Boney v Attorney General of New South Wales

The improper purpose issue 6 The former applicant contended that his Honour erred in finding that the dominant purpose of NTSCORP in calling and facilitating the July 2016 meeting in the exercise of its function as a representative body under ss 203BB and 203BF of the Act, was to assist the claim group following a number of requests to do so. The primary judge found that NTSCORP's desire to retain its former role and not to have to hand over its file formed part of its purpose, but that that was not a substantial purpose in its decision to call the meeting. His Honour applied as the test that a discretionary statutory power must be exercised for a purpose for which the power was granted and not for an ulterior purpose, and that it was enough to invalidate a decision if an improper purpose was a substantial purpose for the exercise of the power. The former applicant did not challenge that formulation of the test of improper purpose in the notice of appeal. 7 The primary judge made his finding after considering and accepting the evidence of both the chief executive and a lawyer of NTSCORP, as to each of their reasons for calling the July 2016 meeting. Neither witness was challenged in cross-examination to suggest that her or his dominant or substantial purpose was the impugned one, nor was there any other evidence that was incontrovertible or uncontested, or that made his Honour's finding of NTSCORP's dominant purpose glaringly improbable or contrary to compelling inferences that would be necessary to enable an appellate court to find that he had made an error in his factual findings: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 558-559 [43], per French CJ, Bell, Keane, Nettle and Gordon JJ. 8 Moreover, the former applicant did not put a case at trial that NTSCORP, as a representative body, had acted in breach of s 203BC. That section prescribed how such a body had to perform its facilitation and assistance functions. While it may be possible to argue that the purpose for which an authorisation meeting was convened could invalidate a notice of meeting, there is no sufficient reason to doubt the correctness of the primary judge's finding as to the purposes for which NTSCORP acted. Thus, the former applicant's argument on the improper purpose issue does not warrant a grant of leave to appeal.

The notice issues 9 The first basis on which the former applicant challenged the notice of meeting involved an argument that, properly construed, despite the notice being addressed to the claim group as a whole and posted to all of its members for whom NTSCORP had addresses, and advertised in two newspapers circulating in the claim area, his Honour erred by failing to find that, in fact, the notice was addressed substantially to members of the claim group sympathetic to the cause of NTSCORP and those who wanted to have the former applicant replaced. The former applicant argued that his Honour erred in finding that the notice was directed to all of the members of the claim group expressly and that it could not be described as calling a meeting of only those of its members who held the same concerns as NTSCORP, and those members who, his Honour found, had requested it to convene the meeting. 10 There is no sufficient reason to doubt that his Honour was entitled to make that finding on the evidence. Indeed, the notice commenced, as the primary judge observed in his reasons, with the question of "Who should attend?" and an answer, "The meeting is open to all members of the native title claim group in the Gomeroi people native title determination application" (emphasis in original), before it set out complaints about the conduct of the former applicant, followed by an agenda that included item 4: The agenda for the meeting is: …. 4. Discussion and making decisions on whether the Gomeroi Claim Group wishes to continue to authorise the current Applicant, or to replace the current Applicant. If the claim group wishes to replace the current Applicant, the meeting will consider resolutions to authorise a new Applicant on the basis that the current Applicant is no longer authorised, has exceeded the authority given to it, and/or on the basis that one of the persons jointly comprising the Applicant has passed away. If the claim group authorises a new Applicant, it will be asked to authorise the new Applicant to make an application to the Federal Court for an order under section 66B of the Native Title Act 1993 (Cth) that the new Applicant replace the current Applicant. 11 The second basis on which the former applicant alleged that his Honour had erred was his failure to conclude that the notice was misleading or inadequate in five respects, namely: (1) its failure to describe the interest of NTSCORP in the outcome of the authorisation meeting; (2) its failure to identify NTSCORP's predominant motivation, being the improper purpose in calling the meeting discussed above; (3) its assertion that registration for the July 2016 meeting would only be permitted between 8 am and 12 noon on 19 July 2016, when in fact registration was allowed throughout the two days, including of 43 registrants on the second day; (4) its failure to state that the former applicant could be replaced for any or no reason; and (5) its failure to state that a replacement applicant might be chosen on any basis, including on a basis contrary to that determined in earlier authorisation meetings. 