is true, as was pointed out by counsel for the defendant that in cultural terms the plaintiffs' position is protected by the agreement and that protection will not be affected by the failure of cl 11. But if the defendant's argument succeeds, the right to negotiate provisions contained in the native title legislation which can, and in many cases has, led to economic benefits to native title claimants will amount to nothing. If that is to be the outcome of these proceedings then, in my view, it is an outcome which should be reached only after careful consideration of all relevant evidence. It is not a matter which should be determined on a pleading summons.

36 I will hear the parties as to the precise form of orders and as to costs.