53 At issue is whether a binding contract between the Minister's department and Mr and Mrs Smith came into existence on 30 May 1991 and whether that contract, if finalised at that date, also gave rise to a licence under the CL Act. Although stated as two separate questions they are difficult to consider separately as the Minister's case is that the same process of agreeing a contract through a tender process gave rise to a licence issued for the purposes of s 34 of the CL Act.
Whether legally binding agreement
54 The Applicant's counsel provided an excellent summary of the relevant principles in relation to the formation of a legally binding contract which the Minister agreed with. As I cannot improve on this I adopt it and now set the principles out:
(a) a party alleging the existence of a legally binding contract bears the onus of proving its existence: for example Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 per Gaudron, McHugh, Hayne and Callinan JJ at [26];
(b) whether or not a binding contract comes into existence depends on the intention of the parties;
(c) whether the parties intend immediately to be contractually bound is to be determined objectively, according to the intention disclosed by their words and conduct: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549 per Gleeson CJ, with whom Hope and Mahony JA agreed;
(d) the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties ( Masters v Cameron (1954) 91 CLR 353 at 362 per Dixon CJ, McTiernan and Kitto JJ; ABC v XIVth Commonwealth Games Ltd at 548-549 per Gleeson CJ), "as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour" : Ermogenous per Gaudron, McHugh, Hayne and Callinan JJ at [25];
(e) parties may enter into a binding contract upon terms and conditions necessary for their contractual relationship, in the expectation that at a later time the formal contract will be executed consistently with those terms and conditions or perhaps with additional terms and conditions. Conversely, parties may agree upon quite detailed terms and conditions for a contractual relationship but not intend immediately to be contractually bound on those terms and conditions; this may be pending negotiations on other matters or until execution of a formal contract: Sagacious per Giles JA at [66];
(f) where the question is whether a single document constitutes a legally binding contract; "the decisive issue is the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances" : Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 per McHugh JA at 634; (I note the Minister submits the contract is found in four documents, par 20 above);
(g) however, there is the prior question whether the document is the sole repository of the parties' contractual intention: Sagacious per Giles JA at [66];
(h) as McHugh JA observed in Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 336-337, "the intention to be bound is a jural act separate and distinct from the terms of their bargain" (cited by Giles JA in Sagacious at [68]);
(i) accordingly, the answer to what can be describes as a Masters v Cameron question is not necessarily found in a single document. As Giles JA observed in Sagacious at [69]:
The intention of the parties may be found in a series of communications, or it may be shown that the signed document is only part of their putative contractual relationship. Further, in ascertaining the intention of the parties, whether from a series of communications or from a single document, regard can be had to the commercial circumstances in which the parties exchanged their communications or arrived at the document and to the subject-matter of the putative contract. The objective intention of the parties is fact-based, found in all the circumstances including "by drawing inferences from their words and their conduct in the making of [their] agreement": Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528 at 532 per Stephen, Mason and Murphy JJ; see also Australian Broadcasting Corporation v XIV Commonwealth Games Ltd at 548 per Gleeson CJ.
(j) it is long settled principle that regard can be had to the conduct of the parties after the occasion of the putative contract, to cast light on the meaning of the communications in question and otherwise on whether they intended immediately to be contractually bound: Sagacious per Giles JA at [69], and [99] to [106] and cases there cited; see generally Michael Furmston and GJ Tolhurst Contract Formation: Law and Practice (2010) Oxford University Press, Ch 10. In Howard Smith and Co Ltd v Varawa at [78] Griffiths CJ said that:
the question being whether the parties had in fact concluded an agreement on 1st December, any statements or conduct on their part after that date inconsistent with the existence of a concluded contract are relevant for this purpose.
(k) as Mason P observed in Randwick City Council v Nancor Trading Co Pty Ltd [2002] NSWCA 108; (2002) 120 LGERA 261 at [36], the context to be considered may include events occurring after the alleged date of the contract "because this may assist in pin-pointing when a contract was made" .
