PAT -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [No 2] [2012] WASC 491 (13 December 2012)

4 The Federal Court is currently dealing with an application made pursuant to the NT Act (the Federal Court proceedings) brought on behalf of the Yindjibarndi people for a determination of native title over an area of land and water adjacent to the Yindjibarndi Native Title Area (the Yindjibarndi Claim Area). The plaintiffs are among those persons named as the Applicant in the Federal Court proceedings. In 2008, the persons named as the Applicant in the Federal Court proceedings appointed the YAC to be their agent in relation to their claim, with the result that thereafter the YAC represented the Applicant in the Federal Court proceedings. A disagreement has since arisen within the Yindjibarndi native title claim group as to who is authorised to constitute the Applicant in the Federal Court proceedings, and whether the YAC should continue to represent the Applicant in the Federal Court proceedings. That disagreement has resulted in two interlocutory applications being brought in the Federal Court proceedings, pursuant to s 66B of the NT Act (the s 66B applications).

5 By a Notice of Motion dated August 2012, the first and second defendants sought an order pursuant to s 58635 of the CATSI Act for the transfer of the Supreme Court proceedings to the Federal Court at Perth (the transfer application). The plaintiffs opposed the transfer application.

6 For the reasons set out below, the transfer application should be dismissed.

1. Overview of the factual background to the transfer application;
2. The Court's jurisdiction to transfer matters pursuant to the CATSI Act;
3. The grounds for the transfer application;
4. Whether the Supreme Court proceedings should be transferred to the Federal Court.

1. Overview of the factual background to the transfer application

8 In order to explain my reasons for decision in relation to the transfer application, it is necessary to say something about a broader dispute within the Yindjibarndi native title group in relation to decision making within the group, about the issues requiring resolution in the Supreme Court proceedings and in the Federal Court proceedings, and about the issues requiring resolution in relation to the s 66B applications.

(a) The dispute about decision making within the Yindjibarndi native title group

9 Senior counsel for the defendants submitted that the Supreme Court proceedings and the s 66B applications were manifestations of a broader dispute about decision making within the Yindjibarndi native title claim group. That dispute appears to have manifested itself in three ways.

10 First, senior counsel for the defendants submitted that a dispute has arisen within the Yindjibarndi community as to whether the YAC and the Applicant in the Federal Court proceedings should execute a land use agreement with Fortescue Metals Group Ltd (FMG) pertaining to the use of land which forms part of the Yindjibarndi Claim Area and part of the Yindjibarndi Native Title Area (the proposed FMG agreement). There was little evidence before the Court in relation to this dispute, and what follows is intended to provide only a very broad brush overview of what counsel submitted was the nature of the dispute.

11 Senior counsel for the defendants submitted that the plaintiffs were among a group of Yindjibarndi people who were in favour of the execution of the proposed FMG agreement and who organised a meeting on 16 March 2011 to consider that issue (the 16 March 2011 meeting). According to senior counsel for the defendants, the plaintiffs claim that two important decisions were made at the 16 March 2011 meeting. First, the plaintiffs claim that it was decided that the proposed FMG agreement should be executed. Secondly, the plaintiffs claim that they were authorised by those at the meeting to apply to the Federal Court for the removal (from the list of persons who constitute the Applicant in the Federal Court proceedings) of any Yindjibarndi person who refused to take the necessary steps to bring about the execution of the proposed FMG agreement.

12 Senior counsel for the defendants submitted that not all of the members of the Yindjibarndi native title group subsequently took steps to bring about the execution of the FMG agreement, and nor did the YAC itself. (Senior counsel for the defendants submitted that because the YAC is the prescribed native title body corporate in respect of the Yindjibarndi Claim Area, the YAC would have been a necessary party to any land use agreement in respect of that area.)

13 The defendants say that the 16 March 2011 meeting did not constitute a meeting of the Yindjibarndi native title claim group and dispute the validity of any decisions said to have been reached at that meeting.

14 Senior counsel for the defendants submitted that the dispute about whether to enter into the proposed FMG agreement was the genesis for a second dispute within the Yindjibarndi community, which pertains to the management and control of the YAC itself and the alleged conduct of the YAC with respect to some of its members including the plaintiffs. It is this second dispute which has resulted in the Supreme Court proceedings.

15 Thirdly, a dispute has arisen as to who should represent the Yindjibarndi native title claim group in the Federal Court proceedings. That dispute has resulted in the s 66B applications.

