Melville on behalf of the Pitta Pitta People v State of Queensland [2025] FCA 753 | Case summary

Melville on behalf of the Pitta Pitta People v State of Queensland [2025] FCA 753 | Case summary | Zoe

[31]

In Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883 this Court made a Determination of native title in relation to land and waters around Boulia in western Queensland. The holders of the native title are described in Schedule 2 of the Determination in a way that references nine apical ancestors. I will refer to the living descendants of those ancestors as the Pitta Pitta people.
For the purposes of s 55 and s 56 of the Native Title Act 1993 (Cth) (NT Act), the determined native title is held on trust by the Pitta Pitta Aboriginal Corporation RNTBC ICN 3942, a Registered Native Title Prescribed Body Corporate (Pitta Pitta PBC).
Following the Determination, two actions were commenced under s 50(2) and s 61(1) of NT Act, each claiming compensation against the State of Queensland relating to certain compensable acts affecting native title in the relevant area.
The Melville Application was commenced in October 2020 by Ms Florence Melville, Ms Jean Jacks, Mr Neville Aplin, Mr Noel Doyle and Ms Carmel Belford (together, the Melville Applicant) (QUD 327 of 2020). The Melville Applicant claims to be authorised to bring that application "on behalf of [the] Pitta Pitta people".
The PBC Application was commenced in 2024 by Pitta Pitta PBC (QUD 60 of 2024). The Pitta Pitta PBC has standing to bring a compensation application under s 61(1) of the NT Act.
By a consent order made on 28 May 2024, the Melville Application and the PBC Application were consolidated and continue in this proceeding (Consolidated Proceeding), with the Melville Applicant and Pitta Pitta PBC named as the first and second applicants respectively. The consent orders also provided that for the purpose of the Consolidated Proceeding, the originating application is that application filed by the Melville Applicant. As discussed below, the two applicants remain in dispute about the authorisation of the Melville Applicant to bring the claim, and in connection with the composition of the Board and membership of Pitta Pitta PBC.
Notwithstanding those differences, following a court supervised mediation, the Melville Applicant, Pitta Pitta PBC and the State have reached an "in principle agreement" for the settlement of the Consolidated Proceeding by way of the payment of a sum for all compensable acts. I will refer to that as the Compensation Sum notwithstanding that there is at present no agreement that could form the basis of a consent determination providing for its payment. The in principle agreement sets out the steps the parties propose to take with a view to resolving the issues between the State and the applicants by consent under s 87 of the NT Act.
A meeting of the Pitta Pitta people has been scheduled to take place on 27 July 2025 at which resolutions may be put concerning the in principle agreement (27 July meeting). The proposed resolutions that may be put to the Pitta Pitta people are the subject of ongoing dispute.
The Court has recently become aware of the existence of claims by persons asserting a right to be paid money from the Compensation Sum referable to legal work said to have been done for the Melville Applicant. Two claims are the subject of interlocutory applications filed by non-parties, each asserting the existence of equitable solicitors' liens against the Compensation Sum. The non-party claimants are:

[33]

