Whether meeting degenerated into chaos and whether Mr Bergmann was not independent
142 The Current Applicant submits that order was not maintained and the meeting was allowed to degenerate into chaos. They submit that Mr Bergmann failed to keep control of the meeting and that "the true will of the people wasn't able to permeate through the meeting". The Current Applicant also complains that the meeting itself was invalid, or at least rendered unreliable and unsafe, because there were insufficient NTSCORP staff available, and that security staff were sought by the Current Applicant but were not provided.
143 Ms Binge deposes that on Day 2, a group of 94 or more people walked out of the meeting. That group, of which Ms Binge was part, was generally supportive of the Current Applicant. She states that the group walked out because they were not being allowed to speak, and if they spoke they were shut down. She says they were not getting a fair hearing and there was no point in staying.
144 Mr Munro deposes that at the 2016 Authorisation Meeting, people were shouting at each other, shouting over each other, swearing at each other and making serious allegations without permitting any response.
145 Mr Priestly states that Mr Bergmann failed to conduct the meeting in a fair and proper manner. He says the meeting was very rowdy and Mr Bergmann permitted people to engage in shouting, yelling, swearing and abusive behaviour without once being cautioned or given a warning. On occasions, people trying to speak were subjected to sustained shouting, drowning them out to the point where they gave up trying to speak. On other occasions microphones were turned off.
146 Mr Priestly observed NTSCORP staff passing round microphones to persons who wished to speak. On most occasions Mr Bergmann would decide who the microphone would be passed to by pointing to the person or nodding at them. Mr Priestly says that more often than not a person who was opposed to the Current Applicant was permitted to speak, rather than any other person. He says that this, combined with the shouting that drowned people out, meant that some people who wanted to speak in favour of the Current Applicant did not get a chance to speak.
147 Mr Bergmann resides in Broome, Western Australia, and is admitted as a barrister and solicitor. He was engaged by NTSCORP to act as the facilitator of the 2016 Authorisation Meeting. His role involved chairing the meeting, reading the group's proposed resolutions and coordinating the counting of votes. Mr Bergmann and Dr Prichard, who was engaged as an independent legal advisor, prepared their joint report following the meeting. That report, amongst other things, sets out the resolutions that were carried.
148 In response to Mr Priestly's allegation that Mr Bergmann favoured those opposed to the Current Applicant when distributing microphones during the meeting, Mr Bergmann said that he had not met any of the members of the claim group previously, and was not in a position to assess whether an individual was sympathetic to the Current Applicant or not. He said that he instructed the staff of NTSCORP to distribute the microphones based on the order in which meeting attendees raised their hands to indicate that they wanted to speak. He expressed the opinion that all those attendees who wanted to say something at the meeting were given an opportunity to speak.
149 Under cross-examination, Mr Bergmann acknowledged that the meeting was very difficult to run and that it was challenging to keep order. He said that people were emotional. It was suggested that Mr Bergmann was not independent, and conducted the meeting in a manner designed to assist NTSCORP with assistance to remain or become the lawyers for the claim group and to assist those opposed to the Current Applicant. He was taken to comments he had made during the meeting, as well as conduct such as allowing a barrister engaged by NTSCORP to speak and allowing a number of motions to be put after someone at the meeting had made a comment about proceeding quickly because a bus of the Current Applicants' supporters was on the way. There were a number of other questions directed to issues of Mr Bergmann's independence. Mr Bergmann maintained that he had acted independently and conducted the meeting in an impartial way.
150 Having observed Mr Bergmann giving evidence and the video recording, I have no doubt that he was an honest and reliable witness. I accept his evidence. I consider that he acted independently and impartially in the way that he conducted the meeting. It was, as Mr Bergmann accepted, a challenging meeting to run. Mr Bergmann had to balance the task of keeping order with avoiding inflaming people's emotions while doing so. In my opinion, he acted fairly.
151 Dr Prichard provided an affidavit. She was not required for cross-examination. She drafted the resolutions that were put to the meeting and provided independent legal advice in relation to questions from the claim group, as well as assisting Mr Bergmann to coordinate the counting of votes. I accept that she, like Mr Bergmann, acted independently and impartially in her role at the meeting.
152 My further observations upon watching the video tape of the meeting and reading the agreed transcript are as follows.
153 I agree with Mr Priestly's description that the large majority of the people at the meeting were divided into two groups, namely those sympathetic to the Current Applicant and those opposed to the Current Applicant. There were also some people who appeared to be in neither camp.
154 It is evident that emotions ran high at the meeting. Many people were angry. There was swearing and verbal abuse of others at times. People talked over each other at times. Speakers were heckled. The mood was angry at times and the atmosphere was generally unpleasant.
155 On Day 1, the members of the Current Applicant were invited to address the meeting. Michael Anderson took up that opportunity. He was interrupted and heckled at times. Mr Bergmann intervened a number of times to encourage people to let him have his say. Mr Anderson was able to explain at length, amongst other things, why the Current Applicant was dissatisfied with NTSCORP and had retained a new solicitor and explained their dealings with gas and mining companies. Mr Anderson was asked a number of questions from the floor of the meeting, which he answered. Mr Munro addressed the meeting at some length and was asked a number of questions. Mr Priestly also addressed the meeting. Mr Hegney addressed the meeting and was interrupted and heckled, resulting in a motion being put to the meeting that Mr Hegney not be permitted to attend or speak. That motion was defeated. Dianne Waters addressed the meeting. These were the main speakers supporting the Current Applicant.
156 Ms Rotumah addressed the meeting on Day 1. She responded to a number of the allegations made about NTSCORP's conduct. She was also interrupted and heckled at times, including by Ms Binge.