12 The primary judge found that, first, read as a whole, as the claim group would have understood it, the notice made clear that NTSCORP had an interest, because the meeting would consider reinstating it to act as lawyer for the claim group and whomever would be the applicant going forward. That finding was open to his Honour. The second challenge cannot rise higher than the argument on the improper purpose issue. There is no sufficient reason to doubt the correctness of the primary judge's finding on this. His Honour rejected the third challenge to the notice, on the basis that the closest margin on which any resolution was carried at the July 2016 meeting was 51 votes. He found that the former applicant did not lead or identify any evidence that any person had decided not to attend the meeting because the notice had stated that registration would be between 8 am and 12 noon on 19 July 2016. The primary judge said that he was not prepared to infer that at least 51 people, who received the notice of the meeting, were misled into not attending it by reason of the registration time that it set out, or any other alleged defect in it. 13 The fourth challenge does not have any real prospect of success, given that item 4 on the agenda expressly adverted to the claim group's rights (under s 66B(1)(a)(iii) and (iv)) to decide that the former applicant was simply no longer authorised by the claim group to make the application and to deal with matters arising in it, or that it had exceeded the authority given to it. 14 The fifth challenge was to the primary judge's finding that the July 2016 meeting was not bound by a resolution of the 2013 authorisation meeting, at which the former applicant had been authorised to act in a way by being constituted with 19 members, each of whom represented what were said to be each of the 19 regions within the claim area. The former applicant alleged that only one of the 19 members of the former applicant had authority to speak for country in respect of his or her respective area. His Honour found, having seen and heard the witnesses and viewed the video of the two-day meeting, that this issue "seems to have stemmed from the floor of the 2016 Authorisation Meeting". He found that the notice was not misleading or inadequate by failing to indicate that the meeting could take a different course from that taken in the 2013 one. In any event, he was not satisfied that this complaint or any other of the former applicant's complaints about the adequacy of the notice was likely to have made a difference to the outcome of the meeting. Indeed, resolution 9, that the July 2016 meeting passed, decided that the 19 persons to be selected as members of the replacement applicant would represent the Gomeroi people as a whole and not the regions. 15 Once again, the primary judge's findings on the notice issues were open to him, after considering all of the evidence at the trial. We are of opinion that there is no sufficient reason to doubt the correctness of those findings, having regard to Robinson Helicopter 331 ALR at 558-559 [43].

The discretion issue 16 Finally, the former applicant argued that, even if its other grounds were rejected, his Honour erred in exercising his discretion under s 66B(2) to order that the former applicant be replaced. To succeed on this ground, the former applicant had to demonstrate an error in the exercise of his Honour's discretion, in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505. The former applicant identified the error in his Honour's reasoning as falling within what Dixon, Evatt and McTiernan JJ there described as follows: It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (emphasis added) 17 The former applicant contended that there were several procedural defects in the way in which the July 2016 meeting proceeded, including as to the members voting and who was permitted to vote, involving irregularities in registration of voters. 18 The primary judge concluded that those defects that he found in the conduct of the meeting, taken alone or in combination with all of the other matters in issue before him, would have made no material difference to the outcome of the meeting. He was also mindful that the exercise of his discretion adversely to the replacement applicant would defeat the will of the claim group as a whole, as expressed at the meeting. He referred to what Stone J had said in Lawson on behalf of the "Pooncarie" Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [28], namely: I do not think, however, that the Act requires decisions of native title groups to be scrutinised in an overly technical or pedantic way. Unless a practical approach is adopted to such questions the ability of indigenous groups to pursue their entitlements under the Act will be severely compromised. 19 In the particular circumstances of this proceeding, there is no sufficient reason to doubt that his Honour's exercise of discretion was open to him on the basis of the challenges that the former applicant sought to raise. We are not persuaded to grant leave on the discretion issue.

