QGC Pty Limited v Bygrave - [2010] FCA 659 - FCA 2010 case summary — Zoe

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QGC Pty Limited v Bygrave

[2010] FCA 659

Federal Court of Australia|2010-06-23|Before: Reeves J

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Source facts

Court

Federal Court of Australia

Decision date

2010-06-23

Before

Reeves J

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

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INTRODUCTION 1 Queensland South Native Title Services Limited has applied to be made a party in these proceedings. It relies upon s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which provides: (1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Federal Court or the Federal Magistrates Court under this Act, may apply to the court to be made a party to the application. (2) The court may, in its discretion: (a) grant the application either unconditionally or subject to such conditions as it thinks fit; or (b) refuse the application. 2 As the Full Court made clear in United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 ("US Tobacco") at 526, there are two matters to be considered in an application of this kind. In order, they are:

whether Queensland South has a sufficient interest in the decision the subject of these proceedings; and
if it does, whether I should exercise my discretion to allow it to be made a party in the proceedings.

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the decision the subject of these proceedings 3 Before turning to consider these two matters, it is appropriate to provide some background to the decision which is the subject of these proceedings. 4 The second respondents, on behalf of the Iman People, are together the registered native title claim group in a native title determination application made under s 61 of the Native Title Act 1993 (Cth) ("the Act"). That claim is known as the Iman #2 claim. 5 Queensland South is a recognised representative body under s 203AD of the Act. As such, it has been given responsibility for representing the interests of native title holders in the area of southern Queensland. That area includes the claim area of the Iman #2 claim. 6 QGC Pty Limited, the applicant in these proceedings, wishes to develop a liquefied natural gas project in the Surat Basin in southern Queensland on land which includes the claim area of the Iman #2 claim. To do so, and address the future act requirements of the Act, QGC has negotiated an Indigenous Land Use Agreement ("ILUA") with the Iman People in relation to the whole of the claim area. 7 That Agreement has been signed by eight of the nine persons comprising the native title claim group in the Iman #2 claim. The ninth person, Ms Madonna Barnes, refuses to sign it. Notwithstanding this, on 9 March 2010, QGC applied to the Native Title Registrar to have the Agreement registered on the Register of ILUAs under s 24CG of the Act. 8 On 20 April 2010, a duly appointed Delegate of the Registrar refused to give notice of the Agreement under s 24CH of the Act. Since such a notice is an essential pre-condition for the registration of an agreement as an ILUA, the Delegate's refusal is tantamount to a refusal to register the Agreement as an ILUA. 9 The key reason for the Delegate's refusal to give this notice was her conclusion that, since Ms Barnes had not signed the Agreement, it did not comply with the requirements of s 24CD(1) of the Act, which are part of the pre-conditions for the Agreement meeting the requirements for an ILUA under s 24CA of the Act. Section 24CD(1) of the Act relatively provides: "All persons in the native title group … must be parties to the agreement". 10 QGC has filed these proceedings to challenge the correctness of the Delegate's decision. It relies upon s 5 of the Administrative Decisions (Judicial Review) Act 1977 and s 39B of the Judiciary Act 1903 (Cth). 11 The Delegate is the first respondent to these proceedings and, as I have already mentioned, the second respondents are the native title claim group in the Iman #2 claim. 12 A couple of other aspects of these proceedings should be mentioned at this stage. The first is that the second respondents have issued a cross-claim in these proceedings seeking an order against Ms Barnes that she forthwith sign the Agreement. Thus, while Ms Barnes has been named as one of the second respondents - because she is a member of the native title claim group - she has been separately named as a cross-respondent to this claim by the other eight second respondents. I should add that, thus far, Ms Barnes has appeared in person, or by telephone link and has not been represented by a legal practitioner. 13 The second is that, because all of the parties either agreed that this matter was urgent or, in Ms Barnes' case, did not oppose it being dealt with urgently, I have set the proceedings down for hearing on Thursday, 24 June 2010. This means that I have had to determine this application with some urgency.