55 Three categories of contractual arrangements where the parties have been negotiating on contractual terms and also agree that that there will be a formal contract (here a licence under the CL Act according to the Minister) were identified in Masters v Cameron by the High Court (Dixon CJ, McTiernan and Kitto JJ in unanimous judgment) at 360. Firstly, where the parties reach finality in all the terms of the bargain and intend to be immediately bound by those terms, and at the same time propose to have the terms in a form which will be fuller but of the same effect. Secondly, where the parties agree all the terms of their bargain and intend no departure from these but also make performance of one or more terms of the bargain conditional on the execution of a formal document. Thirdly, the parties do not intend to make a concluded bargain until they execute a formal contract. In the first two categories there is a binding contract when the terms are agreed. There is no contract in the third category until a formal agreement is entered into.
56 The category referred to as the fourth category in Masters v Cameron by the parties is in fact identified in other cases such as Baulkham Hills Private Hospital. It refers to circumstances where a document recording the terms of the parties' agreement refers to the execution of a formal contract but the parties are immediately bound on a proper construction of the document. The Minister (in his secondary case, par 22 above) submits this is the applicable category to the arrangements between the Minister and the Smiths. In the alternative he submits the circumstances are those in the second or third category in Masters v Cameron. The Minister's primary case is that on 30 May 1991 a concluded contract which gave rise to a licence was reached. The authorities emphasise that the question must be answered objectively considering all relevant circumstances.
57 The Applicant also relied on Marshall v Berridge (1881) 19 Ch D 233 at 245 in which a lease which had no commencement date was held to be invalid for lack of certainty. The Minister argued that case was not relevant as it concerned a lease which creates an interest in land unlike a licence.
58 Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] 1 Ch 233 at 254D was cited by the Minister as authority that a contractual licence is not an entity distinct from the contract which brings it into being, but merely one of the provisions of that contract. Hounslow related to a standard form building contract and the licence for building contractors to enter the building site for the purpose of constructing dwelling units. In reply, the Applicant distinguished Hounslow from the factual circumstances of this matter as the Smiths were not licensees on land by any contractual right. I agree with the Applicant that the grant of a licence by the Minister under s 34 of the CL Act is different to a contractual licence.
59 Whether a binding contract was reached must be determined objectively, as held by the authorities identified above in par 54. The Minister bears the onus of establishing the existence of the contract as he seeks to rely on it (per Ermogenous). Under the ALR Act the Minister also bears the burden of establishing primary facts and inferences to be drawn from these in order to discharge the onus he bears under the ALR Act (per Basten JA at [202] in Bathurst).
60 The parties provided detailed submissions which I have set out above largely unaltered. These were difficult to summarise as it was necessary to consider the transactions between the Minister and the Smiths in detail in order to make the submissions the parties deemed necessary.
Up to 30 May 1991
61 The documents and evidence identify steps leading up to the conclusion of a contract on 30 May 1991 according to the Minister (table ref 1-14). The Minister submits that the contract and licence were made by the agreement of the parties as identified in four documents. The Smiths were invited to tender (par 17 table items 7 and 8). A copy of the blank licence form including conditions was sent to the Smiths by the Department as part of the tender process (par 17 table item 8). The front page provides for the Minister's signature to be affixed. Schedule 1 to the licence form did not have a commencement date and other relevant information. The Smiths sent an undated letter which stated that they accepted all conditions listed in the schedule and licence (par 17 table item 11). The letter of 30 May 1991 from the Department accepting the tender is set out in its entirety in the table (par 17 table item 14). It refers to the preparation of a licence document and asks for names, a copy of the conditions previously sent to the Smiths and a processing fee of $315.
62 The Minister's submissions on why this document and those preceding it gave rise to a binding contract with all agreed terms are identified above at par 19 to 24. The Applicant's comprehensive submissions as to why that cannot be the case are set out above at par 27 to 39.
63 The Minister submitted that there was nothing in the 30 May 1991 letter suggesting that further steps were required before a binding agreement was concluded. At the time the letter of acceptance of the tender dated 30 May 1991 did not give rise to a concluded contract whereby all terms were agreed and all that remained was the execution of a formal licence agreement which included agreed terms (par 20, 21 above). In my view, at that point there was not a final agreement on all terms of the contract as at that date as there were still matters to be finalised. The tender documents included a blank licence form with some of the operative provisions, in particular the commencement date for the payment of rental, rental amount and personal details relating to any licensee(s) omitted as these would not be completed until the tender process was competed. I have to agree with the Applicant's submissions set out in par 36 and 37 as to the effect of the letter, which was that the market rental for the ability to graze was accepted and that a licence document had to be prepared which would include additional terms.