With the consent of the active parties, each of those entities has been granted leave to intervene for the purposes of having their asserted rights considered and (if appropriate) determined and enforced. Consideration of the claims has been deferred until after the 27 July meeting takes place. The evidence filed in support and opposition to those claims has disclosed the existence of at least two funding agreements that may have been entered into by some of the persons who comprise the Melville Applicant. No funder has to date notified the Court of the existence of a claim. It is common ground that claims against a judgment sum comprising the fruits of litigation may be brought within the same proceeding in which the judgment is awarded: Roam Australia Pty Limited v Telstra Corporation Limited trading as Telecom Australia [1997] FCA 980.
Queensland South Native Title Services Ltd (QSNTS) is the representative body for a region that includes the land and waters to which the Consolidated Proceeding relates: see NT Act, Pt 11. It seeks leave to intervene in the Consolidated Proceeding under r 9.12 of the Federal Court Rules 2011 (Cth). An earlier application by QSNTS to be joined as a party to the Consolidated Proceeding has been withdrawn.
Rule 9.12 provides that a person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including as to costs) as the Court may determine. In deciding whether to grant leave, the Court may have regard to whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding and whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish: Rules, r 9.12(2). The Court may otherwise have regard to any other matter it considers to be relevant.
A grant of leave to intervene may be subject to conditions: Rules, r 1.33. In addition, the Court may specify the form of assistance and the manner of the intervener's participation, including the matters that may be raised and whether submissions on those matters should be oral, in writing or both.
The stated purpose of the proposed intervention by QSNTS is to assist the Court in relation to legal and factual issues that have arisen or that are expected to arise and that may have wider implications for compensation applications under the NT Act more generally. The potential wider implications are said to be relevant to some of the functions and powers conferred on QSNTS under Pt 11 of the NT Act.
By its evidence and materials, QSNTS raises a number of factual matters affecting or potentially affecting the proper administration of justice in this case, related to actual or potential claims on the Compensation Sum arising from cost and funding agreements entered into (or purportedly entered into) on behalf of all or some of the Pitta Pitta people.
QSNTS accepts that a grant of leave to intervene would not bestow upon it the status of a party for the purposes of s 87 of the NT Act such that it would not be a person who could directly prevent the consolidated compensation application from proceeding to a consent determination by withholding its consent. That acceptance accords with legal principles concerning the status of an intervener more generally: Caason Investments Pty Ltd v International Litigation Partners No 3 Ltd [2018] FCAFC 176; (2018) 265 FCR 487, Allsop, Middleton and Perram JJ (at [53]); Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (2025) 308 FCR 153, Lee, Colvin and Stewart JJ (at [82]), approving Forestry Tasmania v Brown (No 2) [2007] FCA 604; (2007) 159 FCR 467, Black CJ.
Notwithstanding the important matters raised by QSNTS, I have concluded that it should not be granted leave to intervene. In so concluding I have had regard to the vexed and complex history of the Consolidated Proceeding and the direct and indirect participation of QSNTS in it to date. I consider it appropriate that I explain my decision by first setting out that history in some detail so that the Pitta Pitta people may be apprised of all of the relevant facts and circumstances upon which the outcome is based. The same facts and circumstances might in due course become relevant when considering alternate procedures directed to the final resolution of the Consolidated Proceeding in a way that maintains confidence in the Court's processes in not only the Pitta Pitta people, but their descendants for generations to come.

[40]

As a regional body, QSNTS may fund the legal representation of parties in native title proceedings. In Burarrwanga v Chief Executive Officer of the National Indigenous Australians Agency [2024] FCA 1476, I described the funding regime as it relates to regional bodies and the National Indigenous Australians Agency (NIAA).
Section 84 of the NT Act identifies which persons are a party to applications to which s 61 applies. Section 84(2) provides that an applicant is party to the proceeding. Section 84(3) has the subheading "Affected persons". It provides that "Another person is a party to the proceedings if" (relevantly) the person is covered by s 66(3)(a)(i) to (vi) and the person notifies this Court in writing that it wants to be a party within a prescribed period. QSNTS is covered by s 66(3)(a)(iii) and so would have been joined as a respondent in its own name and right had it informed the Court that it wanted that status within the prescribed period. However, it did not do so.
The effect of those provisions is that QSNTS is nonetheless a body that could obtain the status of a party without needing to establish any right or interest in the subject matter of the proceeding and without needing to establish that (for example) its contribution to the proceeding would be useful or different. Parliament has evinced an intention that regional bodies should be permitted to participate in a proceeding (and have the status of a party) given the nature of their functions, subject only to the willingness of the body to participate and its notification of that willingness within the prescribed time. I have afforded that context considerable weight, notwithstanding that on the present application QSNTS no longer seeks to be joined as a party. In asking whether it should be permitted to intervene, I am proceeding on the basis that it is not to be regarded as a busybody having a mere intellectual interest in the outcome. As described below, I am satisfied that its desire to intervene is genuinely associated with the performance of its functions, correctly understood.

[52]

