Foley v Butchulla Aboriginal Corporation RNTBC

1. As soon as is practicable, the applicants shall serve on each of the respondents copies of this order and, to the extent that they have not already done so, copies of the application and the affidavits in support of the application.
2. As soon as is practicable, the applicants shall notify and provide a copy of this order to the Bank of Queensland.
3. The proceeding be listed for hearing at 9:30 am AEST in Brisbane, with appearances in person, on Tuesday 18 November 2025.
4. Costs be reserved.

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

1. The present interlocutory application illustrates that for all of the satisfaction which a determination under the Native Title Act 1993 (Cth) (Native Title Act) may give to those found to be holders of native title at common law, such a determination is an end of a beginning, not an end in itself. By that, I mean that the bundle of rights represented by the holding of native title at common law must be managed by or on behalf of and for the benefit of those determined to be the holders of that bundle of rights into the indefinite future.
2. Last week, in circumstances of demonstrated urgency and for reasons set out in his Honour's judgment in Foley v Butchulla Aboriginal Corporation RNTBC [2025] FCA 1270 (Horan J's interlocutory judgment). Horan J made the following orders:
   1. Upon the applicants giving the Court the usual undertaking as to damages, the respondents are restrained until 4.00 pm on 24 October 2025, or further order, from:
      1. making any payments, transfers or withdrawals from the first respondent's working account with the Bank of Queensland, account number 022262791, which would reduce the balance of the funds held in that account to less than $400,000; and
      2. making any payments, transfers or withdrawals from the Butchulla People's Native Title trust account with the Bank of Queensland, account number 22632586.
   2. As soon as is practicable, the applicants shall serve on each of the respondents copies of this order and, to the extent that they have not already done so, copies of the application and the affidavits in support of the application.
   3. As soon as is practicable, the applicants shall notify and provide a copy of this order to the Bank of Queensland.

1. As can be seen, those restrictions expire today. The applicants have today sought a continuation of those interlocutory injunctions.
2. For that purpose, each has, by their counsel, again given the usual undertaking as to damages.
3. The background to the application for interlocutory injunctive relief and the substantive originating application is summarised in Horan J's interlocutory judgment. The orders made by his Honour have been served on the respondents. However, and unfortunately, there has been no appearance today by or on behalf of any of the respondents. The Indigenous Australians, who may conveniently be termed the Butchulla people, have the benefit of two determinations of native title within what is under the Native Title Act, the southern and western Queensland region: see De Satge on behalf of the Butchulla People # 2 v State of Queensland [2014] FCA 1132 (De Satge determination), and Cronin on behalf of the Butchulla People (land & sea claim #2) v State of Queensland [2019] FCA 2082. These determinations were made respectively on 24 October 2014 and 13 December 2019. The first respondent, Butchulla Aboriginal Corporation (BAC), is the Registered Native Title Body Corporate (RNTBC) for the purposes of s 57(2) of the Native Title Act in the De Satge determination.
4. The second and third respondents are directors of BAC and are signatories to two bank accounts. The first named applicant, Dr Fiona Foley, is also a director of BAC. Under the De Satge determination, BAC has, pursuant to s 57 of the Native Title Act, functions given to it as a "RNTBC".
5. Pursuant to regulations made under that Act, it also, even though it is given an agency role under s 57 of the Act, may, pursuant to reg 58(c) at the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (Regulations):

...hold on trust, or perform functions in relation, to compensation under the Act.

1. Also relevant is reg 7 of the Regulations which, amongst other things, permits a RNTBC that is, as is BAC, an agent prescribed body corporate in relation to native title rights and interests of common law holders:

(c) ...to hold in trust money connected with the native title rights and interests (including payments received as compensation or otherwise related to those rights and interests).