16 At least insofar as the Supreme Court proceedings are concerned, the issues said to require resolution in these proceedings were, prior to the hearing of the transfer application, set out in an Amended Originating Summons dated 23 December 2011 and in a Statement of Issues, Facts and Contentions dated 16 July 2012 filed on behalf of the plaintiffs (the plaintiffs' SIFC), and a responsive Statement of Issues Facts and Contentions dated 13 August 2012 which was filed on behalf of the defendants (the defendants' SIFC). However, in the course of the hearing of the transfer application, counsel for the plaintiffs made clear that the Amended Originating Summons and the plaintiffs' SIFC dated 16 July 2012 required amendment because they were inaccurate. The documents were said to be inaccurate for two reasons. First, some of the factual matters referred to in them were no longer relied upon by the plaintiffs. Secondly, some of the issues which appeared from those documents to arise in the Supreme Court proceedings were not in fact issues that the plaintiffs now say arise in the Supreme Court proceedings.

17 Despite the Court's suggestion that the preferable course in the circumstances might be to adjourn the hearing of the transfer application while counsel for the plaintiffs filed a further Statement of Issues, Facts and Contentions, counsel for both the plaintiffs and the defendants opposed that course. Senior counsel for the defendants indicated that the defendants were content to argue the transfer application on the basis that the plaintiffs' case was as set out in submissions filed by counsel for the plaintiffs, and on the basis that the nature of that case would be reflected in a further plaintiffs' SIFC. A further plaintiffs' SIFC (which was, for all intents and purposes, a substituted SIFC) was filed on behalf of the plaintiffs on 25 September 2012.[6] The defendants filed a further SIFC in response on 23 November 2012.

18 In the Supreme Court proceeding, the plaintiffs seek the exercise by the Court of powers pursuant to s 1665, s 8040 and Div 576 of the CATSI Act, and the Court's equitable jurisdiction, to make numerous orders.

19 The CATSI Act, which replaced the Aboriginal Corporations and Associations Act 1976 (Cth), extensively regulates the registration and governance of indigenous corporations. According to the second reading speech for the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 (the CATSI Bill), the key features of the Bill included, amongst other things, that it aligned corporate governance requirements for ATSICs with modern standards of corporate accountability, and in particular that it applied mainstream Corporations Law - such as the duties of directors and officers of corporations - to ATSICs, and provided for greater rights for members of ATSICs, together with the means by which to enforce those rights. At the same time, the standards enacted by the Bill were intended to be flexible enough to permit ATSICs to tailor their arrangements to suit their own circumstances.[7]

20 So, for example, Pt 44 of the CATSI Act confers various rights and remedies which are designed to protect the interests of members of ATSICs, including the right to seek a Court order concerning oppressive conduct of the affairs of the corporation.[8] The Court has power under s 1665 of the CATSI Act to make a range of orders in relation to an ATSIC, including an order that the corporation's existing constitution be modified or repealed and replaced, an order regulating the conduct of the corporation's affairs in the future, an order appointing a receiver or a receiver and manager of any or all of the corporation's property and an order restraining a person from engaging in specified conduct or from doing a specified act.[9]

21 Those orders may be made if (amongst other things) the conduct of an ATSIC's affairs or an actual or proposed act or omission by or on behalf of such a corporation is either contrary to the interests of the members as a whole or oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members, whether in that capacity or in any other capacity.[10]

22 However, if the corporation in question is a registered native title body corporate, the Court must not make an order under s 1665 of the CATSI Act on the basis of an actual or proposed act or omission of the corporation if an officer or employee of the corporation does (or refrains from doing) or proposes to do (or refrain from doing) the act in good faith and with the belief that doing or refraining from doing the act is necessary to ensure that the corporation complies with a native title legislation obligation (good faith defence).[11]

23 An application for orders under s 1665 of the CATSI Act may be made by a member of the ATSIC in question (even if the act or omission complained of is against that person in a capacity other than as a member of the corporation, or is against another member in that member's capacity as a member) or by a person who has ceased to be a member of the corporation if the application relates to the circumstances in which the person ceased to be a member.[12]

24 The Supreme Court and the Federal Court have jurisdiction with respect to civil matters arising under the CATSI Act.[13]

25 Broadly speaking, in the Supreme Court proceedings, the plaintiffs challenge the validity of three annual general meetings held by the YAC on 15 December 2010 (the December 2010 AGM), 30 November 2011 and 21 March 2012 (the March 2012 AGM). They seek that the Court make various declarations that the notifications of those AGMs were not validly given in accordance with the YAC's Constitution and the CATSI Act, and that special resolutions purportedly passed at the December 2010 and March 2012 AGMs (including as to the appointment of directors and office bearers for the YAC) were invalid.

