Pursuant to r 9.05 of the Federal Court Rules 2011 (Cth), Margaret Hornagold, Christine Malone, Dorothy Daylight, Brent Daylight, Chereta Daylight and the Daylight United Aboriginal Corporation (ICN 10168) be joined as interested parties (the Daylight Interested Parties).
Orders 1 and 2 of the Orders of the Court made on 2 March 2023 be set aside.
The funds held by the Court on behalf of B&M Aboriginal Corporation (ICN 9678) pursuant to Orders 3 and 5 made by the Court on 3 February 2023, plus any interest accrued from the funds being held by the Court, be paid to Bruce Gleeson in his capacity as voluntary administrator of B&M Aboriginal Corporation (ICN 9678).
Rule 17.01(2) of the Federal Court Rules 2011 (Cth) be dispensed with, with respect to any parties to the proceedings who are not members nor disputed members of B&M Aboriginal Corporation (ICN 9678), being:
4.1 QGC Pty Limited;
4.2 Natalie Alberts;
4.3 Kenneth Bone;
4.4 Mona Booth;
4.5 Lillian Colonel;
4.6 Patricia Conlon;
4.7 William Davis;
4.8 Elizabeth Doyle Johnston;
4.9 Kylie Jerome;
4.10 Edna Malone;
4.11 Christine Malone;
4.12 Margaret McLeod;
4.13 Kathleen Ott;
4.14 BCJWY Aboriginal Society Limited;
4.15 Murra Downs Ltd;
4.16 Boonyi Downs Pty Ltd.
The Daylight Interested Parties' application for orders sought in paragraphs 2 - 6 of their interlocutory application lodged on 9 February 2024 be dismissed.
B&M Aboriginal Corporation (ICN 9678) and the Daylight Interested Parties bear their own costs of the interlocutory applications lodged on 1 December 2023 and 9 February 2023 respectively.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[2]
SARAH C DERRINGTON J
1 B & M Aboriginal Corporation (ICN 9678) is an Interested Person in these proceedings which concern an Indigenous Land Use Agreement (ILUA) that was registered on 22 December 2010 (registered as QI2010/006). The history of disputes arising in relation to the ILUA, which I do not propose to repeat, is found in several judgments of Rares J: Conlon v QGC Pty Limited (No 2) [2017] FCA 1641; 359 ALR 460; QGC Ltd v Alberts [2020] FCA 1869; QGC Ltd v Alberts (No 2) [2021] FCA 540; QGC Ltd v Alberts (No 3) [2022] FCA 141; 404 ALR 493; QGC Ltd v Alberts (No 4) [2022] FCA 1590.
2 At issue in the interlocutory applications heard today is the consequence of orders made by Rares J on 3 February 2023 (the Rares J Orders) in the following relevant terms:
It be declared that Trevor Hauff Lawyers has an equitable right to be paid the sum of $299,384.18 out of the funds paid into Court by the applicant before any other distribution of those funds, being for solicitor/client costs as certified in the certificate of taxation issued by the Registrar on 25 July 2022.
The applicant pay the 2022 and 2023 annual payment required under clause 3.1(c) of the Indigenous Land Use Agreement included on the register of the National Native Title Tribunal as QI2010/006 (ILUA) into Court on or before 8 February 2023.
The funds paid into Court by the applicant plus any interest accrued from the funds being held by the Court be distributed by the Court through the process set out in Order 4 to the entities noted below as follows:
(a) first, $299,384.18 be paid to Trevor Hauff Lawyers, being for solicitor/client costs as certified in the certificate of taxation issued by the Registrar on 25 July 2022; and
(b) secondly, the balance be distributed by payment in 11 equal shares to each of the [named] entities [which relevantly included B & M].
…
Subject to each entity listed in order 3(b) continuing to meet the requirements for being a Nominated Entity in accordance with the ILUA, the remaining payments to be made by [QGC] in accordance with the terms of the ILUA, be paid by [QGC] in 11 equal shares to the respective bank accounts of those entities as notified to [QGC] as when they become due.
3 By its interlocutory application lodged on 1 December 2023 (B & M IA), B & M seeks:
(a) to set aside Orders 1 and 2 made by Meagher J on 2 March 2023, which required B & M to provide a resolution in accordance with its rule book notifying the Court of its bank account details, and suspending the operation of Orders 3 and 4 of the Rares J Orders pending receipt of that resolution;
(b) a direction that the funds held by the Court on behalf of B & M pursuant to Orders 3 and 5 of the Rares J Orders, plus any interest accrued from the funds being held by the Court, be paid to Bruce Gleeson in his capacity as voluntary administrator of B & M;
(c) an order that r 17.01(2) of the Federal Court Rules 2011 (Cth) be dispensed with, with respect to any parties in the proceedings who are not members nor disputed members of B & M.