1. In between when the two native title determinations were made, and for reasons which doubtless seemed good at the time, BAC also became the trustee of a charitable trust, termed the Butchulla People's Native Title Charitable Trust, pursuant to a deed of trust dated 14 August 2017. Put shortly, the charitable objects and purposes of that trust relate to the advancement and welfare of the Butchulla People, who are defined in clause 2 of the trust by reference to the De Satge determination.
2. Other background facts are recited by Horan J in his judgment at [18] to [30]. These I adopt, without repeating, because they are, in my view, revealed on the evidence.
3. What is not revealed is why it is that a separate RNTBC, namely the Butchulla Native Title Corporation, RNTBC, not BAC, was the RNTBC for the purposes of the Cronin determination.
4. The Registrar of Aboriginal and Torres Strait Islander Corporations has taken an interest in the affairs of BAC.
5. The Registrar, via a delegate, has examined its books and the Registrar has, as a sequel, given a notice under s 439-20(1) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). That notice attests to a suspicion by the Registrar's delegate that BAC may be insolvent. In that notice, the Registrar's delegate referred to debts said to be owing by BAC to the Commissioner of Taxation in the amount, as at 31 March 2025, of about $300,000. It is, however, moot, on the whole of the evidence, whether or not payments are being made to or were not being made to the Commissioner, pursuant to a repayment plan agreed to as between the Commissioner and BAC in respect of indebtedness to the Commissioner. It is not clear, on the evidence before me, whether, in forming a suspicion as to insolvency, the Registrar's delegate adverted to the possibility that BAC, in acting as trustee and in incurring an indebtedness to the Commissioner of Taxation, may have a right of indemnity in respect of trust assets represented by accounts with the Bank of Queensland, the subject of earlier interlocutory orders; see as to the existence of a right of indemnity by a trustee, notably Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20; (2019) 268 CLR 524. Here, the position may be complicated by a blending of funds initially received by BAC in its capacity as trustee of the Charitable Trust and later, receipts received by BAC in its capacity as a RNTBC receiving and holding in trust, pursuant to statutory authority, money connected with native title rights and interests. In turn, it is, at present, an open question as to whether the circumstance of a separate RNTBC, under the Cronin determination, gives rise to any separate interest by that body corporate in funds. There are many ways in which questions of native title law, corporate insolvency law and trust law may be, in the present controversy, resolved. Overarchingly, I have a concern that funds received for the advancement of welfare and welfare of the Butchulla people not be dissipated unnecessarily in legal and accounting expenses.
6. It may well be that there is, on analysis, a common foundation in respect of each of the determinations and the trust capacities namely, the welfare of those who, by determination, are the class of indigenous Australians known as the Butchulla people. It is very much in the interests of the first applicant and the respondents, with the assistance of the Queensland South respondent, to try and resolve the present contretemps consensually. So doing may well require the involvement of the body corporate under the Cronin determination.
7. I am persuaded, in the same way as was Horan J, and for like reasons to those given by his Honour in the earlier interlocutory judgment, that there exists a serious question to be tried in relation to the funds in question. I am also persuaded that the balance of convenience favours, at present, a short extension of the interlocutory injunctions earlier granted. There is much to be said in favour of the submission made on behalf of the applicants that during that extended period, an earnest endeavour occur to give particularity as to expenses incurred by BAC, in amount, capacity, and occasion for expenditure to the end of resolving, consensually, the disposition of funds.
8. The alternative may well be more than just the declaratory relief sought. It may be that occasion will be found necessary for the appointment of an administrator in respect of BAC and a receiver in respect of the charitable trust. In turn, that may mean that the Registrar will have to do rather more than just stop at the present examination. All of that, though, lies in a conjectural future. For the present, I am well satisfied that the interlocutory injunctions should be extended.
9. It is desirable that they return again before the same duty judge and, by happy coincidence, it is possible to do that by returning them before me on 18 November 2025 in Brisbane at 9.30 am. I consider that it is desirable, rather than merely making an order which extends the earlier interlocutory injunctive relief, to make orders in like terms, but with the continuance of those orders specified to be until 4 pm AEST on 18 November 2025.
10. I reserve, as did Horan J, questions as to costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.