Other issues 20 The replacement applicant sought to argue that the former applicant had no legal status to challenge his Honour's decision. It is not necessary to decide this question, but it would be odd if the displaced former applicant could not challenge, on proper grounds, the process by which it had come to be replaced. On the other hand, the Act does not give any vested interest, other than that of being a member of the claim group, to those who compose, from time to time, an applicant authorised under ss 66B and 251B to be the applicant.

Conclusion 21 For these reasons, we are of opinion that leave to appeal should be refused. In accordance with s 85A of the Act, there will be no order as to costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, McKerracher and Robertson.

SCHEDULE OF PARTIES NSD 2270 of 2017 Applicants Second Applicant: MAUREEN MARGARET SULTER Third Applicant: CLIFFORD TOOMEY Fourth Applicant: LYALL MUNRO JNR Fifth Applicant: MADELINE MCGRADY Sixth Applicant: LESLIE WOODBRIDGE Seventh Applicant: MICHAEL ANDERSON Eighth Applicant: ALFRED PRIESTLEY Ninth Applicant: GREG GRIFFITHS Tenth Applicant: SUSAN SMITH Eleventh Applicant: RICHARD GREEN Twelfth Applicant: ELAINE BINGE Thirteenth Applicant: BOB WEATHERALL Fourteenth Applicant: ANTHONY MUNRO Respondents Second Respondent: JASON WILSON; LESLIE DUNCAN; MARCUS WATERS; MALCOLM TALBOT; BARRY FRENCH; GARRY BINGE; RAYMOND WEATHERALL; STEVEN TALBOTT; DONALD CRAIGIE; DENNIS GRIFFEN; JENNIFER BENNETT; SHERYL BARNES; ROSLYN NEAN; SHARON PORTER; EMILY ROBERTS; FAY TWIDALE; TANIA MATTHEWS; NATASHA TALBOTT; MARIA CUTMORE Third Respondent: COMMONWEALTH OF AUSTRALIA Fourth Respondent: COONAMBLE SHIRE COUNCIL Fifth Respondent: GUNNEDAH SHIRE COUNCIL Sixth Respondent: GUYRA SHIRE COUNCIL Seventh Respondent: GWYDIR SHIRE COUNCIL Eighth Respondent: INVERELL SHIRE COUNCIL Ninth Respondent: LIVERPOOL PLAINS SHIRE COUNCIL Tenth Respondent: MID-WESTERN REGIONAL COUNCIL Eleventh Respondent: MOREE PLAINS SHIRE COUNCIL Twelfth Respondent: MUSWELLBROOK SHIRE COUNCIL Thirteenth Respondent: NARRABBI SHIRE COUNCIL Fourteenth Respondent: TAMWORTH REGIONAL COUNCIL Fifteenth Respondent: UPPER HUNTER SHIRE COUNCIL Sixteenth Respondent: WALCHA COUNCIL Seventeenth Respondent: WALGETT SHIRE COUNCIL Eighteenth Respondent: WARRUMBUNGLE SHIRE COUNCIL Nineteenth Respondent: MOREE LOCAL ABORIGINAL LAND COUNCIL Twentieth Respondent: NEW SOUTH WALES ABORIGINAL LAND COUNCIL Twenty-First Respondent: NTSCORP Twenty-Second Respondent: RHONDA SANDOW; ROGER KNOX; VERONICA JARRETT; CYRIL LOGAN; RUSSELL DOCTOR & ELAINE GEORGETOWN Twenty-Third Respondent: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER OF THE PLAINS CLANS OF THE WONNARUA PEOPLE Twenty-Fourth Respondent: ALTOMONTE HOLDINGS PTY LTD Twenty-Fifth Respondent: AUBREY ROBERT MILLS & KAY DENISE MILLS Twenty-Sixth Respondent: AUSCOTT LIMITED Twenty-Seventh Respondent: BAKES IRRIGATORS ASSOCIATION INC Twenty-Eighth Respondent: TIMOTHY MAXWELL BALE Twenty-Ninth Respondent: BERWICKS NOMINEES PTY LTD Thirtieth Respondent: BREEZA COMMON TRUST Thirty-First Respondent: BRYAN SIMMOND PIPER & GRETA MAY PIPER Thirty-Second Respondent: LAURENCE ALBERT CAMPBELL Thirty-Third Respondent: EDWINA JANE CAMPION Thirty-Fourth Respondent: CANALTA FARMS PTY LIMITED Thirty-Fifth Respondent: CORISH FARMS PTY LIMITED Thirty-Sixth Respondent: PETER JAMES CORISH Thirty-Seventh Respondent: COTTON PICKING WATER SYNDICATE Thirty-Eighth Respondent: CHRISTOPHER BRUCE CROCKETT Thirty-Ninth Respondent: CROFT EARTHMOVING PTY LTD Fortieth Respondent: JANE MARY DALY Forty-First Respondent: DANNY WILLIAM HUGHES & JEANNE ELIZABETH HUGHES Forty-Second Respondent: DAVID WILLIAM WICKS & VERONICA KAY WICKS Forty-Third Respondent: ANTHONY LLOYD DUNN Forty-Fourth Respondent: DONALD JAMES EATHER Forty-Fifth Respondent: RICHARD LUCAS ESTENS Forty-Sixth Respondent: FAIRBANK LANDS Forty-Seventh Respondent: GARY PHILLIP CZISZ & MAREE RUTH CZISZ Forty-Eighth Respondent: GEOFFREY ERNEST WALTON & CHRISTINE DAWN WALTON Forty-Ninth Respondent: GEORG ULRICH WILHELM LAYHER & PHILIPP WILHELM LAYHER Fiftieth Respondent: GLOBAL AG PROPERTIES AUSTRALIA PTY LTD Fifty-First Respondent: GORDON HEGARTY; CAROLINE HEGARTY & ANDREW HEGARTY Fifty-Second Respondent: GRAIN PRODUCTS AUSTRALIA PTY LTD Fifty-Third Respondent: GRAINCORP OPERATIONS LTD Fifty-Fourth Respondent: ROBERT NEIL GROTH Fifty-Fifth Respondent: ADRIAN SIMON HAMPTON Fifty-Sixth Respondent: ALISON HOLDING Fifty-Seventh Respondent: SHEENA HORN Fifty-Eighth Respondent: IAI AUSTRALIA PTY LTD Fifty-Ninth Respondent: ANTHONY SIMON IRWIN Sixtieth Respondent: JAMES VICTOR HOLLOW & CAROLINE MARY HOLLOW Sixty-First Respondent: JOHN BRADLEY COULTON & KERRY JANINE COULTON Sixty-Second Respondent: JONATHON NOEL PHELPS & WENDY SUSAN PHELPS Sixty-Third Respondent: KENNETH DANIEL MALONE & JULIANNE PATRICIA MALONE Sixty-Fourth Respondent: KEVIN ERNEST O'ROURKE & ROSEMARY ANNE O'ROURKE Sixty-Fifth Respondent: KEVIN MAXWELL KILBY AND JENNIFER MARY KILBY Sixty-Sixth Respondent: LAHJAS PTY LTD Sixty-Seventh Respondent: GWENETH LYNETTE LAMBKIN Sixty-Eighth Respondent: KEITH WILLIAM LAMBKIN Sixty-Ninth Respondent: LAURELLA MOREE PTY LIMITED Seventieth Respondent: PHILIP JOHN LEDINGHAM Seventy-First Respondent: LIMTHONO PTY LTD & PRIME GRAIN PTY LTD Seventy-Second Respondent: GEOFFREY ERIC LOCKE