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].