26 The plaintiffs also seek further relief including, amongst other things, declarations to the effect that since 15 December 2010 the YAC has been without any validly appointed directors or office bearers, and that any decision of the YAC or of its directors rejecting a membership application made to the YAC on or after 15 December 2010 is invalid, injunctions to restrain persons appointed as directors or officers of the YAC on or after 15 December 2010 from holding themselves out as such and from exercising any of the powers of a director or office bearer of the YAC, and orders that the YAC reinstate onto its register of current members certain persons whose names were removed from the register on or after 15 December 2010.

27 The plaintiffs also seek that the Court makes orders for the appointment of a receiver and manager in respect of the property of the YAC for a period of 12 months, with power to decide upon membership applications lodged with the YAC on or after 15 December 2010, with power to investigate the affairs of the YAC from 15 December 2010 and to submit to the Court a draft report for the members of the YAC as to those affairs (with a view to provision of a final report to the members), to convene and conduct a general meeting of the YAC, and with power to make a 'native title decision' (within the meaning of that term in the YAC's Constitution) only with the prior approval of the Court.

28 The grounds for the plaintiffs' application are that the plaintiffs allege that the YAC has acted, and threatened to act, in contravention of the CATSI Act and in contravention of the YAC's Constitution, and in particular that the conduct of the YAC's affairs, actual or proposed acts or omissions by the YAC, or resolutions or proposed resolutions of members of the YAC, are contrary to the interests of the members of the YAC as a whole, or oppressive or unfairly prejudicial to, or unfairly discriminatory against, members of the YAC, whether in their capacity as members or in any other capacity, within the meaning of s 166-1 of the CATSI Act, and that the register of current and former members of the YAC is erroneous and needs to be corrected.

29 The Federal Court proceedings, as I have said, are an application by the Yindjibarndi native title claim group for a determination of native title in relation to the Yindjibarndi Claim Area. There are a number of respondents to that application, including the State of Western Australia and (as a result of a recent application for joinder),[14] FMG. I understand that the Federal Court proceedings are not yet listed for trial.

30 Section 66B(1) of the NT Act permits one or more members of a native title claim group in relation to a claimant application[15] to apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application. The grounds for such an application include that the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it and that the applicants pursuant to s 66B are authorised by the claim group to make the application and to deal with the matters arising in relation to it. The Federal Court may make the order sought by an applicant under s 66B(1) if it is satisfied that the grounds are established.[16]

31 Insofar as the s 66B applications are concerned, the Court was provided with little information in relation to those applications. The affidavit of George Marshall Irving affirmed on 7 August 2012 (on which the defendants relied in support of the transfer application) contained some information in relation to the s 66B applications, and a further three documents were handed up by senior counsel for the defendants during the course of the hearing of the transfer application. Senior counsel also made some submissions about the s 66B applications in the course of the hearing of the transfer application. Insofar as the s 66B applications are concerned, the discussion of those applications below represents what can be discerned from the limited information available to the Court.

32 I understand that an application pursuant to s 66B of the NT Act was filed by the plaintiffs on 2 September 2011 (the plaintiffs' s 66B application). On the basis of the limited information available to the Court, I gather that the basis for the plaintiffs' s 66B application is that the plaintiffs claim that at the 16 March 2011 meeting, it was decided that the current Applicant in the Federal Court proceedings was no longer authorised to represent the Yindjibarndi native title claim group in those proceedings, and that the plaintiffs should be authorised to be the Applicant for the purpose of the Federal Court proceedings.

33 A further s 66B application was filed on 15 June 2012 on behalf of twelve other Yindjibarndi persons (namely all remaining members of the Applicant as named in the Federal Court proceedings, including the second defendant, and some other Yindjibarndi people) seeking orders that those twelve persons be named as the replacement Applicant in the Federal Court proceedings. For convenience I shall refer to that application as 'the Replacement Applicants' s 66B application'.

34 On the basis of the limited information available to the Court, I gather that the basis for the Replacement Applicants' s 66B application is that a meeting of the Yindjibarndi native title claim group was held on 24 March 2012 to consider the issue of who should be authorised by the claim group to be the Applicant in the Federal Court proceedings (the 24 March 2012 meeting). I gather that it is claimed that at the 24 March 2012 meeting it was decided that some of the persons who were initially named as the Applicant in the Federal Court proceedings were no longer authorised to represent the Yindjibarndi native title claim group in those proceedings, and that twelve persons were authorised to apply under s 66B to replace the Applicant in the Federal Court proceedings.

35 Senior counsel for the defendants submitted that if the Replacement Applicants' s 66B application is successful, the Replacement Applicants have indicated that their intention is to appoint the YAC to be the agent for the Applicant in the Federal Court proceedings. Senior counsel for the defendants submitted that in that event the YAC would then be the native title prescribed body corporate which would speak for the native title claim group in respect of negotiations concerning land use agreements in respect of the Yindjibarndi Claim Area as well as the Yindjibarndi Native Title Area.