Pitta Pitta PBC's appeal from her Honour's judgment was dismissed on 9 August 2022: Pitta Pitta Aboriginal Corporation RNTBC v Melville on behalf of the Pitta Pitta People [2022] FCAFC 154, Jagot, Rangiah and Charlesworth JJ.
Following the appeal, the Melville Application was scheduled to a trial proceeding with two tranches of evidence commencing on 10 July 2023 and 4 December 2023. Those trial dates were vacated for reasons relating to the legal representation of the Melville Applicant. Politely described, the suspension of the practising certificate of Mr Stevenson and the appointment of administrators to ESJ Law caused immense disruption to the progress of the proceeding. That disruption was ongoing when the matter first came into my docket in May 2023.
At a case management hearing on 9 June 2023, the persons comprising the Melville Applicant each appeared as self represented litigants and a dispute had arisen among them as to whether one of them should be removed. At that time, the Court's focus was on retrieving any work product (in the nature of witness statements, affidavits or recordings) so that the matter could be promptly re-listed for trial with the benefit of that material, having regard to any lien against documents that at that time appeared to be asserted, rightly or wrongly, by ESJ Law through Mr Stevenson.
The Court issued a certificate for pro bono representation for the limited purpose of assisting the Melville Applicant to obtain work product from ESJ Law (specifically any evidence that may have been prepared for the purpose of progressing the matter to trial and mediation) and further assistance to obtain funding for alternate legal representation. The certificate was helpfully accepted by MPS Law and Ms Ann Sibree of Counsel and an affidavit was later filed on behalf of the Melville Applicant deposing to their progress in dealing with Mr Stevenson and the Queensland Law Society. The Melville Applicant later secured alternative legal representation in circumstances that are not known to the Court and the pro bono solicitor and Counsel ceased their work under the referral certificate. In all of the circumstances referred to in these reasons it is reasonable to infer that the Melville Applicant did not apply to QSNTS or NIAA for public funding for the continued prosecution of the Melville Application.
By orders made on 16 November 2023, the matter was again set down for trial with tranches of evidence commencing on 21 October 2024 and 2 December 2024.
The PBC Application was filed on 8 February 2024. That occurred following remarks I made at a case management hearing to the effect that the Court may disapprove of Pitta Pitta PBC maintaining a position on the Melville Application that it was the only appropriate applicant, whilst at the same time making no application of its own. The consequence of its delay would have been that if the Melville Application was determined at trial to lack authorisation, the final resolution of the substantive rights of the Pitta Pitta people to receive compensation might be yet further delayed. The eleventh hour filing of an application by a body corporate might also have put in jeopardy the new trial dates.
As will be seen, the persons comprising the Melville Applicant do not recognise the legitimacy of the PBC Application. They contend that the Board of Pitta Pitta PBC (and hence those having conduct of the proceeding) are not Pitta Pitta people and that the membership of Pitta Pitta PBC has been overrun by people who are not Pitta Pitta people (see below).
The fact that there now exists an in principle agreement between the two compensation applicants on the one hand and the State on the other is commendable. It shows that the parties have, to an extent, focussed on the substantive issue in dispute on the single originating application on which the Melville Applicant and Pitta Pitta PBC are now each named as applicants.
The in principle agreement is said to be subject to authorisation by the Pitta Pitta people. A purpose of the 27 July meeting is for that authorisation to either be given or withheld. Regrettably, neither of the compensation applicants have been able to resolve the disputes between them concerning the authorisation of the Melville Applicant and the Pitta Pitta PBC membership and Board. Actual and anticipated claims on any compensation fund by solicitors and litigation funders have only served to exacerbate those disputes.

[56]

On 17 March 2025, an interlocutory application was filed by ESJ Law (by that time in liquidation) as an interested non-party. Among other things, ESJ Law seeks a declaration that it has "a fruits of litigation or solicitor's particular lien as against any settlement proceeds or settlement fund arising out of or related to these proceedings".
At an interlocutory hearing conduced on 5 June 2025, the Court identified factual and legal questions that appeared to the Court to arise on the ESJ Law application, so as to alert the parties to those issues and enable them to prepare their materials bearing them in mind. Among other things, the Court indicated that it did not wish to have disruptive issues relating to any potential lawyer's conflict of interest arising at short notice.
The Court has determined that resolution of ESJ Law's application should be deferred pending the outcome of any meeting of native title holders because until such time as a meeting is held it cannot be said that a compensation sum is likely to be paid so as to bring into existence a fund against which any equitable lien may be asserted. In deferring the hearing of that application I have not drawn any conclusion that the Court lacks power at this time to make declarations about the legal relationships asserted on ESJ Law's claim. Rather, the Court is minded to ensure that the parties' focus and resources remain on the upcoming 27 July meeting.
Bennett & Philp's application was filed on 9 June 2025. It seeks the payment of fees related to the Melville Applicant's representation in successfully defending Pitta Pitta PBC's appeal to the Full Court culminating in Pitta Pitta. Bennett & Philp was granted a limited audience on the present application because the issues that QSNTS said would justify its intervention are issues that may relate to its claim, and because QSNTS has communicated with the Pitta Pitta people concerning the merits of Bennett & Philp's claim, in the circumstances described below. ESJ Law did not seek an audience.