Seventy-Third Respondent: MACINTYRE IRRIGATION ASSOCIATION SOUTH DRAIN Seventy-Fourth Respondent: JANETTA BARBARA MATCHETT Seventy-Fifth Respondent: MAURICE & CHRISTINE HILLIER Seventy-Sixth Respondent: WALLACE RAYMOND MCFARLAND Seventy-Seventh Respondent: MARK MCLACHLAN Seventy-Eighth Respondent: DALE WARREN MEGLI Seventy-Ninth Respondent: NIGEL WILLIAM MELBOURNE Eightieth Respondent: MICHAEL SHANE MURRAY & SUZANNE VICTORIA MURRAY Eighty-First Respondent: MUNGINDI BORDER RIFLE CLUB Eighty-Second Respondent: GUSTAVUS AIRD MURRAY Eighty-Third Respondent: N.W. KENNEDY HOLDINGS PTY LTD Eighty-Fourth Respondent: NALARO PTY LTD Eighty-Fifth Respondent: NARRATIGAH PTY LIMITED Eighty-Sixth Respondent: NEIL MCCHEYNE ANDERSON & JENNIFER MERCIANA ELIZABETH ANDERSON Eighty-Seventh Respondent: STEPHEN JAMES NEWLING Eighty-Eighth Respondent: NUNDLE COMMON TRUST Eighty-Ninth Respondent: MALCOLM JOHN PARRY Ninetieth Respondent: PAUL RAMSAY AGRIBUSINESS PTY LTD Ninety-First Respondent: PETER LAWRENCE PERRY Ninety-Second Respondent: PETER BRUCE BALDO & RACHEL LYNNE BALDO Ninety-Third Respondent: PETER WILLIAM TURNER & CHERIE JOY TURNER Ninety-Fourth Respondent: DAVID EVAN PHELPS Ninety-Fifth Respondent: PHILIP CLIVE NORRIE & PATRICIA ANNE NORRIE Ninety-Sixth Respondent: DEAN PHILLIPS Ninety-Seventh Respondent: TIMOTHY COLIN POLLARD Ninety-Eighth Respondent: R.E. INGALL PTY LTD Ninety-Ninth Respondent: RAMSAY PASTORAL PTY LTD One Hundredth Respondent: WALTER RICHARD DARCY REARDON One Hundred and First Respondent: RICHARD AUSTEN & YVONNE PATRICIA AUSTEN One Hundred and Second Respondent: ROBERT JAMES YOUNG & JASON ANDREW YOUNG One Hundred and Third Respondent: ROBERT WILLIAM HARRIS & JOYCE AILEEN HARRIS One Hundred and Fourth Respondent: WILLIAM DONALD ROBINSON One Hundred and Fifth Respondent: ROCKWOOD HOLDINGS PTY LTD One Hundred and Sixth Respondent: DAVID KENNETH SCHOUTEN One Hundred and Seventh Respondent: SONICA PTY LTD ALSO TRADING FOR ROSLYN UNIT TRUST One Hundred and Eighth Respondent: STEPHEN R CROWLEY & THERESE A CROWLEY One Hundred and Ninth Respondent: SAMUEL STEPHENS One Hundred and Tenth Respondent: SUNNYSIDE (MOREE) PTY LIMITED One Hundred and Eleventh Respondent: THE CUAN PASTORAL COMPANY PTY LTD One Hundred and Twelfth Respondent: TOM ARNOTT PTY LTD One Hundred and Thirteenth Respondent: IAN ROBERT TURNBULL One Hundred and Fourteenth Respondent: ANASTASIS VARITIMOS One Hundred and Fifteenth Respondent: WARIALDA SHOWGROUND TRUST One Hundred and Sixteenth Respondent: WAYNE JOHN EVANS & SHELLEY LEE EVANS One Hundred and Seventeenth Respondent: WILLIAM NELSON BAKER & MARGARET ELLEN BAKER One Hundred and Eighteenth Respondent: MARK ALAN