157 At the commencement of the meeting on Day 2, a motion was proposed that the claim group withdraw their consent and instructions for NTSCORP to have any further involvement with the native title determination application. Mr Munro and Clifford Toomey spoke in favour of the motion. They were interrupted and heckled, but had an adequate opportunity to address the meeting. Mr Duncan, Stephen Talbott, Don Craigie and Marcus Waters spoke against the resolution, and they were also interrupted and heckled. The motion was put to the meeting and defeated by 157 votes to 71, with 7 abstentions (Resolution #3).
158 Shortly after that, Mr Waters is recorded as saying that he had been asked to move a motion now in regard to nominations because the Current Applicant's supporters had "a bus coming for numbers". There were some further speakers addressing the meeting about issues such as intellectual property in records held by NTSCORP and water flows.
159 A motion was put to the effect that the claim group resolve to remove Mr Hegney and engage NTSCORP as its legal representative in relation to the native title application and any future act matters. No one spoke in favour of or against the motion. The resolution was carried with 138 in favour, 5 against and 8 abstentions (Resolution #5).
160 A motion was put to the effect that the claim group remove the Current Applicant. The resolution was carried with 130 in favour, 6 against and 10 abstentions (Resolution #6). The members of the Current Applicant indicated that they did not consent to their removal and that was noted.
161 Mr Bergmann then called a half-hour break. When the meeting recommenced, a number of the members of the Current Applicant and their supporters walked out of the meeting. Mr Bergmann and Dr Prichard then left the room and apparently spoke to those who had walked out. When he returned, Mr Bergmann read out the following statement made by those persons:
The applicant are leaving the meeting because they consider it not valid. Not fair and just, removing the applicants as a group. They don't accept the recording process, the registration process. People shouldn't have been registered, people shouldn't have been able to register today. That there's a lack of respect for the applicant for Sorry Business not buried yet. Auntie Elaine's evidence, Alf, Tony, Clifford not to be given to any new applicant. So they are leaving the member meeting and they are saying "we taking 140 people with us".
162 The meeting then proceeded in the absence of the Current Applicant and their supporters.
163 I do not accept the Current Applicant's submission that the meeting descended into chaos. The issues were emotive and the meeting was certainly not as civil and orderly as desirable. However, Mr Bergmann was able to maintain a reasonable measure of control over the meeting. People on both sides who wished to speak were given a reasonable opportunity to do so. It may be that not everyone who wished to speak had the opportunity to do so, but that can be the position, given the exigencies of time, in even the most civil of meetings. The voting took place in a reasonably orderly manner and the outcome of the voting was readily discernible. The conduct of the meeting must be considered in light of the fact that supporters of both sides were guilty of poor behaviour and the use of unpleasant language. I do not accept the Current Applicant's submission that the meeting descended to such chaos that the outcome failed to reflect the decisions of the claim group as a whole.
164 Ms Binge, Mr Munro and Mr Priestly state that they and their supporters walked out of the meeting because they were not allowed to speak and was shut down and their opponents were shouting, yelling, swearing and engaging in abusive behaviour. In my opinion, it is not the case that they were not allowed to speak. It is true that those speakers supporting the Current Applicant were the subject of heckling, interruption and abuse while they were speaking, but that was equally true of those who spoke against the Current Applicant. The poor conduct was not confined to one side or the other, so, for example, some of the language used by Ms Binge to denigrate her opponents was particularly colourful. I consider that the Current applicant and their supporters had a reasonable opportunity to state their case to the meeting.
165 I note that the statement given to Mr Bergmann following the walkout did not include any complaint about the Current Applicant or the supporters not being allowed to speak or about yelling, swearing and abusive behaviour. The chronology of events makes it much more likely that the Current Applicant and their supporters walked out because the voting had gone against them on Day 2. First, the motion for NTSCORP to have any further involvement with the native title determination application was defeated by 157 votes to 71. Second, the resolution to remove Mr Hegney and engage NTSCORP as the claim group's legal representation was carried with 138 in favour and 5 against. Third, the resolution that the Current Applicant be removed had been carried by 130 votes to 6. The walkout seems to me to have been self-serving in the sense of attempting to create doubt about the validity of the meeting and the resolutions that were carried.
166 The reasons given by Ms Binge, Mr Munro and Mr Priestly for the walkout seem artificial. I do not accept that not being allowed to speak and poor conduct of those at the meeting formed part of the reason for the walkout. I accept that the Current Applicant was disgruntled about issues such as the registration process, but their remedy lay in persuading the claim group to retain them as the applicant, or resisting the application under section s 66B of the Act (as they have done). The solution was not to walk out of the meeting.
167 Neither do I accept the Current Applicant's submission that their treatment at the meeting was such as to cause them to walk out of the meeting, so that the outcome of the meeting did not reflect the decision of the claim group as a whole. It was only necessary that the Current Applicant and their supporters have every reasonable opportunity to attend and participate in the meeting. They were given such an opportunity but elected to remove themselves from the meeting. It was their own conduct that deprived them of the opportunity to seek reappointment as members of the applicant.
168 I cannot see any basis for the Current Applicant's complaint that there should have been twice the number of NTSCORP staff present. In my opinion, the number of staff provided by NTSCORP was adequate. I do not accept the Current Applicants' submission that the meeting was unfair or invalid because security staff were not provided. While there was abusive language, there is no evidence of any assaults or serious threats to physical safety. Ms Binge, Mr Munro and Mr Priestly did not give evidence that any part of the reason for the walkout was that they feared for their safety. Further, police officers were in attendance for the majority of the meeting. I do not accept that the presence of security staff would have made any difference to the conduct or outcome of the meeting.