36 Senior counsel for the defendants advised the Court that the Replacement Applicants' s 66B application was listed for hearing by the Federal Court in October 2012. As at the date of publication of these reasons for decision, judgment in respect of that application remains reserved. Senior counsel for the defendants submitted that if the Replacement Applicants' s 66B application was successful, it was possible (although it was conceded that it was not inevitable) that the plaintiffs' s 66B application would fall away on the basis that whatever decisions may have been reached at the 16 March 2011 meeting, those decisions had arguably been superseded by the decisions reached at the 24 March 2012 meeting.

2. The Court's jurisdiction to transfer matters pursuant to the CATSI Act

37 It is convenient at this point to note the terms of s 586-35 of the CATSI Act. That section relevantly provides:

(1) This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:

(i) a proceeding with respect to a civil matter arising under the Aboriginal and Torres Strait Islander Corporations legislation; ...

(ii) ...; and

(i) the Federal court; or

(ii) a State or Territory Supreme Court.

(2) ... [I]f it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:

(a) the relevant proceeding; or

(b) an application in the relevant proceeding;

to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court.

38 A court may transfer a matter on the application of a party at any stage or of the court's own motion.[17]

39 Section 58635 clearly applies in the present case: the Supreme Court proceeding is a proceeding with respect to a civil matter arising under the CATSI Act and the proposed transferor court is the Federal Court.

40 Accordingly, the question for consideration is whether it appears to the Supreme Court that 'having regard to the interests of justice' it is 'more appropriate' for the Supreme Court proceeding to be determined by the Federal Court.

41 The court considering a transfer application under s 58635 of the CATSI Act must have regard to the principal place of business of any body corporate concerned in the proceeding or application, the place or places where the events that are the subject of the proceeding or application took place and the other courts that have jurisdiction to deal with the proceeding.[18]

42 There are no authorities in relation to the construction and application of s 58635 and related provisions of the CATSI Act. However, provisions in relevantly identical terms to s 58635 and s 58650 of the CATSI Act are contained in s 1337H and s 1337L of the Corporations Act 2001 (Cth) (the Corporations Act). It has been accepted that the factors set out in s 1337L of the Corporations Act are not necessarily determinative of a transfer application,[19] and that they are not the only factors which will be relevant to whether in the interests of justice it is more appropriate to transfer a proceeding from one court to another.[20] Those considerations apply equally in relation to s 58635 and s 58650 respectively of the CATSI Act. Furthermore, the principles which have been developed in relation to the exercise of the court's discretion under s 1337H of the Corporations Act are also, in a general sense, of assistance in the exercise of the discretion under s 58635 of the CATSI Act.

43 Provisions in similar (but not identical)[21] terms to s 58635 are also to be found in the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and the State crossvesting legislation (the crossvesting legislation). The Jurisdiction of Courts (CrossVesting) Act 1987 (Cth) expressly does not apply in relation to proceedings under the CATSI Act[22] but the principles which have been developed in relation to transfer applications under the crossvesting legislation are, in a general sense, of assistance in the application of the discretion in s 58635 of the CATSI Act.

44 Having regard to the principles which have been developed in relation to the application of the transfer provisions in the Corporations Act and the crossvesting legislation, the following observations can be made in relation to transfer applications under s 58635 of the CATSI Act.

45 First, no particular significance attaches to the plaintiffs' choice of forum and a party applying for the transfer of proceedings to another court does not bear any burden of showing that the first court is a clearly inappropriate forum for the resolution of the litigation. A court dealing with a transfer application therefore applies the legislation without any kind of presumption as to where the balance of the interests of justice might lie.[23]

46 Secondly, the interests of justice are not the same as the interests of one party, and the legislation should not be applied in a way that favours the rights of one party to the litigation over another.[24] The interests of justice necessarily include justice to all parties to the proceedings, and it may also be necessary to take into account interests wider than those of the parties to the proceedings. Nevertheless, the interests of the respective parties, which might in some respects be common and in other respects conflicting, will arise for consideration. The 'justice' referred to in s 58635 is not divorced from practical reality.[25]

47 Thirdly, the question whether it is more appropriate, or in the interests of justice, that one court rather than another determine a particular matter will require an analysis of all of the circumstances of the particular case. The decision calls for a 'nuts and bolts' management decision as to which court is the more appropriate to hear and determine the substantive dispute.[26] The sorts of factors which may be relevant to determining which court is the more appropriate to determine the proceedings and where the interests of justice will lie, include questions of efficiency, expense and the specialist nature of one or other court in relation to the subject of the litigation,[27] geographical considerations (such as where the parties, witnesses and evidence are located) and the ability of the other court to deal with all aspects of the matter, the procedures which may be adopted, and any likely delay in dealing with the matter.[28]