64 The letter also referred to the requirement to pay a processing fee for a licence document. That alone suggests that a licence document was to be provided by the Department as a subsequent step given that such a document was provided in blank form as part of the tender. As submitted by the Applicant in par 38 the payment of a licence fee does not suggest that a contract which is also a licence had then been concluded. The Applicant relied on Coshott as an analogous situation concerning the payment of a fee for a development application which did not give rise to a contract. The same analysis applies in this situation also.
After 30 May 1991
65 The parties made conflicting submissions on the relevance of the events after 30 May 1991. As set out above in par 40 to 46 the Applicant relied on these as demonstrating that there was no binding agreement to enter into a licence on the part of the Minister. The Minister submitted these events were irrelevant as they occurred after the date the contract was finalised on 30 May 1991. Alternatively, the "Offer of licence over Crown land" received by the Smiths after 5 September 1991 cannot have had the effect of undoing or altering the existing contractual relationship which had already come into being.
66 As referred to by the Applicant relying on Sagacious at [69] and Nancor at [36] inter alia, events after 30 May 1991 can be considered in order to determine whether it was intended by the parties that a binding contract be finalised on that date. In the table at par 17 events from item 15 took place after the date the contract was concluded (if it was). These events include the placement of stock on the land by the Smiths immediately after receiving the departmental letter, lodgement by the Smiths of the processing fee of $315, the Smiths securing fencing around the land, the Department preparing a licence document which states that it is open for 40 days from the date of the letter, Mrs Smith ringing the Department to find out about rent payment, the Department noting the licence documents had not been received, the Department sending the document, land claims lodged, licence document signed by Smiths and returned with first year's rent payment to the Department, a departmental officer considering that as land claims had been lodged and the licence not executed the land was not lawfully used or occupied and approved withdrawal of licence offer and refund of rent paid, the Smiths were advised accordingly by letter dated 6 December 1991 and a refund of the rent being paid.
67 The effect of the document called an offer of licence over Crown land received by the Smiths in early September 1991 from the Department is also discussed extensively in the parties' submissions. The Minister submitted (par 24(m)-(o)) that while received by the Smiths in early September, that is after the contract was finalised, it could not alter that agreement. It contained a commencement date of 1 August 1991, which had already passed. This was argued to be an acknowledgment that the relationship of licensor and licensee had already commenced. This is contrary to the description of the document as an offer which required the execution of the Minister in order to be effective, according to its terms. While the Minister submitted that to construe the document as other than acquiescence that the Smiths could use the land from 1 August 1991 that is contrary to the express terms of the document which required execution in order for it to be effective. As set out in the Applicant's submissions par 40, there were numerous references in the offer of a licence which suggested that it was just that, an offer. Apart from the title the offer was open for period of 40 days and stated that signature on the draft licence did not constitute the creation of a licence. The inference to be drawn from the document itself is that it was an offer, an inference inconsistent with there being a final binding agreement reached by the parties on 31 May 1991 which included a licence of Crown land.
68 The subsequent events confirm that there was no intention by the Department to enter a binding contract the formal outcome of which was a licence under the CL Act as a result of the letter from the Department to the Smiths of 30 May 1991.
Objective v subjective evidence
69 The Minister has relied on the affidavit evidence of the Smiths to the effect that they considered they were entitled once their tender offer was accepted to place cattle on the two lots immediately as they understood an agreement had then been reached. The subjective understanding of one party is not conclusive that a final agreement has been reached. In this case events took place some 18 years ago. No view is provided by the Department as to the understanding of its officers (perhaps not surprisingly given the time that has elapsed). The Smiths' evidence as to their belief on 30 May 1991 when the letter from the Department accepting the tender was received and their actions on and after 30 May 1991 in placing cattle on the land is not conclusive of whether there was a final contract which gave rise to a licence over Crown land.