[60]

The sentence ends there.
The word "Solicitors" is defined to mean ESJ Law.
Apparent signatories to the Peak Funding Agreement include three of the persons who constitute the Melville Applicant, namely Noel Doyle, Florence Melville and Jean Jacks. There are no signatures of the other two persons who comprise the Melville Applicant (Carmel Belford and Neville Aplin). The signature page is dated 13 March 2020.
The transcript of Mr Stevenson's public examination is concerning in a number of respects relating to this proceeding. It contains information to the effect that ESJ Law and Peak may be related entities and about legal proceedings between ESJ Law and Peak culminating in a settlement agreement that appears to provide for a restructure of Peak. When considered in the context of other information on the Court record it also raises questions about whether Mr Stevenson had in fact performed work he had previously told this Court he had performed.
The examination transcript references a further funding agreement purportedly entered into between the Melville Applicant and Mr Stevenson personally, or at least an entity representing his personal interests.
During the course of the examination, Mr Stevenson spoke of obtaining money from another client (described as an "investor") which he represented would be repaid from the commission he would receive under the second funding agreement when the Pitta Pitta people received compensation. He asserted that he believed the claim of the Pitta Pitta people to be worth $250 million and described risks attending the claim in terms suggesting they were nil or negligible.
My observations about the content of the examination transcript should not be taken as findings of the truth of any matters stated in it or any substantive finding of wrongdoing. It is not necessary to make any such findings for present purposes. My intention is to identify some of the issues that appear to arise from it so that the concerns of Mr Wishart (discussed below) and the outcome of the present application can be considered in their proper context.
In his affidavit dated 28 March 2025, Mr Wishart states that it is unclear whether Peak have paid the Melville Applicant's costs while represented by APIX and its file principal Mr Matus.
Mr Wishart states that he has been informed by a paralegal employed by QSNTS that she had seen various documents relating to work done (or claimed to have been done) by third parties in relation to the matter and had calculated the possible claims as totalling $5 million. The breakdown of those anticipated claims is not known to the Court.
Mr Wishart deposes that Mr Stevenson made an application to QSNTS for funding in late 2022. Mr Wishart was not involved in that application as he was then the solicitor on the record for Pitta Pitta PBC, but it is his understanding that a basis for funding could not be agreed. The reasons for that are mentioned in correspondence summarised below. He is not aware of Mr Stevenson making any application for funding to the NIAA on behalf of the Melville Applicant.

[63]

On 16 April 2025 Mr Wishart sent a seven page letter to all Pitta Pita people for whom QSNTS had an email or mail address. The letter was sent in his capacity as the Chief Executive Officer and written on a QSNTS letterhead. The whole of the letter forms the basis for the objections of (at least) the Melville Applicant to the intervention of QSNTS. It is therefore appropriate to describe it in full (other than to disclose the Compensation Sum contained within it).
Mr Wishart first summarised the functions of QSNTS and said that he was writing the letter in the performance of functions conferred under s 203BJ of the NT Act. He referred to the 27 July meeting and the need to consider whether to authorise the in principle agreement as the basis of a consent determination as well as the need to consider how the money was to be managed and what it was to be used for. He then referred to a need to consider "whether the [Melville] Applicant should be able to use the compensation money to pay lawyers, funders and others who have assisted them in the matter or been associated with it". He referred to the proposed Compensation Sum (disclosing the amount) and the assertion of claims by lawyers and a "litigation lender". He stated that "There is a question about whether the [Melville] Applicant had authority from the Pitta Pitta People to make commitments and agreements that would allow their lawyers and funders to be paid out of the compensation money".
Mr Wishart referred to the ways in which native title proceedings could be funded and described the business of litigation lenders as in the nature of loan providers, and the practice of the lender receiving "a percentage of the proceeds of the court case which is on top of the loan repayment". He disclosed that the Melville Applicant had used the services of ESJ Law, a firm owned and operated by Mr Stevenson and that Mr Matus had worked for Mr Stevenson. He added that the Melville Applicant "chose" not to ask QSNTS for assistance to run the claim.
Mr Wishart disclosed that the Melville Applicant had signed an agreement with ESJ Law as well as an agreement with Peak and summarised the hearings and outcomes before Mortimer J and the Full Court.
Mr Wishart said that QSNTS was the lawyer representing Pitta Pitta PBC and said that "Because the PBC asked QSNTS to assist it in the matter, there has been no cost to the PBC or the Pitta Pitta People it represents in relation to its involvement in the compensation claim".
Under the heading of "Potential claims on the Compensation Money", Mr Wishart:

[64]

(1) referred to an affidavit filed by Mr Stevenson on 13 September 2022 in which he had asserted that ESJ Law was owed approximately $920,000.00 by the Melville Applicant;

(2) referred to a letter Mr Stevenson had written in December 2022 to the then QSNTS Chief Execitive Officer seeking funding for "Stage 1" of the Melville Application and in which Mr Stevenson had stated that he would not provide his invoices to QSNTS for approval on a piecemeal basis "given QSNTS is representing and clearly been given approved funding to the Pitta Pitta Aboriginal Corporation";

(3) stated that QSNTS had not been able to reach agreement with Mr Stevenson about funding for the Melville Applicant;