48 Fourthly, the existence of related proceedings in separate courts is also a relevant consideration in determining whether in the interests of justice it is more appropriate that a proceeding be transferred from one court to another.[29] Two sets of proceedings are related if there is an interdependency or substantive link or association between the two sets of proceedings or a substantial common question (or questions) in the two proceedings.[30] It may be appropriate, in the interests of justice, to transfer a proceeding to another court which is dealing with a related proceeding because that would avoid the prospect of a repetition of evidence and the risk of inconsistent findings, the duplication of court resources, and wasted costs for the parties in preparing both proceedings at the same time.[31]

49 Finally, whether the transfer of proceedings is in the interests of justice is a value judgment to be made having regard to the circumstances of the case.[32]

50 Having regard to the written and oral submissions of senior counsel for the defendants, the factors on which the defendants relied to demonstrate that in the interests of justice, it is more appropriate for the Federal Court to deal with the Supreme Court proceeding can be distilled to the following:

(i) The Federal Court has the most substantial connection with the dispute the subject of the Supreme Court proceedings because:

(a) the YAC is a prescribed native title body corporate. The decisions it has to make concern native title determinations related to native title issues;

(b) the issues in the Supreme Court proceeding are directly relevant to native title issues generally and because native title issues are primarily the domain of the Federal Court, that Court has the most real and substantial connection with the dispute the subject of the Supreme Court proceeding;

(c) the dispute more generally relates to native title and native title obligations and the Federal Court;

(d) in response to the plaintiffs' allegations in the Supreme Court proceedings, the defendants intend to raise a good faith defence;

(e) the relief sought by the plaintiffs in the Supreme Court proceedings, particularly the appointment of a receiver, has the potential to impact considerably on the conduct of the Federal Court proceedings;

(ii) The plaintiffs' s 66B application is related to the Supreme Court proceedings, or at the least there will be an overlap between the evidence in the plaintiffs' s 66B application and in the Supreme Court proceedings insofar as:

(a) the 16 March 2011 meeting will be the subject of evidence in both proceedings, and in both sets of proceedings it will be necessary to determine whether or not the meeting was a meeting of the Yindjibarndi claim group. There is a risk of inconsistent findings about that meeting if the Supreme Court proceedings are not transferred;

(b) the defendants intend to make an application in both the Supreme Court proceedings and in the plaintiffs' s 66B application, on the same grounds, that each proceeding constitutes an abuse of process;

(c) resources will be better utilised if the Supreme Court proceedings are transferred as there would be no need for duplicating evidence and separate appearances;

(iii) The Supreme Court proceedings and the Federal Court proceedings all arise from a common factual substratum in relation to the dispute within the Yindjibarndi community. All of the disputes arising from that common substratum of facts should be dealt with by the one Court. It is not possible for the Federal Court to transfer the Federal Court proceedings to the Supreme Court (given that the Federal Court has exclusive jurisdiction under the NT Act to make native title determinations), whereas the Federal Court is able to deal with applications pursuant to the CATSI Act;

(iv) Given that the Federal Court is dealing with the Federal Court proceedings involving many of the same parties, against a backdrop of native title issues, and given that the Federal Court has greater expertise in native title disputes, in terms of a 'nuts and bolts' management decision it is appropriate to transfer the Supreme Court proceedings to the Federal Court;

(v) If the matter is transferred to the Federal Court, court ordered mediation could sensibly cover all the issues in dispute between the parties.

4. Whether the proceeding should be transferred to the Federal Court

51 I turn, first, to the factors which under s 586-50 of the CATSI Act must be considered in relation to the transfer application. There was no evidence in relation to the principal place of business of the YAC but the information which is before the Court permits the inference that the YAC's principal place of business is in Western Australia. All of the events the subject of the Supreme Court proceeding took place in Western Australia (and most if not all of them took place in or around Roeburne). The Federal Court clearly has jurisdiction to deal with the Supreme Court proceedings.[33] The impact of these factors in the outcome of the transfer application is neutral: either the Supreme Court or the Federal Court could deal with the dispute the subject of the Supreme Court proceeding.

52 Other than in one respect, namely that of mediation (which I discuss below), there was nothing to suggest that case management considerations (such as flexible case management procedures or the time to trial) meant that it would be in the interests of justice to transfer the Supreme Court proceedings to the Federal Court. Further, although the Federal Court exclusively deals with native title determinations, and clearly has particular expertise in relation to dealing with those matters, the issues of proper corporate governance which arise for consideration in the Supreme Court proceedings are of the kind, or are similar to, issues relating to the conduct of corporations which are regularly dealt with in proceedings in this Court.