70 In relation to the state of mind of relevant officers in the Department, documents from the departmental file in evidence leading up to the formation of the contract can be considered. The view of the Department as expressed in the internal minute dated 27 May 1991 (par 17 table item 13) when the Smiths' tender was accepted was that the offer be accepted subject to conditions set out in the licence document. The inference arising from that minute is that the licence document had still to be finalised following acceptance of the tender (which is referred to in the Minister's submissions par 26(i) as ambiguous). That was in fact the case in that the commencement date had not been finalised. It is also confirmed by the later actions of the Department in not issuing a licence executed by the Minister's delegate (as argued by the Applicant in par 46(e) above).
71 The primary case for the Minister (par 21 above) that the contract was created and gave rise to a licence is not established in the above circumstances. Further reason for this is also found in the next section which deals with this issue in the context of whether a statutory licence can be issued in that way in any event. In relation to the alternative case of the Minister (par 22), the circumstances in this case are closest to those referred to as the third category in Masters v Cameron, namely the parties do not intend to make a binding contract until they executed a formal contract. This did not occur. Consequently, the Minister is unsuccessful in relation to this part of his case.
Can a statutory licence to graze cattle be granted by tender?
72 A further consideration raised by the parties' arguments is whether entering into a binding contract on 30 May 1991 (assuming this occurred) also gave rise to the grant of a licence under the CL Act. As identified above in par 56, whether the contract also gave rise to a licence under s 34 of the CL Act is in dispute. Section 34 of the CL Act provides broad unfettered power to the Minister to grant licences in such manner as he or she thinks fit. There is no requirement for a land assessment under s 35 before a licence is granted unlike the creation of other interests in Crown land provided for in the CL Act.
73 The Minister has argued the contract awarded by a tender process gave rise to a licence effective from 30 May 1991 and that is in accordance with the Act. It is open to the Minister to grant a licence in terms which incorporates by reference to other documents the terms that are agreed. The Minister submits that is appropriate as a licence does not create any interest in land and is determinable at will. The Minister has broad discretion under the CL Act to determine the form and content of a licence under the CL Act. The Applicant argues to the contrary that the entering into a binding contract mutually agreed by two parties is separate from the unilateral grant of a licence of Crown land, a grant of statutory authority, by the Minister under the CL Act. The tender process and the issuing of a licence over Crown land was a two step process with the first step of reaching a contractual agreement being separate from, and not automatically arising from, the tender process.
74 It is helpful to first consider the nature of the tender process generally and in the specific circumstances of this case as the Minister relied on the conduct of the tender process as supportive of his case, see submissions at par 24(e)-(h) above where the nature of the tender process undertaken and the information disclosed is set out. The Minister referred to N Seddon, Government Contracts, 4th ed (2009) Federation Press, and relied on par [7.6] as follows:
[7.6] Formal documentation - when is the contract made? It is usually the case that the successful tenderer will be required to enter into a formal written agreement. If so, the question arises: does a binding contract come into being on acceptance of the tender or on execution of the formal document? The answer depends entirely on the intention of the parties as disclosed by the tender documents. If it is made clear that formation of contract is contingent on the execution of a formal document - the agreement is, for example, "subject to contract" - then acceptance of the tender does not constitute formation. However, this would be unusual in a tender at least for smaller and uncomplicated contracts. Sometimes, particularly with routine purchases, the intention is that selection of, and notification to, a particular tenderer is acceptance of that tenderer's offer and the execution of a formal document becomes one of the obligations of the contract. The written agreement is generally only intended to recapitulate what was specified in the request for tender. The High Court in Masters v Cameron acknowledged the possibility of a "holding" contract that contemplates the execution of a formal contract in its first two categories under which the parties intend to be immediately bound but they intend to restate their bargain "in a form which will be fuller or more precise but not different in effect", or they have made performance of one or more of the terms to be conditional upon the execution of a formal document….
It is there unlikely that it will be possible to argue that formal documentation is a crucial step in the tendering process (unless the terms of the tender make this absolutely clear).