(4) asserted that in late 2022 or early 2023 Mr Stevenson had joined Bennett & Philp and that for a short time Bennett & Philp had represented the Melville Applicant before Mr Stevenson "resumed business under the ESJ Law banner", and went on to say "Despite that, Bennett & Philp claim they are owed money by the [Melville] Applicant or the Pitta Pitta people";

(5) advised that Mr Stevenson had lost his right to practice on 6 April 2023 when the Queensland Law Society suspended his practising certificate, and that it had later transpired that Mr Stevenson had improperly taken $728,432.98 from his firm's trust account;

(6) referred to the evidence Mr Stevenson had given in his public examination to the effect that he considered the compensation claim made in the Melville Application would settle for a minimum of $250 million and that he considered he was personally entitled to 9% of the compensation money;

(7) referred to the application filed by ESJ Law in this proceeding and the Melville Applicant's agreement that ESJ Law should be made a party;

(8) stated that QSNTS opposed the joinder of ESJ Law;

(9) referred to Mr Matus and APIX assisting the Melville Applicant since September 2023; and

(10) listed the entities that might possibly "ask the Court for payments from the compensation money", namely APIX, Peak, ESJ Law, the estate of Mr Stevenson and Bennett & Philp.

[82]

The State submitted that any intervention by QSNTS should be on limited grounds given Mr Wishart's personal role as solicitor for Pitta Pitta PBC and the circumstance that QSNTS remains the solicitor on the record for it (albeit through a different practitioner as file principal). The State raised issues concerning the risk that confidential information (such as the in principle agreement and matters subject to settlement privilege) would be divulged internally with QSNTS. It submitted that Mr Wishart should not have involvement in the intervention role at all given the prior capacity in which he had acted. It otherwise expressed concern about the appearance of a lack of independence on the part of QSNTS.
The State expressed concern about the circumstances in which the Compensation Sum and the in principle agreement had been disclosed to Mr Wishart given that the document was subject to settlement privilege. That disclosure has recently been explained by QSNTS and I make no finding of fact in respect of it.
The Melville Applicant and Bennett & Philp each submitted that QSNTS had direct conflicts of interest and that it otherwise lacked objectivity and independence in relation to the factual and legal issues that may arise for determination by the Court. The lack of independence was said to arise by reason of QSNTS's role as the solicitor for Pitta Pitta PBC, the content of its letter of 16 April 2025 to the Pitta Pitta people and the expression of views about the merits of the solicitors' liens in its other correspondence. The Melville Applicant placed particular emphasis on QSNTS apparently expressing views about the inclusion of the descendants of Alice in the membership of Pitta Pitta PBC, submitting that it had taken a partisan approach in a matter that was highly contentious and that related to the composition of the Board.
It was also submitted that QSNTS could not make any additional or useful submission over and above those that may be made by Pitta Pitta PBC, the State or the Melville Applicant.
Pitta Pitta PBC supported the application for reasons that largely reflected those put forward by Mr Wishart in his affidavits, including the lack of protection for compensation claim group members of the kind to be found in representative proceedings governed by Pt IVA of the FCA Act.

[83]

The compensation sought in the Consolidated Proceeding is for acts affecting native title of the Pitta Pitta people. The loss occasioned by the compensable acts is a loss suffered not only by the living Pitta Pitta people, but also their ancestors and their descendants to come. It is of utmost importance that if there is to be a settlement of the compensation claim and a determination made by consent (or an award of compensation following a contested trial), the living Pitta Pitta people and their descendants have confidence in the legal processes culminating in it. That includes processes relating to costs that may impact upon any Compensation Sum and that properly arise for resolution in the proceeding. Authorisation of an agreement for the settlement of the Consolidated Proceeding under s 87 of the NT Act is a serious matter involving the discharge of duties and responsibilities existing on a number of levels.
The 27 July meeting is not an event that has been required by the Court. Rather, it is a process chosen by the parties as an aspect of their attempts to resolve the issues arising on the originating application without the need for a contested trial. It is not the Court's role to mandate what should or should not occur at such a meeting.
However, in the context of an application for a determination of native title under s 87 of the NT Act, it is well established that the Court may consider whether the agreement before it has been entered into freely and on an informed basis: K_.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 4)_ [2017] FCA 1225, Robertson J (at [43]), citing Munn (for and on behalf of the Gunggari People) v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109, Emmett J (at [30]); Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588, French J (at [3]) and Brown v Northern Territory of Australia [2015] FCA 1268, Mansfield J (at [23]). As North J explained in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 (at [37]):

[85]