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what is the requisite Sufficient interest? 14 I now turn to the first of the two matters that needs to be considered in an application of this kind: whether Queensland South has a sufficient interest in the decision the subject of these proceedings to justify it being made a party. 15 Mr O'Gorman SC, for Queensland South, submitted that it had a sufficient interest in its capacity as the recognised representative body having responsibility for that part of the State of Queensland that includes the area the subject of the Agreement. As such, he submitted, Queensland South has a number of functions under Pt II Div 3 of the Act, specifically those set out in s 203B. They include the following:

the facilitation and assistance functions described in s 203BB;
the dispute resolution functions described in s 203BF;
the agreement-making functions described in s 203BH. 16 Mr O'Gorman also relied upon the affidavit of Mr Kevin James Smith, the Chief Executive Officer of Queensland South. In that affidavit, Mr Smith stated that, in discharging its functions under the Act, Queensland South is involved in "numerous drafting, negotiation, inter-Indigenous and intra-Indigenous dispute resolution, notification, authorisation, certification, and other activities related to the making of ILUAs" within its area of responsibility. Mr Smith also claimed the Court's construction of s 24CD and other provisions of the Act "could have broad implications for [Queensland South's] constituents and clients … and affect how [Queensland South] delivers its services and performs its legislative functions". He added that this "may affect the way in which [Queensland South] must prioritise and allocate resources in order to perform its functions in a timely and efficient manner". 17 Ms Barnes essentially supported Mr O'Gorman's submissions on this and the discretionary aspect. 18 Mr Rangiah SC for the second respondents (excluding Ms Barnes) submitted that Queensland South did not have a sufficient interest to justify it being joined as a party in the proceedings. He submitted that Queensland South was in no different a position to every other representative body in Australia in relation to the discharge of its functions and it held no greater interest than an ordinary member of the public. He also submitted that Mr Smith's affidavit was expressed in terms of what "may" or "could" happen to Queensland South and, in that sense, he was quite vague as to the nature of the interests it had. 19 Neither Mr Hiley QC, for QGC, nor Mr Hardman, for the Delegate, made any submissions on this application.

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Queensland South does have a sufficient interest 20 First, I do not consider the cases to which I was referred, that deal with the nature of a relevant interest for the purposes of becoming a party to native title proceedings under s 84(5) of the Act (Munn v State of Queensland [2002] FCA 78, Kooma People v State of Queensland [2002] FCA 86 and Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365), provide any assistance in determining what is a sufficient interest for the purposes of s 12 of the Administrative Decisions (Judicial Review) Act 1977. The circumstances in those cases were quite different: a recognised representative body applying to become a party to a native title determination application; and the relevant provisions of the two pieces of legislation are different in their terminology: "person interested" in the latter Act, "a person's interests may be affected" in the former Act. 21 Instead, I consider the apposite decision on the nature of the requisite sufficient interest for the purposes of s 12 of the Administrative Decisions (Judicial Review) Act 1977 is the Full Court's decision in US Tobacco. There, the Court described that interest in these terms (at 527): The term "interest" has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person. 22 And further (at 528): There are sound reasons why the expression should not be extended to include a member of the public who does not have a grievance which he or she will suffer beyond that which he or she has as an ordinary member of the public. Otherwise, anyone at all could apply for review of a decision under a Commonwealth enactment and for a statement under s 13 of the Judicial Review Act of the findings on material questions of fact and the reasons for the decision in question even though the decision may not affect the person beyond being merely emotionally or intellectually concerned or interested in the decision. 23 Taking into account these observations, particularly the non-restrictive nature of the criterion prescribed by s 5 of the Administrative Decisions (Judicial Review) Act 1977 and the breadth of the term "interest", I consider Queensland South, in its capacity as the recognised representative body under the Act with responsibilities for the area to which the Agreement relates, does have a sufficient interest in the decision to which these proceedings relate. 24 Without delving into the central issue that has to be determined in these proceedings, I consider that the question whether a majority of the native title group, as distinct from an unanimity of it, meets the requirements of s 24CD(1) of the Act, is likely to affect the number and diversity of the native title holders, or groups of native title holders, Queensland South is required to represent as the representative body for the area of southern Queensland. That, in turn, will have implications for the way in which Queensland South discharges its functions under the Act. Without being exhaustive, that is likely to include the number and diversity of the native title holders it has to:

assist and represent, in discharging its facilitation and assistance functions under s 203BB(1)(b);
consult with and have regard to the interests of, in discharging its agreement-making function under s 203BH(2); and
assist and mediate between, in the discharge of its dispute resolution functions under s 203BF. 25 Queensland South's ability to satisfactorily perform these, and its other functions under the Act, is quite important for it, not the least because any failure to do so is a ground under s 203AH(2)(a) upon which the relevant Minister can act to withdraw its recognition as a representative body. In this respect, it is also important to note that: Queensland South is expressly required by the Act to perform all its functions in a timely manner (see s 203BA(1)); and it has an express function to promote understanding among people living in its area of operation about matters relevant to the operation of the Act (see s 203BJ(c)). 26 In my view, these matters therefore give Queensland South a demonstrable and direct interest which goes beyond a mere emotional or intellectual concern in the decision the subject of these proceedings. Further, this interest is such that it sets Queensland South apart from an ordinary member of the public and from being a "mere intermeddler or busybody". Finally, I do not consider the fact that this interest may not be peculiar to Queensland South, in that all other recognised representative bodies in Australia may have a similar interest in these proceedings, detracts from this conclusion. I therefore consider Queensland South has the requisite sufficient interest to satisfy the first of the two matters that I have to consider in this application.