4 By their interlocutory application lodged on 9 February 2024, and later amended pursuant to leave granted 15 February 2024, Margaret Hornagold, Christine Malone, Dorothy Daylight, Brent Daylight, Chereta Daylight and the Daylight United Aboriginal Corporation (ICN 10168) (DUAC), together - the Daylight Interested Parties - agitate for a declaration that DUAC is the new Nominated Entity in substitution for B & M. Further, (Daylight Interested Parties IA), they seek:
(a) pursuant to r 9.05 of the Rules, to be joined as interested parties;
5 I interpolate that this Order is not opposed.
(b) that the B & M IA be struck out and dismissed;
(c) pursuant to r 39.05(c) of the Rules, Order 3(b)(iv) of the Rares J Orders be amended to replace B & M with DUAC;
(d) a direction that the funds in Court held previously on behalf of B & M pursuant to Order 3(b) and the funds held by QGC pursuant to Order 5 of the Rares J Orders, plus any interest accrued, be paid to DUAC upon notification in accordance with Order 4(b) of the Rares J Orders; and
(e) an order that the administrator, Mr Bruce Gleeson, pay the costs of Trevor Hauff Lawyers in respect of his application on an indemnity basis.
6 The ILUA was signed by 14 persons on behalf of several families listed in the definition of the collective term, "Native Title Party": QGC (No 2) at [7]. As is required by the legislative scheme, the Native Title Party nominated an entity as the "Nominated Entity" under the ILUA. That entity was the BCJWY Aboriginal Society Ltd, which had been incorporated for that purpose on 6 April 2011.
7 On 18 May 2018, QGC commenced these proceedings and interpleaded because of its concerns about BCJWY's capacity to receive and administer the distribution of funds payable under the ILUA. BCJWY was placed into administration on 2 March 2019 and, on 5 July 2019, into liquidation: QGC (No 2) at [12].
8 Relevantly, cll 1 and 2 of annexure 3 to the ILUA provide:
1 Nominated Entity
1.1 The Parties agree to establish the Nominated Entity to be used for the purposes of holding the Financial Benefits provided under this Agreement for the Families.
1.2 The Nominated Entity must be an entity created at law and must be … :
(a) an incorporated body:
(i) whose membership or shareholding is restricted by its constitution to members of the Families;
(ii) which is not in administration, receivership or liquidation under any laws applicable to the incorporated body;
(iii) which the Native Title Party has agreed is a Nominated Entity for the purposes of this Agreement; and
(iv) which exists at the date of this Agreement or is established by the Families for the purposes of this Agreement; or
(b) a trust:
…
2 Nomination of the Nominated Entity
2.1 As soon as practicable after the later of:
(a) the Authorisation Date; or
(b) the establishment of the Nominated Entity, if there is no Nominated Entity at the Authorisation Date or, if at any time thereafter, the Nominated Entity for any reason has ceased to be capable of acting in accordance with clause 1.2;
the Native Title Party, on behalf of the Families, must notify QGC in writing of the name and address of the Nominated Entity.
2.2 Once the Nominated Entity has been established and all signatories to this Agreement have provided written notice and direction to transfer the Benefits to the Nominated Entity, QGC will transfer the Benefits to the Nominated Entity in accordance with this Annexure and this Agreement.
2.3 In the event that the Nominated Entity has not been established by 31 December 2010 and provided the Registration Date has passed by that date, the Parties agree that the Financial Benefits will be transferred to Gadens Lawyers' trust account to be held on trust in accordance with the terms of this Agreement.
9 The words in italics in cl 2.1(b) above give effect to the declaration made by Rares J on 29 April 2021 in QGC (No 2) that the ILUA:
on its proper construction, includes after the words "the establishment of the Nominated Entity, if there is no Nominated Entity at the Authorisation Date" the following implied term, namely "or, if at any time thereafter, the Nominated Entity for any reason has ceased to be capable of acting in accordance with clause 1.2."
10 As a consequence of its liquidation, BCJWY could no longer meet the requirement of cl 1.2(a)(ii) of annexure 3 of the ILUA. On 28 May 2021, Rares J made orders which, inter alia, were directed at facilitating the assistance of the National Native Title Tribunal to the Queensland South Native Title Service in performing the latter's functions under s 203BF(1)(a) of the Native Title Act 1993 (Cth) (NTA) to assist the 11 families, as defined in cl 1.1 of the ILUA, to reach agreement regarding the establishment of one or more Nominated Entities.
11 The Daylight Family, being one of those families, convened a meeting and, on 2 February 2022, B & M was registered with ORIC.
12 By the time of the judgment in QGC (No 4) on 23 December 2022, relevant to these interlocutory applications, Rares J had found that a notice given by the Native Title Party to QGC under cl 2.1 will satisfy the requirements of cl 2.2 for a notification and direction: QGC (No 4) at [28]. Such a notice was in evidence before me, recording "B&M Aboriginal Corporation ICN 9678 as the Nominated Entity for the Daylight Family". Further, Rares J found that 8 of the nominated entities had yet to give QGC details of any bank account to enable it to make payments but, that once that had been done, the nominated entities will have complied with the Entity Establishment Orders his Honour had made on 28 May 2021. His Honour also found that the sum held in Court should be distributed to the 11 nominated entities in equal one-eleventh shares and that each of the 11 nominated entities is liable for its one eleventh share of Trevor Hauff Lawyers' costs out of the moneys held in Court and any moneys due but unpaid by QGC: QGC (No 4) at [76].