Among other things, the Court may have regard to the circumstance that parties have independent and competent representation: Munn (at [29]). The matters relevant to the exercise of the discretion have not otherwise been exhaustively defined.
QSNTS has expressed a concern that the Pitta Pitta people are vulnerable in their dealings with those foreshadowing claims against any award of compensation, and perhaps in their dealings with those who comprise the Melville Applicant. In some respects its submissions proceeded from an assumption that in the context of a compensation application, the compensation claim group members are in an analogous position to group members in a class action governed by Pt IVA of the FCA Act.
QSNTS is correct to describe native title proceedings as representative proceedings. Statements to that effect have repeatedly been made by this Court: see, for example, Gomeroi People v Attorney-General (NSW) [2016] FCAFC 75; (2016) 241 FCR 301, Reeves, Barker and Bromberg JJ (at [154]) and the cases cited therein.
However, it is not to be assumed that members of the compensation claim group on behalf of whom an application is brought are in an equivalent position to group members in a representative proceeding of the kind governed by Pt IVA of the FCA Act, nor is it to be assumed that equivalent forms of protection can or should be afforded by the Court.
To label a proceeding as a "representative proceeding" means little more than that it is commenced and continued by an applicant on behalf of other persons who do not have the status of parties. The relationships established by Pt IVA of the FCA Act and the NT Act are to be discerned by a process of statutory construction.
Without having the benefit of submissions on the topic, it seems to me that there is a potentially critical difference between a representative proceeding governed by Pt IVA of the FCA Act and representative proceedings commenced under s 61 of the NT Act.
In a proceeding under Pt IVA of the FCA Act, a lead applicant is self appointed to start a proceeding on behalf of group members who need not consent to the action being commenced and indeed need not even be aware of it to be bound by the outcome: BMW Australia Limited v Brewster [2019] HCA 45; (2019) 269 CLR 574 (at [73]). Part IVA contains provisions directed to the protection of those persons given the possible extinguishment of choses of action they may otherwise possess as individuals against the respondent party. Under that regime, it is well established that the Court has the power to make a "funding equalisation order" (also referred to as an "expense sharing order") in the context of approving a settlement in the exercise of the power conferred under s 33V of the FCA Act: Evans v Davantage Group Pty Ltd (No 3) [2021] FCA 70, Beech J (at [49]). The making of such an order creates a relationship between each of the group members and the lead applicant that would not otherwise exist at general law. In the absence of such an order a group member may have no obligation to contribute to the cost liabilities of the lead applicant. And, absent a funding equalisation order, a litigation funder could have no recourse to any damages awarded upon judgment or settlement in respect of group members with whom they have no contractual relationship.
In contrast, putting aside applications brought by a prescribed body corporate, no person can self appoint themselves as an applicant on a compensation application of a kind mentioned in s 61 of the NT Act. Such a proceeding must be commenced by a person or persons having first obtained authorisation to bring it. Authorisation under s 251B of the NT Act extends to an authorisation to deal with matters arising in relation to the application. Accordingly, when a compensation application is commenced "on behalf of" a compensation claim group, there is a pre-existing relationship of some kind between the applicant on the one hand and those who have authorised the applicant on the other. The concept of "opting out" forms no part of the scheme.
In the present case, the fact of authorisation of the Melville Applicant is a substantive matter remaining in dispute. On the assumption that the authorisation exists, the consequences that flow from it may also be disputed. Without expressing a concluded view on the operation of the law, the relationship may be akin to a relationship of agent and principal giving rise to fiduciary obligations. Relatedly, an issue might arise as to whether or not the authorised applicant (or only some persons comprising that applicant) may bind a compensation claim group to acts done in connection with the preparation and prosecution of the claim without first obtaining the consent of the principal.
I make those observations at a general level to explain why I do not consider it appropriate to use language directed at protecting any Compensation Sum from claims related to legal costs per se. The word "protect" is apt to imply that any diminishment in the Compensation Sum referable to costs agreements or funding agreements is necessarily an evil that must be prevented in all cases. Mr Wishart's use of that language indicates that QSNTS has a view it wishes to advance about questions of fact and law that may relate to the rights and interests of the Melville Applicant, the Pitta Pitta people, solicitors asserting costs claims and (perhaps) litigation funders seeking repayment and commission. The respective rights and obligations of those participants may include questions about the proper construction of the NT Act, the application of the general law as it relates to fiduciary relationships (solicitor/client and principal/agent), privity of contract, unjust enrichment and other equitable doctrines underpinning the asserted solicitors' liens.
In addition, Mr Wishart's concerns are founded on a belief that the Melville Application is not authorised. Relatedly, there is an unspoken assumption underpinning his correspondence to the effect that the Pitta Pitta people have not authorised the Melville Applicant to take steps creating rights in third parties to be paid money from any compensation that may be described as the fruits of the Melville Application. There is also an assertion that a group of only some of the people who comprise the Melville Applicant cannot bind the Pitta Pitta people in a way that exposes the Compensation Sum to equitable solicitors' liens or (perhaps) claims founded in contract by litigation funders. I express no view about the correctness of those assertions and beliefs.
I raise them here because I have some difficulty reconciling the narrow compass of the proposed intervention conveyed in oral submissions (being an impartial assistance role) with the more active position imparted by Mr Wishart in his affidavits apparently founded on a particular view of the facts and law.
As to the proposed limited role, Counsel for QSNTS confirmed that the proposed intervention would be limited to assisting the Court to apply the law to the facts as found. I am not satisfied that the Court presently requires assistance of that kind, over and above that which can be expected to be provided by the parties, competently and independently advised. Even if that were not the case, I consider QSNTS's correspondence foreshadowing a preferred view about questions of law renders it an unsuitable candidate for the more narrow and independent role it proposed in oral submissions to take. In addition, the appearance of its independence would be affected by the circumstance that it remains the solicitor on the record for Pitta Pitta PBC, which persists in its position that the Melville Applicant is not authorised to bring the Melville Application (so assuming a particular view of the facts). Pitta Pitta PBC may itself be expected to make submissions on the question of whether the Melville Applicant has bound the Pitta Pitta people to the agreements and arrangements it may have entered into in relation to costs and funding (and if not why not). As such, there is already a contradictor before the Court in relation to the claims asserted by ESJ Law and Bennett & Philp. The Court may also have regard to the role of the State in assisting the Court to identify the applicable law and the scope of its powers thus far it has not been asserted by any party that the State should not assist the Court in relation to matters relating to costs.
As discussed below, the Court may also exercise powers of its own initiative after first hearing from the parties, including so as to protect against an abuse of its processes. That may extend to ensuring (so far as is appropriate) that legal practitioners and other fiduciaries appearing before it comply with their duties when bringing or defending an application.
For the purposes of r 9.12 of the Rules, I am not satisfied that the limited independent role of the kind ultimately sought by QSNTS would be useful. If QSNTS seeks to play a more active role as contradictor in order to positively advance its preferred construction of the NT Act (or a position with respect to the operation of the general law), then it may make a renewed application in no uncertain terms at any time.
On the present application, I have placed little weight on the circumstances relating to the composition of the membership and Board of Pitta Pitta PBC. The issue is one of considerable importance to the Pitta Pitta people (and others). However, it is a matter that ought not stand in the way of an award of compensation by consent, having regard to some of the clauses of the in principle agreement. At a previous hearing the State identified those clauses intended to ensure that any Compensation Sum paid in accordance with an order under s 87 of the NT Act is to be held on trust by an entity other than Pitta Pitta PBC, and controlled only by the persons described as the holders of native title rights and interests in the Determination. That appears to the Court to be a sensible means of avoiding intra or intergroup disputes getting in the way of a compromise with the State on the substantive issues arising on the originating application. No party has suggested that there cannot be a determination made under s 87 of the NT Act for so long as disputes concerning the control of Pitta Pitta PBC remain unresolved. Indeed the parties to the in principle agreement have expressly agreed that resolution of that dispute would be delayed.