75 The Minister argued this analysis supported his argument.
76 The Minister also referred to the dictionary definitions of "tender" as found in the Macquarie Dictionary and Butterworths Australian Legal Dictionary. The Macquarie Dictionary, 5th ed (2009) Macquarie University, defines tender as "… the act of tendering; an offer of something for acceptance …". Butterworths Australian Legal Dictionary, (1997) Butterworths Sydney, defines tender as "[a]n offer which is capable of acceptance".
77 Cases which have considered tender contracts were referred to by both parties. Nancor was relied on by the Minister. The Court of Appeal (Stein JA, Mason P and Santow JA concurring) was considering an appeal against Rolfe DCJ's decision to award a large amount of damages to Nancor resulting from his finding that the parties had entered into a binding agreement which gave rise to damages if the contract was frustrated or brought to an end. That case had unusual facts involving a tender by the council for a contract to operate a kiosk in a council owned building. The tender stated that the tender was in accordance with the specification issued by the council and an acceptance by the tenderer of the terms and conditions in the specification. The successful tenderer was sent a draft licence agreement which had significant differences from the tender specification documents, such as a reduction in the term of an option and specified market review of rent rather than CPI, inter alia. The kiosk building the subject of the tender was demolished by the council while negotiations about the licence agreement were ongoing. Rolfe DCJ held that the contract was that identified as the second category in Masters v Cameron, the parties having completely agreed on all the terms of their bargain and with no intention to depart from or add to these. The Court of Appeal agreed that a binding agreement was concluded on the acceptance of the tender by the council.
78 The Applicant correctly submitted that the tender in Nancor was under the Local Government Act 1993 which provides for strict rules as specified in the Local Government (Tendering) Regulation (1999) (repealed). The issuing of tenders under the CL Act is not subject to any similar provisions. The tender included a commencement date, unlike this case. The tender specified that the licence fee was payable from the date of occupation notwithstanding that the licence agreement may not have been executed, unlike this case where the 30 May 1991 letter made no reference to when payment of rent would commence. The acceptance by the council specified a commencement date, the timing and method of payment unlike the letter of 30 May 1991 in this case. There was no processing fee to be paid for the preparation of a licence document. In contrast to Nancor, there was no suggestion in this case of any agreement that use or occupation be authorised prior to agreement in relation to the terms and conditions, and the execution of a formal licence document. Nor does Nancor deal with the grant of a statutory authority for the use of land as this case does, another important point of difference.
79 Further, in this case the licence document, a copy of which was sent to the Smiths as part of the tender process, required formal execution by the Minister's delegate in order for it to take effect. Events after 30 May 1991 confirm that was the view of the Department.
80 Other authorities referred to by the Applicant which consider a tender process include Upper Hunter Timbers Pty Ltd v Forestry Commission of New South Wales [2001] NSWCA 64 (Handley, Stein and Giles JJA). In that case an agreement was reached by tender in relation to a licence to take timber. The respondent invited tenders and published details describing the tendering procedure in a brochure which had a tender form and general conditions attached. The general conditions of tender included a statement that the supply of timber to the successful tenderer(s) would be made under the Forestry Act 1916, the Forestry Regulation 1983 and subject to the conditions of licences issued under those statutes. Following the tender process, the respondent informed the appellant that the appellant's tender had been accepted in principle and confirmed subject to satisfactory negotiation. This was held to be an agreement to take the necessary steps to grant a licence, not the granting of the actual licence. I agree with the Applicant that the approach taken in that case is also relevant to the circumstances in this case. It confirms that the Applicant's submissions on the two step process in relation to the tendering process in 1991 to determine the market value of the licence to be followed by a separate grant of the licence are correct.
81 The Applicant also adopted the analysis in Byrne v Shire of Broome [2006] WASAT 376; (2006) 48 SR(WA) 161 of the State Administrative Tribunal of Western Australia concerning the granting of an authorisation under the Local Government Act (WA) 1995. The decision of the tribunal at [11]-[13] states:
11 First, a decision not to award a tender for goods or services to a person does not involve a decision not to grant the person an "authorisation". The term "authorisation" is defined in s 9.2 of the LG Act to mean, unless the contrary intention appears, "a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition". The word "authorising" means giving authority or legal power to or empowering a person to do something or giving authority for or formally sanctioning an act or proceeding: The Macquarie Dictionary (Macquarie, 4th ed (Sydney) 2005), page 91. Similarly, in Ex parte Johnson; Re MacMillan (1946) 47 SR (NSW) 16, Jordan CJ observed at 18 that "the word 'authorise', according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess"; see also Metal Manufacturers Pty Ltd v Lewis (1998) 13 NSWLR 315 at 318 and Transport Accident Commission v Moore [2004] VSCA 60 at [13].
