Mangarrayi Aboriginal Land Trust v Banibi Pty Ltd

REASONS FOR JUDGMENT 1 This action commenced on 22 September 2010. It progressed quickly as there were issues which were required to be resolved urgently. It was set down for hearing on 15 November 2010. 2 It resolved shortly before the hearing. The respondent consented to the three primary orders sought by the applicants. Orders broadly in the terms of the first three paragraphs of the application were made on 15 November 2010. 3 The question of costs, including reserved costs, was not resolved. These reasons deal with that issue. The parties have agreed that the costs issue will be determined on the basis of written submissions.

BACKGROUND 4 The Mangarrayi Aboriginal Land Trust (the Land Trust) is established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). Under the Land Rights Act, it was granted the land known as Elsey Station on 2 February 2000. The Northern Land Council (the Land Council) is a land council established under the Land Rights Act. It has, inter alia, the roles and responsibilities of a land council under the Land Rights Act. Banibi Pty Limited (Banibi) is a company whose shares are held by Mangarrayi Aboriginal Corporation (the Corporation). The Corporation is apparently formed by the Aboriginal persons on or in the vicinity of Elsey Station. Reference is also made in the pleadings to the traditional Aboriginal owners of Elsey Station. 5 A Pastoral Land Use Agreement (the Agreement), apparently duly executed, between the Land Trust, the Land Council and Banibi was made on 3 December 2004. The agreement was varied by Deeds of 6 February 2006 and 13 November 2008. Under the Agreement, Banibi was licensed to occupy and use Elsey Station on the terms and conditions of the Agreement. The 2008 Deed is apparently executed by two directors of Banibi, the Land Trust, and the Land Council. It also contains a Direction of the Land Council, having satisfied itself of the requirements of s 19(5) of the Land Rights Act, to the Land Trust to execute the Agreement, and an authorisation apparently signed by three members of the Land Trust authorising its Common Seal to be placed on the Agreement. 6 In early 2010, Banibi and the Land Council exchanged correspondence. That correspondence included a letter from Banibi of 2 February 2010 by which it informed the Land Council (as agent of the Land Trust) that it regarded the Agreement as void and not binding upon it. Banibi was presumably referring to the Agreement as varied by the two Deeds, and in particular the 2008 Deed. It also said the Agreement made on 3 December 2004 then remained in force. On its terms, the 2004 version of the Agreement expired on 22 February 2010. Nevertheless, Banibi continues to occupy Elsey Station. 7 After further correspondence, on 27 May 2010 the Land Council, on behalf of the Land Trust, gave notice of termination of the Agreement. It did so because, it said, Banibi had repudiated the Agreement, and it accepted that repudiation. It also relied on the failure of Banibi to comply with a request under the Agreement for access to Banibi's audited financial accounts for 2008-2009. Banibi however did not accept that it should no longer occupy Elsey Station. There was a potential stalemate. 8 That ultimately led to this action to resolve the stalemate. The application by the Land Trust and the Land Council sought orders for possession of Elsey Station as against Banibi and consequential orders, and was accompanied by an apparently straightforward statement of claim. Particulars of the statement of claim were requested and provided. Banibi filed its defence on 22 October 2010. That defence introduced further interested groups or entities into the picture; the traditional Aboriginal owners of Elsey Station, and the Corporation. It also made various allegations relating to the Land Council's conduct and claims for relief. 9 On 1 November 2010 a notice of motion was brought by Banibi seeking an order removing the Land Trust as an applicant and replacing it as the second respondent (the First Motion). On 3 November 2010 I refused the First Motion as it was not supported by proper evidence and I was of the view that the status of the Land Trust was not an impediment to any party's access to evidence, or to the progress of the proceeding with the present parties: see Mangarrayi Aboriginal Land Trust v Banibi Pty Ltd [2010] FCA 1195 at [9]. 10 The First Motion also sought orders for leave to Banibi to amend its defence. On 3 November 2010 I gave Banibi that leave. However, as there were a number of issues relating to the adequacy of the defence, the leave was subject to Banibi providing proper particulars of certain paragraphs of its defence, and certain paragraphs of the proposed amended defence which contained wide allegations of duress and undue influence and claiming damages for breach of statutory duties, negligence and in tort for unspecified or only generally specified conduct of the Land Council, and for equitable relief. Leave was given to Banibi to file a cross-claim or a supplementary amended defence properly pleading the general matters raised: Mangarrayi Aboriginal Land Trust v Banibi Pty Ltd [2010] FCA 1195 at [28]. The costs of the First Motion were reserved. 11 An amended defence was filed on 5 November 2010. No cross-claim or supplementary amended defence was filed. 12 A further notice of motion of 9 November 2010 was brought by Banibi and heard by Reeves J on 10 November 2010 (the Second Motion). The Second Motion applied again to have the Land Trust removed as the first applicant and replaced as the second respondent. Reeves J refused the Second Motion. He was not persuaded that Banibi was entitled to such an order. The Second Motion also sought orders for representatives of the Mangarrayi and Yangman people to be joined as the third respondents. That order was also refused as his Honour did not consider there was any basis shown that such persons had a sufficient interest to be joined, unless they or Banibi made some cross-claim in the action. 13 The Second Motion also sought an order for the action to be stayed to allow for proper preparation for hearing, time for discovery and to enable the pursuit of other options for resolution. Reeves J was of the view that the matters of urgency which caused the hearing to be set down quickly still applied and that a mediation had already been conducted and was unsuccessful. The applicants assured his Honour that all relevant documents had been produced. Reeves J also extended the time for Banibi to file and serve any affidavit or précis of any affidavit it intended to rely on at the hearing and consequential orders to allow Banibi more time to prepare. The costs of the Second Motion were reserved. 14 Affidavits and submissions were duly filed by the applicants. Banibi did not file any further affidavits or précis of affidavits, save for one supplementary affidavit of M Gorringe filed 15 November 2010. 15 As noted above, before the hearing commenced, on 15 November 2010 I made orders by consent chiefly in the terms of the first three paragraphs of the application. In summary, I ordered that: (1) As against Banibi, the Land Trust is entitled to possession of the land known as Elsey Station; (2) Banibi, by itself and by its servants and agents, is to give the Land Trust possession of the land known as Elsey Station; (3) Banibi, by itself and by its servants or agents is restrained from remaining on or continuing in occupation of the land known as Elsey Station; 16 I also ordered that those orders not be entered until or after noon 26 November 2010, and that Banibi could apply, in relation to the management of and accounting for a herd of cattle on Elsey Station which it owned (the Banibi Herd), upon reasonable notice. It was accepted by the parties that orders 1 to 3 did not require Banibi to cause the removal of the Banibi Herd from Elsey Station by 26 November 2010. The purpose of that extra time was so that issues relating to the mustering and relocation of the Banibi Herd, particularly having regard to the imminent wet season, could be addressed between the parties. 17 That is the context in which the issue as to costs arises. There has been no adjudication on the merits of the claim, but on its face Banibi appears to have accepted that it can no longer remain on Elsey Station under the terms of the Agreement in the events which are alleged to have happened.