53 Little weight should be accorded to some of the considerations to which the defendants pointed in support of the transfer application. Although the context for the dispute the subject of the Supreme Court proceedings is, broadly speaking, one which involves the exercise of native title rights, and while the YAC is a prescribed native title body corporate for the purposes of the NT Act, these considerations do not, of themselves, warrant the conclusion that the Federal Court has the closer connection with the dispute the subject of the Supreme Court proceedings. Senior counsel for the defendants acknowledged as much when she accepted that once the question of who is authorised to be the Applicant in the Federal Court proceedings is resolved, the Supreme Court may be a convenient jurisdiction for the resolution of the dispute which is the subject of the Supreme Court proceedings.[34]

54 Senior counsel for the defendants also submitted that if the plaintiffs were successful in their application (in the Supreme Court proceedings) for the appointment of a receiver to the YAC, that might have an impact upon the Federal Court proceedings (because the appointment of a receiver may affect the ability of the YAC to carry out its native title functions). No weight can be given to that submission, for three reasons. First, regardless of whether the Supreme Court proceedings are transferred, the relief sought by the plaintiffs will include the appointment of a receiver. It is not clear how the identity of the Court dealing with the litigation could have any bearing on whether a receiver should be appointed. Secondly, the appointment of a receiver is a discretionary consideration, and any anticipated adverse consequences of the grant of such relief would no doubt be drawn to the court's attention if and when the time comes to consider any relief which might be granted. Thirdly, it seems to be entirely speculative whether the appointment of a receiver to the YAC would have any bearing at all on the Federal Court proceedings. Much would depend on the timing of the appointment (visavis the stage reached in the Federal Court proceedings) and the duration and terms of the appointment.

55 Counsel for the plaintiffs presented a strong case for why the Federal Court proceedings cannot be considered to be related to the Supreme Court proceedings. There is no identity of the issues in the Federal Court proceedings or the s 66B applications, as compared with the Supreme Court proceedings. (I will return to the question of the evidence which will be adduced in relation to the s 66B applications in a moment.) The issues arising for determination in the Federal Court proceedings concern whether the persons comprising the Applicant for the Yindjibarndi people can establish a native title claim under the NT Act in respect of the Yindjibarndi Claim Area. The issues arising for determination in the s 66B applications broadly concern which persons are authorised by the Yindjibarndi people to act as the Applicant on behalf of the Yindjibarndi native title claimant group. In contrast, the issues arising for determination in the Supreme Court proceedings concern compliance with the requirements of the CATSI Act in respect of various actions and decisions made by the YAC since December 2010.

56 There is no identity of parties in each of the proceedings. The Federal Court proceedings are brought by various persons (including the plaintiffs) on behalf of the Yindjibarndi people, whereas the plaintiffs in the Supreme Court proceedings bring these proceedings in their own right as members of an ATSIC. Although the YAC is a party in the Supreme Court proceedings, it is not a party in the Federal Court proceedings or in the s 66B applications. (Its role in the Federal Court proceedings has been, and depending on the outcome of the s 66B applications, may in the future be, that of the agent for the Applicant in the Federal Court proceedings.) Other parties in the Federal Court proceedings (namely the State of Western Australia, FMG and other corporations) are not parties in, or directly involved in, the Supreme Court proceedings.

57 Having regard to the interests of justice, the considerations to which I have so far referred suggest that it would not be more appropriate that the dispute the subject of the Supreme Court proceedings be determined by the Federal Court. However, there are three considerations that point to the opposite conclusion.

58 First, insofar as the plaintiffs' s 66B application is concerned, the evidence before the Court suggests that there is likely to be an overlap between the evidence in that proceeding, and the evidence which will be led in the Supreme Court proceedings. As I have already noted, the central issue in the plaintiffs' s 66B application is whether the 16 March 2011 meeting resulted in the plaintiffs having the authority of the Yindjibarndi native title claimant group to act as the Applicant in the Federal Court proceedings. Clearly, then, a considerable portion of the evidence in relation to the plaintiffs' s 66B application will concern what took place at the 16 March 2011 meeting. Senior counsel for the defendants submitted that what occurred at the 16 March 2011 meeting will also be the subject of evidence in the Supreme Court proceeding.

59 Counsel for the plaintiffs submitted that in the Supreme Court proceedings the plaintiffs do not contend that the 16 March 2011 meeting was a meeting of the YAC, nor do the plaintiffs seek that the Court make any findings about what occurred at that meeting, or that the Court grant any relief arising from what occurred at that meeting. However, counsel for the plaintiffs did concede that it was possible that some witnesses in the Supreme Court proceedings would refer in their evidence to what occurred at the 16 March 2011 meeting as an explanation for why there was dissatisfaction with the conduct of the YAC, or why certain decisions were made, or actions undertaken, by the YAC or its officers in relation to the plaintiffs. It also seems very likely that evidence about the 16 March 2011 meeting will be led by the defendants in relation to the good faith defence which it was submitted would be advanced on behalf of the defendants in the Supreme Court proceedings.