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the discretionary matter - who was the solicitor on the record? 27 The second matter, ie the discretionary matter, has caused me much more difficulty. It involves the question whether a conflict of interest may arise if Queensland South were to become a party to these proceedings. 28 Before I go to the details of this matter, I need to record certain events that occurred after I initially reserved my decision on Queensland South's application. 29 During submissions on its application, Queensland South's counsel told me that it was the "solicitor on the record" for the applicants in the Iman #2 claim. Accordingly, the submissions at the initial hearing proceeded on the assumption that it was Queensland South itself that may have any relevant conflict of interest if it were to become a party to these proceedings. 30 However, after I reserved my decision, it soon became apparent that, since Queensland South was not a "solicitor" in any sense of the word, it could not be the "solicitor on the record" in the Iman #2 claim. Then, on checking the Court file, it emerged that, according to a Notice of Change of Solicitor filed in the Court on 12 September 2008, the current solicitor on the record for the applicants in the Iman #2 claim was the Principal Legal Officer of Queensland South; and not Queensland South itself. Further, I was aware from an affidavit (filed 18 May 2010), filed in support of this application, that Mr Shahzad Rind claimed he was the Principal Legal Officer of Queensland South. It followed from this, that it must be Mr Rind who owed the relevant fiduciary duties, as solicitor, to the second respondents, and it must be he who may have the conflict of interest that was said to arise if Queensland South were to become a party to these proceedings. 31 Upon these things becoming apparent, I arranged to relist this application to allow the parties, and also Mr Rind, to make further submissions directed to this new information. Thereafter, a number of things occurred. 32 First, on Friday, 18 June 2010, after I relisted this application, Queensland South filed a Notice of Change of Address for Service stating that Ms Deanne Cartledge of Gilkerson Legal acted as the solicitor for Queensland South in these proceedings. The original notice of motion that Queensland South filed on 18 May 2010, was signed by Mr Rind as its Principal Legal Officer. 33 Secondly, at the resumed hearing of Queensland South's application on Monday, 21 June 2010, Mr Hunter, of counsel, appeared for Mr Rind and obtained leave to file and rely upon an affidavit affirmed by him on 21 June 2010. In that affidavit, Mr Rind sought to correct various statements made by him in his affidavit of 18 May 2010. In particular, he sought to correct his statement that he was the Principal Legal Officer of Queensland South and he sought to explain why he had signed the notice of motion on 18 May 2010 identifying himself as the Principal Legal Officer for Queensland South. In short, his explanation was that, while his designated job title at Queensland South was "Principal Legal Officer", he was still in the process of applying to be admitted as a legal practitioner of the Supreme Court of Queensland. He said he was making that application based upon his previous admission, in 2000, as a barrister and solicitor of the Supreme Court of Western Australia and the fact his name was entered on the Roll of Practitioners of the High Court of Australia, in 2001. He said that, in identifying himself as the "Principal Legal Officer" of Queensland South, he only intended to refer to his designated job title and not his status as a legal practitioner in Queensland. He added that he expected to obtain an open practising certificate as a solicitor from the Queensland Law Society on 1 July 2010 and thereafter expected he would formally assume the role of Principal Legal Officer of Queensland South. 34 Having given this explanation, Mr Rind said: "In hindsight, I should not have identified myself as 'Principal Legal Officer' in my affidavit or signed the notice of motion on behalf of [Queensland South]. I unreservedly apologise to this Honourable Court, the parties to the proceedings and their legal representatives for any confusion that I have caused". Later in his affidavit, Mr Rind said, based on information provided to him by Mr Smith, the Chief Executive Officer of Queensland South, he believed that Mr Colin Stanley Hardie was the solicitor on the record for the applicants in the Iman #2 claim and that Mr Hardie would remain in that role until 30 June 2010, when he expected to obtain his open practising certificate. 35 Mr Rind concluded his affidavit by stating that: "I have informed [Queensland South] and wish to inform this Honourable Court that I do not intend to be involved in any way in advising or instructing [Queensland South], its legal officers and Counsel, in relation to its motion for joinder as a party to the proceeding and, if so joined, in relation to any submissions that [Queensland South] may wish to make in the proceedings". 36 It is to Mr Rind's credit that he has promptly disclosed to the Court the error he thought he had made and that he has apologised to the Court for that error. However, since he is admitted as a legal practitioner in the Supreme Court of Western Australia and has had his name entered on the Roll of Legal Practitioners of the High Court of Australia, I very much doubt whether he is not entitled to act as the "solicitor on the record" in any Federal Court proceedings: see ss 55B to 55D of the Judiciary Act 1903 and APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [22] per Gleeson CJ and Heydon J. Nonetheless, I will proceed to deal with the matter on the basis put forward in Mr Rind's affidavit, viz that he needs to obtain an open practising certificate before he is entitled to act as the "solicitor on the record" in any Federal Court proceedings. 37 Thirdly, during the resumed hearing of Queensland South's application on Monday, 21 June 2010, Mr O'Gorman sought to file and rely upon an affidavit sworn on 21 June 2010 by Mr Kevin James Smith, the Chief Executive Officer of Queensland South. In that affidavit, Mr Smith also sought to clarify some of the statements made in his earlier affidavit of 1 June 2010. To begin, Mr Smith said that the statement in his affidavit of 1 June 2010 that Queensland South was the legal representative for the applicants in the Iman #2 claim was meant to convey that Queensland South was performing its statutory functions pursuant to s 203BB of the Act. 38 Mr Smith went on to state that the solicitor on the record for all native title determination applications for which Queensland South had responsibilities was the Principal Legal Officer of Queensland South. He said from 13 February 2006 to 6 April 2010, Mr Colin Stanley Hardie of Just Us Lawyers was retained as a private legal practitioner to act in the role of Principal Legal Officer of Queensland South. He said Mr Hardie's primary role was to manage the legal practice of Queensland South, including to act as the solicitor on the record for all native title determination applications. 39 Further, Mr Smith said that on 6 April 2010, Queensland South employed Mr Shahzad Rind as the "internal" Principal Legal Officer and thereafter all "management responsibilities previously undertaken by Mr Hardie were transferred to Mr Rind". He said, from that date, Mr Hardie's retainer was restricted to being the solicitor on the record for all native title determination applications in which Queensland South was involved. Mr Smith expressed the expectation that Mr Rind would obtain an open practising certificate from the Queensland Law Society on and from 30 June 2010, at which time he would take over the full responsibilities of the position of Principal Legal Officer at Queensland South. 40 Mr Smith also stated that:

the only statutory service that the Iman People had formally requested [Queensland South] to undertake was the provision of representation in the native title determination application;
the only involvement that [Queensland South] had in relation to the agreement at issue in these proceedings was to perform the certification function pursuant to s 203BE(5) of the Act. 41 In summary, this additional material established that Mr Rind was not, in the relevant sense, the Principal Legal Officer of Queensland South and therefore he was not the solicitor on the record for the native title claim group in the Iman #2 claim. Instead, Mr Colin Hardie continued to occupy the role, in the relevant sense, of the Principal Legal Officer of Queensland South and he was, and remained, the solicitor on the record and for the native title claim group in the Iman #2 claim. It necessarily followed that it was now Mr Hardie who may have the conflict of interest that was said to arise if Queensland South were to become a party in these proceedings. Once this fact became apparent, I adjourned the resumed hearing to allow Mr Hardie to appear to make any submissions or statements he wished to on this conflict of interest issue. 42 After a brief adjournment, Mr Hardie appeared in person. He informed me from the bar table, without objection from any counsel, that he was, indeed, the solicitor on the record for the native title claim group in the Iman #2 claim. Otherwise, he confirmed the material contained in the further affidavits of Mr Rind and Mr Smith. However, he added the following relevant information:
he had not taken any role in the current application and had not provided any legal assistance to Queensland South in relation to it;
because he had taken no role in the current application, he did not feel he was under any conflict in relation to his continuing representation of the native title claim group in the Iman #2 claim;
when taking instructions from a native title claim group like that in the Iman #2 claim, he considered he was bound to take into account the policies of Queensland South, eg if an anthropological report obtained by Queensland South indicated that the claimants did not hold native title rights and interests in the land, he considered he would be bound to cease acting for those claimants as required by the policy of Queensland South; and
in representing a native title claim group such as that in the Iman #2 claim, he regarded himself as acting directly for them as the Principal Legal Officer of Queensland South, rather than as a principal in the firm of Just Us Lawyers. 43 The net effect of all this additional material is that Mr Hardie, and not Queensland South, is, in fact, the solicitor on the record in the Iman #2 claim. It is also clear that Mr Hardie has not acted for Queensland South in these proceedings and does not intend to do so. Instead, Ms Deanne Cartledge of Gilkerson Legal has now replaced Mr Rind as the solicitor for Queensland South in these proceedings.