[86]

The power in r 9.12 of the Rules to grant leave to a person to intervene in a proceeding forms a part of the Court's civil practice and procedure provisions for the purposes of s 37M of the FCA Act. Their overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. To act justly in the circumstances of the present case requires justice to be afforded to all persons whose rights and interests may be affected by the outcome both in respect of the central controversy concerning the sum of compensation and all related controversies that may arise. In the present case, that includes the Pitta Pitta people as well as the named parties to the proceeding and (thus far) the two interveners. Section 37M(3) requires that the Court's procedural powers be exercised "in the way that best promotes the overarching purpose". That requires the Court to have regard to alternate means by which the purpose may be promoted that are preferable to the proposed intervention of QSNTS.
I have mentioned that on an application for an order under s 87 of the NT Act, the Court should be satisfied that any agreement put forward by the parties has been freely entered into by parties having been competently and independently represented and advised. The Court may be unwilling to make an order if matters previously brought to the Court's attention and forming a part of its record would impede it from reaching that state of satisfaction. A concern underpinning the application of QSNTS is the apparent lack of information about the full extent of the arrangements and agreements entered into by the Melville Applicant in circumstances where the Pitta Pitta people may soon be asked to pass resolutions affecting their rights and interests as a group related to that subject matter. That is a legitimate concern. It is presently shared by the Court, to the extent that it potentially affects the use of the Court's processes and resources.
The concern arises because of the inherent nature of a representative proceeding involving the potential for the interests of parties, represented persons and lawyers to diverge. Whilst the statutory context is different, the following observation of Gageler CJ, Gleeson and Jagot JJ in Lendlease Corporation Limited v Pallas [2025] HCA 19; 99 ALJR 834 in respect of a class action resonates with the Court in the present proceeding as it no doubt does with the parties' legal advisers and representatives (at [22]):