60 The second consideration which supports the conclusion that it would be more appropriate that the dispute the subject of the Supreme Court proceedings be determined by the Federal Court is that in both the Supreme Court proceedings, and in the plaintiffs' s 66B application, the defendants intend to submit that the proceedings constitute an abuse of process. The foreshadowed basis for the submission[35] is that the institution and maintenance of the Supreme Court proceedings, and, similarly, the plaintiffs' s 66B application, is an abuse of process in that it will be claimed that each proceeding is being funded by FMG and pursued for the purpose of the advancement of FMG's interests, and specifically with the objective of securing a land access agreement between FMG and the Yindjibarndi people. The defendants have indicated[36] that they intend to make a submission that the Court should take into account this alleged abuse of process in deciding whether to grant any discretionary relief in either proceeding.[37]

61 There was little indication of the intended evidentiary basis for the foreshadowed 'abuse of process' submission (or application) in the Supreme Court proceedings and in relation to the plaintiffs' s 66B application, although it seems likely that the evidence relied upon in support of that submission in each proceeding would be the same or very similar in nature.

62 The likely overlap in the evidence concerning the 16 March 2011 meeting which will be relied on in relation to the plaintiffs' s 66B application and in the Supreme Court proceedings, and the likely overlap in the 'abuse of process' submissions which the defendants intend to make in both proceedings, together with the potential for the duplication of resources in adducing the same evidence on these issues twice, and the possibility of inconsistent findings, provide strong support for the conclusion that in the interests of justice it would be more appropriate for the Federal Court to determine the dispute the subject of the Supreme Court proceedings.

63 The third consideration which supports the same conclusion is the fact that the s 66B applications and the Supreme Court proceedings stem from a broader dispute about decision making on behalf of the Yindjibarndi community, so that there is a common substratum of facts by way of the background to each of those proceedings. In these circumstances, two observations can be made. The first is that it is eminently desirable that the more general dispute about decision making within the Yindjibarndi community, and specific instances of that dispute which have manifested in the s 66B applications and the Supreme Court proceedings, be resolved by the Yindjibarndi people themselves (if necessary or possible, with such mediation assistance as courts may provide). That leads to the second observation which is that it seems likely that the prospect of a mediated settlement in relation to the dispute the subject of the Supreme Court proceedings would be enhanced if that mediation were able to deal with other issues relating to the broader question of decision making on behalf of the Yindjibarndi people. It is true that at a mediation of the Supreme Court proceedings broader issues could be canvassed apart from those issues directly arising from the action in this Court. However, in order to ensure that all parties interested in the broader dispute are parties to the mediation, and that all issues in dispute between those parties are able to be resolved at a mediation, it would be preferable that a mediation encompass both the dispute the subject of the Supreme Court proceedings and the dispute at the heart of the plaintiffs' s 66B application.

64 It will be immediately apparent that the relevance of the latter three considerations is contingent upon the plaintiffs' s 66B application ultimately being pursued. As I have already noted, senior counsel for the defendants submitted that that may depend upon the outcome of the Replacement Applicants' s 66B application (on which judgment is presently reserved) because it is contended in that application that the 24 March 2012 meeting determined the question of which persons were authorised by the Yindjibarndi native title claimant group to appear on their behalf in the Federal Court proceedings. Senior counsel for the defendants submitted that if that contention is accepted, that would arguably render redundant the plaintiffs' s 66B application.

65 Senior counsel for the defendants conceded that the transfer application drew heavily on the plaintiffs' s 66B application, and that that application might not ever proceed to a hearing. In that sense, the transfer application is premature. Senior counsel for the defendants effectively recognised that to be so when she submitted that it might be preferable if the transfer application was adjourned partheard, and she later made a formal application (which the plaintiffs opposed) to adjourn the transfer application, pending the outcome of the Replacement Applicants' s 66B application.[38] I dismissed that application, for reasons including that there was no indication as to the likely time frame within which a decision on the Replacement Applicants' s 66B application might be given, and because it may be open to the defendants to make a further transfer application, if (following the determination of the Replacement Applicants' s 66B application) the circumstances warranted that course.

66 The fact that the plaintiffs' s 66B application may not be pursued means that the considerations which I have identified as weighing in favour of the transfer application cannot presently be afforded any, or any significant, weight. If the plaintiffs' s 66B application is not pursued then as I have outlined above, the position will be that the Federal Court will be dealing with a native title claim, whereas the Supreme Court will be dealing with issues concerning the management of an ATSIC.

