Foley v Butchulla Aboriginal Corporation RNTBC

(a) any further affidavits, if any, upon which they would rely at the final hearing; and

(b) an outline of submissions of not more than 15 pages.

1. The applicant be given leave to issue a subpoena to the Butchulla Aboriginal Corporation RNTBC (ICN 8107) (BAC) requiring the production of any documents held, including documents held electronically, relating:

(a) to the withdrawal of the sum of $400,000 from the Butchulla People's Native Title Trust Account with the Bank of Queensland, account number 2263 2586, on or about 26 September 2025; or

(b) to any entitlement which BAC claims to have to be indemnified out of that $400,000 for any costs, expenses, loss or liability incurred by it in relation to the operation and administration of any trust upon which the funds in that account are held.

1. Any such subpoena be returned on 25 November 2025.
2. Any party who has filed a notice of acting have leave to inspect and copy documents produced pursuant to that subpoena.
3. Providing the respondents file a notice of acting by not later than 1 December 2025, the proceeding be referred to mediation by a registrar.
4. As to any such mediation:

(a) it must be conducted by the attendance in person by a party or as to a corporate party, by a person authorised to bind the corporate party, with legal representation permitted;

(b) the mediation be conducted on a date and at a place fixed by the registrar but unless the registrar as a matter of deliberate discretionary decision decides to adjourn it, the mediation must be completed by 24 December 2025;

(c) subject to any waiver of the fee having regard to the origin of the proceeding in native title determinations the court fee in respect of the mediation be borne in the first instance by the applicants and be the applicants' costs in the proceedings;

(d) the parties must comply with all reasonable directions of the registrar made for the purposes of the mediation;

(e) not later than 5 business days prior to the mediation the respondent must file and serve:

(i) any affidavits upon which they would seek to rely at the final hearing; and

(ii) an outline of submissions of not more than 15 pages.

(f) upon completion of the mediation, the registrar must file a certificate certifying whether the proceeding has or has not compromised at mediation.

1. For the purposes of the proceedings the applicants may in lieu of personal service on the second and third respondents serve documents upon those respondents by sending those documents to each of the following email addresses:

(a) a. chris.royan@bac-kgari.org;

(b) b. conway.burns@bac-kgari.org; and

(c) c. admin@bac-kgari.org.

1. In the event that the registrar does not certify that the proceeding has compromised the hearing occur on a date to be fixed by the docket judge after consultation with the parties who have filed a notice of acting.
2. Liberty to apply.
3. Save aforesaid, costs reserved.

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

1. These reasons for judgment must be read in conjunction with earlier reasons for judgment given respectively, by Horan J (see Foley v Butchulla Aboriginal Corporation RNTBC [2025] FCA 1270) and me (see Foley v Butchulla Aboriginal Corporation RNTBC (No 2) [2025] FCA 1362) in respect of the granting and continuance of interlocutory injunctions. When the proceeding was called on this afternoon, there was no appearance by or on behalf of any respondent. Only the applicants by their counsel appeared. However, as what has become exhibit "1" records, the natural person respondents, the second and third respondents, Christine Royan and Conway Burns, are most definitely aware of the proceedings, that awareness being evidenced by an email communication made by them to the court. In that communication, the applicant and those respondents, and I do not doubt also the first respondent, seek to have the benefit of mediation, with legal representation for the first respondent funded by Queensland South Native Title Service. I was informed this afternoon by senior counsel for the applicants that Queensland South Native Title Services has the subject of representation for the first respondent under active consideration and, and while no final decision made, is at least favourably disposed to funding such representation.
2. It is difficult on the evidence to hand to see how the second and third respondents could have any interest separate to that of the first respondent. It is overwhelmingly desirable, given that this proceeding relates to a managerial sequel to native title determinations made by the court, that if at all possible it becomes the subject of consensual resolution.
3. I do not doubt that the provision of legal advice to the respondents would assist in such resolution. It is not, of course, for me to make that decision, but the decision is one which needs to be made soon.
4. I am acutely conscious that the first respondent has particular managerial responsibilities, and trust responsibilities, which are the subject of intrusion by the interlocutory injunctions granted, but I am also acutely conscious that the applicants have shown and continue to show that there exists a serious question to be tried and a balance of convenience which favour not just the earlier granting, but the continuance until hearing, of interlocutory injunctions in the form already granted. The applicants have given a further usual undertaking as to damages.
5. It is also overwhelmingly desirable that any such mediation be conducted this year. The directions that I have made this afternoon are directed to that end. I have deliberately not, in making those directions, specified that the registrar allocated to conduct the mediation be one of the court's native title registrars. That subject I leave to the good sense and judgment of those within the court's registry charged with the allocation of registrars to mediations. Although the case has its origins in native title determinations, it concerns a managerial sequel to those determinations.
6. That said, because the case touches upon the rights and interests of those who have been determined by the court to hold native title interests, it is overwhelmingly desirable that such funds as might flow as a sequel to those determinations be extended for their welfare and benefit rather than on legal and accounting fees if that can be avoided.
7. I have deliberately cast the order referring the case to mediation in a conditional way, conditional upon the filing of notice of acting by the respective respondents. In the event that no such notice is filed, then the directions made today will see the case proceed to a final hearing.
8. I am persuaded, having regard to the email exchange which is exhibit "1", and particularly the likely costs and expense of personal service having regard to the residents outside Brisbane of the second and third respondents and their awareness, as exhibit 1 attests, that it is inherently likely that documents served by email will come to their attention and that it is preferable that that mode of service be used rather than the expense of personal service. I am further persuaded that it is in the interests of justice that a subpoena issue which would see the second respondent producing documents to the court prior to the mediation which relate to indemnification of what are said to be expenses incurred under the trustee in question.
9. For these reasons, I make the orders directed to the continuance of the interlocutory injunctions and the progression of the case to mediation or, as the case may be, final hearing.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.