12 As the Shire correctly submits:
"The process of authorisation is therefore a unilateral process, whereby a person or entity possessing a lawful, statutory authority authorises, approves or otherwise confers a right to do something on a person who did not otherwise possess such authority ...
The process of tendering is a contractual process that is essentially consensual and bi-lateral in nature, in contrast to a process of authorisation whereby a licence, permit or approval is granted in a unilateral exercise of statutory or other lawful authority."
13 It is apparent from s 3.57 of the LG Act, which requires a local government to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services, and the terms of Pt 4 of the LG (F&G) Regulations, that a tender, which effectively forms an offer for acceptance for the purpose of creating a contract for the supply of goods or services to a local government, is not an application for a licence, permit, approval or other means of giving authority or legal power to or empowering a person to do something or giving authority for or formally sanctioning an act or proceeding. The process of inviting and accepting a tender for the purpose of creating a contract for the supply of goods or services is fundamentally different in character to the process of authorisation.
82 I agree with the Applicant that the distinction drawn in that case between the acceptance of a tender and the grant of an authorisation (there under the WA Local Government Act) is apposite to this matter which involves the grant of a licence of Crown land under the CL Act. The tender process is a means of determining the market value of the licence, a contractual process. The grant of a statutory authority is separate from that process. I agree with and adopt the submissions of the Applicant set out above at par 47 to the effect that the Smiths were not entitled to graze cattle without the granting of a licence and that did not occur. Authority to graze cattle on Crown land under the CL Act could not arise solely from the tender process.
83 The Applicant relied by analogy on a contract for the sale of land (par 47(a) above) and, more relevantly, the development consent process as referred to in Ansett Transport as analogous circumstances where the discretion to grant statutory authority was held not have been fettered by an application for a fee for that authority. Mason J at [75]-[76] referred to authority that in town planning cases a planning authority cannot by contract fetter its future discretion whether or not to grant development consent. The force of that finding and approach as appropriate for this case is not undermined by the fact that a licence over Crown land does not create an interest in land and is determinable at will. A licence is nevertheless a conferral of statutory authority under the CL Act.
84 The distinction between the granting of a licence of Crown land and an agreement in relation to the use of that land on terms can be demonstrated by referring to the Minister's submissions that the Smiths were the offerors and the Minister in effect was the offeree in relation to the tender process. As submitted by the Applicant, that may be an available characterisation of their relationship in relation to ascertaining market value for a licence in a tender process, but not in relation to the grant of a licence. The Minister is offeror/grantor of a licence under s 34 of the CL Act. While a tender process can give rise to a binding contract it cannot confer a binding grant of a statutory authority. Nothing in the extract from Seddon set out in par 73 concerning the nature of the tender process applies to the grant of a statutory authority.
85 This conclusion means that the Minister's case must fail even if there was a binding agreement between the parties reached on 30 May 1991 that was intended to give rise to a licence under the CL Act (although I have held to the contrary above in par 71). The granting of the licence under the CL Act is a separate unilateral action by the Minister, and one which did not ultimately take place. The preparation and execution of the licence was more than a formal recording of the agreement of the parties reached on 30 May 1991. Consequently the grazing of the Smiths' cattle on lots 89 and 90 at the date of the claim was not authorised under the CL Act. As a result the claimed land was and is claimable Crown land under the ALR Act.
86 The Applicant is successful in this appeal and I therefore make the orders sought in the application.
Orders
87 The Court makes the following orders:
1. The appeal is upheld.
2. The Minister is to transfer the land claimed in Aboriginal Land Claims 3967 and 3969 in fee simple to Muli Muli Local Aboriginal Land Council.
3. The Minister is to do all things necessary to enable the transfer of the land in accordance with order 2, including surveying the land, as soon as reasonably practicable.
4. Costs are reserved.