13 The Daylight Interested Parties sought to have the question of the standing of B & M to bring the B & M IA determined as a preliminary issue. The Daylight Interested Parties contended that, because B & M was in administration and could therefore no longer be a Nominated Entity within the meaning of cl 1.2(a)(ii) of annexure 3 of the ILUA, it did not have standing to bring B & M IA, nor is it eligible to be paid under Order 3(b) and Order 5 of the Rares J Orders. The Daylight Interested Parties contended that this conclusion flowed necessarily from the wording of Order 5:
Subject to each entity listed in order 3(b) continuing to meet the requirements for being a Nominated Entity in accordance with the ILUA, the remaining payments to be made by [QGC] in accordance with the terms of the ILUA, be paid by [QGC] in 11 equal shares to the respective bank accounts of those entities as notified to [QGC] as when they become due.
(Emphasis added.)
14 I do not accept that contention as the proper construction of the Rares J Orders. Those Orders dealt with two groups of funds: the annual 2022 and 2023 payments which were ordered to be paid into Court by QGC on or before 8 February 2023 pursuant to Order 2 (present funds); and those funds which were to be paid in the future by QGC pursuant to Order 5 (future funds).
15 Order 3(b) required the present funds to be distributed to the 11 entities listed in Order 3(b), which included B & M, in 11 equal shares. There is no dispute that, as at the date of the Rares J orders, B & M was a Nominated Entity and had not yet entered administration. The voluntary administration commenced on 14 September 2023. By that point, the entitlement to those funds had crystallised. It was the property of B & M, and due performance of the administrator's duties to the company in administration requires the interests of creditors in any such property to be taken into account (Australian Securities and Investments Commission (ASIC) v Bettles [2023] FCA 975 at [431], quoting Hausmann v Smith (2006) 24 ACLC 688 at [12]). The administrator also deposed in his affidavit lodged 1 December 2023 in the proceeding NSD1460/2023, at [54], that, "provided the funds held in Court … are paid" to B & M, he intended on recommending that the voluntary administration should end. B & M, through its administrator, has standing to seek an order giving effect to Order 3(b) of the Rares J Orders.
16 The future funds were to be paid out to the 11 entities only in so far as those entities continued to meet the requirements of cl 1.2(a)(ii). It is not disputed that B & M no longer meets those requirements as a company in administration. It makes no claim to the future funds.
17 To the extent that the Daylight Interested Parties contended that such a conclusion would be contrary to the decision of Rares J in QGC (No 2), in which his Honour emphasised cl 1.2(a)(ii) of annexure 3 of the ILUA, at [9], and observed, at [54], that the ILUA had no express clause that dealt with the situation where the previous nominated entity ceases to be able to carry out its functions and is in liquidation, I reject that submission. As noted previously, there is no dispute that a company in administration cannot be a Nominated Entity. The question Rares J was dealing with in QGC (No 2) was determining the consequences of the sole Nominated Entity going into liquidation where payments from QGC to the Nominated Entity were pending. That is not the same issue that is before this Court. In the present case, there are extant, albeit suspended, Orders that payment out of Court be made to B & M, which was, at the time of those Orders, neither in administration nor insolvent, and was entitled to those funds as its property.
18 Consequently, in so far as the Daylight Interested Parties IA seeks an order that the B & M IA be struck out and dismissed, such an order must be refused. Correlative orders should be made granting the orders sought by the B & M IA.
19 In so far as the Daylight Interested Parties sought a declaration that DUAC is the Nominated Entity for the Daylight Family under the ILUA and that Order 3(b)(iv) of the Rares J Orders be amended to replace B & M with DUAC, I decline to make such a declaration on this application. It is not apparent that there is any live dispute between the administrator of B & M and the Daylight Interested Parties as to whether DUAC has been validly appointed as the Nominated Entity. Although I was told from the bar table that QGC was aware of the applications and had declined to appear, I was not taken to any evidence to support that assertion. Further, it is possible that a dispute still exists as between the former Directors of B & M and the Directors of DUAC: Affidavit of Elwyn Margaret Hornagold dated 14 August 2023 at [35].
20 B & M, having been successful in its application, sought its costs. The Daylight Interested Parties urge that there be no order as to costs, relying on s 85A of the NTA. As counsel for the Daylight Interested Parties submitted in their written submissions on costs, the original complaint in relation to B & M has stemmed from an internecine dispute which has resulted in B & M being put into administration, and which has not yet been the subject of any judicial determination. The sad consequence of the conduct of these proceedings is that most of the funds that should be available to the family members for whose benefit the ILUA was established will be consumed by the fees of lawyers and corporate administrators.
21 In all the circumstances, it is appropriate that each party bear their own costs of the B & M IA and the Daylight Interested Parties IA.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.