[88]

See also Thomas v Romeo Lockleys Asset Partnership [2022] FCA 1106 (at [37] - [42], [65]).
The letter sent by QSNTS to the Pitta Pitta people on 16 April 2025 disclosed some information known to Mr Wishart but was necessarily limited to those matters within his knowledge. In the letter he expressed a concern that the cost and funding arrangements between the Melville Applicant and APIX are unknown, as are other important facts and circumstances. To the extent that any party criticised Mr Wishart for sending that letter, the Court makes it clear that it does not join in that criticism. Given its statutory functions, QSNTS can be expected to persist in such activities as it considers necessary and appropriate for the fulfilment of its statutory functions and the outcome of this interlocutory application should not be understood to discourage those activities.
It may reasonably be inferred that Mr Wishart was motivated to ensure that the Pittta Pitta people are equipped with all relevant information (and that they have sufficient time to consider it) before passing any resolution that may affect (or purportedly affect) any rights or interests they may presently have or the rights and interests presently held by others. On the material presently before me, that is a legitimate concern.
To that I would add that the Pitta Pitta PBC (as co-applicant) should not be left guessing at the existence and possible extent of potential claims relating to costs that may impact on any Compensation Sum to which it has agreed on an in principle basis in the intended compromise of the same claim founded on the same originating application. The full extent of possible claims on the Compensation Sum referable to legal costs and fundings presently remains within the knowledge of the Melville Applicant, its advisers and funders. In accordance with the High Court's observation in Lendlease I am presently of the view that there is a real potential for inconsistencies of interest to arise (if they have not arisen already) and that those issues may be managed by the Court in the interests of justice as they appear in the circumstances of this case.
In light of the above, the parties should be heard on the question of whether there should be an order requiring the Melville Applicant (and perhaps its advisers separately) to give full and frank disclosure of all arrangements and agreements entered into by them or any one of them that they have reason to believe may conceivably impact upon any Compensation Sum. That is especially so because the Melville Applicant appears to assume (rightly or wrongly) that it stands in a relationship of agent with the Pitta Pitta people as principal, presumably invoking principles of the kind discussed in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 and Quickfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) [2013] FCAFC 5; (2013) 209 FCR 368. I discern those assumptions from the position adopted in response to the ESJ Law claim based solely on discrete aspects of quantum, underpinned by an assumption that the Pitta Pitta people are otherwise bound by the acts and omissions of those who comprise the Melville Applicant or a subset of them.
To be clear, I have made no finding about the nature of that relationship. It is sufficient to say that for so long as the Melville Applicant maintains the position described above, it should conduct itself in accordance with equitable principles defining a fiduciary relationship of the asserted kind, starting with disclosure of all of the facts and circumstances that may bear on any Compensation Sum that may be paid for the benefit of the asserted principal, should an order under s 87 of the NT Act be made.
Depending on the cost arrangements and agreements disclosed, there may also be a need for individuals or groups to obtain independent legal advice about their respective rights, obligations and duties. In that event, the Court may consider the issue of a further certificate under r 4.12 to independent lawyers to play advisory and contradictory roles as may be considered appropriate after hearing from the parties and affected non-parties.
QSNTS has advised the Court of its preparedness to fund and facilitate the provision of independent legal advice should it be required. For that reason, I consider it appropriate that QSNTS be granted an audience in its own right at future hearings so that it may address the Court on the form that any such funding and facilitation might take.
I am presently of the view that the adoption of procedures of that kind would best promote the overarching purpose of the civil practice and procedure provisions and that such procedures are preferable to permitting QSNTS to play the limited role it ultimately proposed on this application. In the ordinary course, it is preferable that contradictory positions be put forward by parties to the litigation on their own behalf with the benefit of all relevant information and the benefit of competent and independent advice and representation.
The proposed course has the potential to further delay the 27 July meeting. However, the efficiency of proceeding on that date may well prove illusory if there remains debate about appropriate resolutions, and an apparent lack of information necessary to inform what those proposed resolutions should be.

Melville on behalf of the Pitta Pitta People v State of Queensland

At a glance

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Judgment (93 paragraphs)

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Legislation Cited (4)

Cases Cited (9)