67 In these circumstances, for the reasons I have set out above, it does not appear that it can, at present, be said that having regard to the interests of justice it would be more appropriate if the dispute the subject of the Supreme Court proceedings were to be determined by the Federal Court.

68 For these reasons, the transfer application should be dismissed.

[1] See Daniel v Western Australia [2005] FCA 536; see also Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148.

[2] Pursuant to the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

[4] Regulation 6 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

[5] See s 24BA, s 24BC, s 24BD(1), s 25(1), s 29(2), s 30, s 31 and s 33 of the NT Act.

[6] The changes to the issues identified in that document were reflected in a Minute of Proposed Substituted Notice of Originating Motion.

[7] Commonwealth, Parliamentary Debates, House of Representatives, 23 June 2005, 12 13 (Mr Warren Entsch).

[13] Section 5865(1) and (2) of the CATSI Act.

[14] Affidavit of Janette Tavelli sworn 28 August 2012, annexure JT9.

[15] A 'claimant application' is defined to mean a native title determination application that a native title claim group has authorised to be made.

[19] See, for example Re Terranora Leisuretime Sales Pty Ltd [1991] NTSC 15; (1991) 9 ACLC 1,111, 1,113 (McLelland J, citing with approval JN Taylor Finance Pty Ltd v BCF (Bond Corporation Finance) Ltd (1991) 55 SASR 428, 434 (Debelle J)).

[20] See, for example, Matyear v Primex Technologies Pty Ltd [2006] NSWSC 1350 [6] (Barrett J).

[21] There are some important differences between the transfer provisions in s 5 of the crossvesting legislation and s 58635 of the CATSI Act. By way of example, under s 58635 of the CATSI Act the court retains a discretion as to whether to transfer a proceeding, whereas under s 5 of the crossvesting legislation, if the prerequisites for a transfer exist (such as that it is in the interests of justice that the proceedings be determined by another court) the court must transfer proceeding and no question of discretion arises: BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh & Heydon JJ), 434 [62] (Gummow J, Hayne J agreeing (468) [177]), 481 [222] (Callinan J).

[23] Cf BHP Billiton Ltd v Schultz (421 422) [14] [16], (425) [25] (Gleeson CJ, McHugh & Heydon JJ) (436) [69], (437) [72], (439) [77] (Gummow J, Hayne J agreeing (468) [177]), (465 466) [167] [169] (Kirby J); Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 727 (Rogers AJA, Street CJ agreeing).

[24] Cf BHP Billiton Ltd v Schultz (421) [15] (Gleeson CJ, McHugh & Heydon JJ), 466 [169] (Kirby J), 481 [222], 492 [258] (Callinan J).

[25] Cf BHP Billiton Ltd v Schultz (421) [15] (Gleeson CJ, McHugh & Heydon JJ).

[26] Cf BHP Billiton Ltd v Schultz (420 421) [13] (Gleeson CJ, McHugh & Heydon JJ, citing Bankinvest (713 714) (Street CJ)).

[27] Cf BHP Billiton Ltd v Schultz (421 424) [15] [21], (426 427) [28] (Gleeson CJ, McHugh & Heydon JJ); see also Australian Zircon NL v Austpac Resources NL [2010] WASC 166 [35] [36] (Corboy J).

[28] Bourke v State Bank of New South Wales (1988) 22 FCR 378, 394 (Wilcox J).

[29] See also s 58635(7) of the CATSI Act.

[30] Mattock v Mattock (1989) 97 FLR 112, 114 (McLelland J); Leithead v Leithead (1991) 109 FLR 177, 182 (Murray J).

[31] Winpar Holdings Ltd v National Consolidated Ltd [2001] FCA 1663 [2] (Allsop J); Central Bore Nickel NL v Richfile Pty Ltd (1995) 16 WAR 230, 233 (Ipp J); Huntingdale Village Pty Ltd (Receivers and Managers appointed) v Perpetual Nominees Pty Ltd (Receivers and Managers appointed) [2009] FCA 1323 [29] (Gordon J).

[32] Seymour v Devine and Ors [2003] WASC 260 [10] (Pullin J, citing Dawson v Baker (1994) 120 ACTR 11, 14 and Hoddell v Hoddell Pty Ltd [1999] WASC 156 [17] (Murray J)).

[35] See the Defendants' SIFC dated 23 November 2012 at pars 128 129.

[36] Defendants' SIFC dated 23 November 2012 at par 134.

[37] I digress to observe that a submission that a proceeding is an abuse of the Court's process would raise a more fundamental question of whether the Court should permit the matter to proceed at all; see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256, 265 267 [10] [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).