WINTER One Hundred and Nineteenth Respondent: RICHARD SAMUEL WITHERS One Hundred and Twentieth Respondent: GEORGE JAMES WOODHAM One Hundred and Twenty-First Respondent: YARRAL COTTON CO PTY LTD One Hundred and Twenty-Second Respondent: YARRAL EAST PTY LTD One Hundred and Twenty-Third Respondent: AGL UPSTREAM INVESTMENTS PTY LIMITED One Hundred and Twenty-Fourth Respondent: ANGLO COAL (DARTBROOK) PTY LTD ACN 001 012 813 One Hundred and Twenty-Fifth Respondent: ASTON COAL 2 PTY LTD ACN 139 472 567 One Hundred and Twenty-Sixth Respondent: BICKHAM COAL COMPANY PTY LIMITED One Hundred and Twenty-Seventh Respondent: BOGGABRI COAL PTY LTD ACN 001 787 711 One Hundred and Twenty-Eighth Respondent: COAL & ALLIED OPERATIONS PTY LTD One Hundred and Twenty-Ninth Respondent: COAL MINES AUSTRALIA PTY LTD One Hundred and Thirtieth Respondent: CURLEWIS COAL & COKE PTY LIMITED One Hundred and Thirty-First Respondent: GOONBRI COAL COMPANY PTY LIMITED One Hundred and Thirty-Second Respondent: MANGOOLA COAL OPERATIONS PTY LTD One Hundred and Thirty-Third Respondent: MUSWELLBROOK COAL COMPANY LTD One Hundred and Thirty-Fourth Respondent: SANTOS QNT PTY LTD; EASTERN ENERGY AUSTRALIA PTY LTD; EASTERN STAR GAS LTD; HILLGROVE ENERGY PTY LTD; NARRABRI POWER PTY LTD; SANTOS WILGA PARK PTY LTD; BETEL GAS PTY LTD; EASTERN STAR OPERATIONS (COLLECTIVELY KNOWN AS THE SANTOS RESPONDENT) One Hundred and Thirty-Fifth Respondent: ULAN COAL MINES LTD (ACN 000 189 248) One Hundred and Thirty-Sixth Respondent: JEFFREY COLIN CAMERON One Hundred and Thirty-Seventh Respondent: JUAN CONEJO & TERESA CONEJO One Hundred and Thirty-Eighth Respondent: KAYTAN INVESTMENTS PTY LTD One Hundred and Thirty-Ninth Respondent: AURALEE MAUREEN LILLYMAN & LILLYMAN PASTORAL CO. One Hundred and Fortieth Respondent: THELMA MARGARET PHELPS One Hundred and Forty-First Respondent: TUNDUNNA PTY LIMITED One Hundred and Forty-Second Respondent: KEITH JAMES BELL One Hundred and Forty-Third Respondent: TELSTRA CORPORATION LIMITED One Hundred and Forty-Fourth Respondent: ESSENTIAL ENERGY One Hundred and Forty-Fifth Respondent: TRANSGRID One Hundred and Forty-Sixth Respondent: COPETON WATERS STATE PARK TRUST One Hundred and Forty-Seventh Respondent: CENTRAL NORTH LIVESTOCK HEALTH AND PEST AUTHORITY One Hundred and Forty-Eighth Respondent: CENTRAL WEST LIVESTOCK HEALTH AND PEST AUTHORITY One Hundred and Forty-Ninth Respondent: MID COAST LIVESTOCK HEALTH AND PEST AUTHORITY One Hundred and Fiftieth Respondent: NEW ENGLAND LIVESTOCK HEALTH AND PEST AUTHORITY One Hundred and Fifty-First Respondent: NORTH WEST LIVESTOCK HEALTH AND PEST AUTHORITY One Hundred and Fifty-Second Respondent: WALGETT RSL MEMORIAL CLUB LTD