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appearing in litigation by a solicitor 44 It hardly needs to be said that I consider it was entirely unsatisfactory that I had to embark upon this time-consuming and meandering process in order to ascertain who was, in fact, the solicitor on the record for the native title claim group in the Iman #2 claim. That I had to, demonstrates, in my view, a disturbing lack of compliance with the relevant Rules of Court that specify how a party to proceedings is to appear by a solicitor. It also demonstrates a lack of appreciation of the importance of having a readily identifiable person as the solicitor on the record for a party in proceedings before the Court. While the issue has now been resolved in this application, I consider the situation should not be allowed to pass without my saying something about these matters. 45 First, while native title proceedings have many unique features, the fact is they remain litigation, ie the conduct of proceedings before a court. As such, they are subject to the provisions of the Act, the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules as they apply to the conduct of native title proceedings before the Federal Court of Australia. 46 The expression "solicitor on the record" is not defined in the Federal Court of Australia Act 1976 or Rules. However, it is implicit from the relevant provisions of the Rules that the expression refers to the solicitor who is nominated to act for an applicant, in the commencing application, or to act for a respondent, in a notice of appearance: see O 4 r 4(1)(c) and O 9 r 4(1)(b) respectively. 47 A party to any proceedings in the Federal Court can only appear in one of two ways: in person, or by a solicitor: see O 4 r 14(1), O 9 r 1(1) and O 45 r 1(1). While this proposition is not expressly stated in the Rules, it is clearly implicit from the fact that the Rules offer no other option, unless leave is obtained. Furthermore, support for it is provided by the limited circumstances in which leave may be obtained to appear by any other person. 48 For example, O 4 r 14(2) provides that a corporation must commence and carry on any proceedings in the Court by a solicitor, unless it has obtained the leave of the Court to do otherwise. There is a number of decisions of this Court that hold that a corporation must demonstrate a sufficient reason why it should be allowed to appear other than by a solicitor: see, eg Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68. 49 To similar effect, s 85 of the Act allows a party to native title proceedings to appear in person, or by a barrister, or solicitor, or: "with the leave of the Federal Court, another person". See also the interrelated provisions of O 78 r 42A of the Federal Court Rules. This provision is analogous to the Court's inherent power to allow a party to appear other than by a solicitor. However, it has been held that such applications are not to be granted as a matter of course: see Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at [10]. 50 It is worth adding that, apart from O 78 r 42A (see above), O 78 of the Federal Court Rules, which deals specifically with native title proceedings, does not contain any express provisions that prescribe how a party is required to appear before the Court. However, O 78 r 3(2) provides that: "The other Orders of these Rules apply, so far as they are relevant and not inconsistent with this Order, to a proceeding in the Court to which the Native Title Act applies". This, in turn, picks up the provisions of the various Rules I have identified above. 51 Part of the problem in this case was that the solicitor on the record for the Iman #2 claimants was described by reference to the solicitor who held the position of Principal Legal Officer at Queensland South, rather than by describing a particular solicitor by name. The Rules clearly require that the nominated solicitor's name, address, telephone number, facsimile number and email address must be provided: see O 4 r 4(1)(c) and (d) and O 9 r 4(1)(b). Curiously, the latter Rule does not require the solicitor's facsimile number and email address to be stated. Nonetheless, except where there is some statutory provision to the contrary (eg Rule 994 of the Uniform Civil Procedure Rules 1999 (Qld) providing that the Crown Solicitor or other State official may appear by that person's official title), I do not consider that a party will comply with these Rules by providing the solicitor's job title. The difficulties that arose in this case amply demonstrate the pitfalls in that approach.

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the importance of the role of a solicitor on the record 52 A solicitor on the record in any litigation has duties to both the Court and his or her client. However, it is significant in this context, that a solicitor's duty to the Court is "paramount" or "overriding": see Giannarelli v Wraith (1988) 165 CLR 543 at 555 to 556 per Mason CJ and 572 per Wilson J. 53 Both sets of duties serve very important purposes in the administration of justice. The main purpose of the former is to have an officer of the Court who is responsible to the Court for the proper conduct of the litigation before the Court and who is answerable to the Court should anything untoward occur in the litigation: see Myers v Elman [1940] AC 282 ("Myers"). The solicitor on the record therefore represents an essential component of the Court's ability to maintain control over the litigation before it. 54 As Lord Atkin observed in Myers (at 302): If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case. 55 Furthermore, the responsibility of the solicitor on the record extends to the conduct of any other solicitor, whether he or she is a partner or an employed solicitor, or the conduct of any clerk, who is involved in the conduct of the litigation. So much is clear from the observations of Lord Porter in Myers (at 335), where his Lordship said: In re Manby and Hawksford 3 Sm. & G. 375, Hawksford, a member of a firm of solicitors, was held responsible to the Court though it was not suggested that he was guilty of personal misconduct or neglect of duty, and though his only knowledge of the case was that there was such a suit which his partner Manby was conducting. In that case the Court was exercising its summary jurisdiction over its officers, and the argument was expressly presented and rejected that such jurisdiction extended to relief only in cases of personal misconduct and neglect of duty. 56 Of course, the fact that the Federal Court of Australia does not maintain a Roll of Practitioners and does not have the same disciplinary powers as the State Supreme Courts, does not mean that the solicitors and barristers who practice in this Court do not owe it the same duties: see Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 233 to 234. 57 All these observations underscore the fact that the role of the solicitor on the record is critical to the Court's ability to ensure that the cases before it are managed efficiently, promptly and inexpensively. This is particularly so in native title litigation where the costs sanction against the parties has been significantly reduced by the provisions of s 85A of the Act requiring costs orders to be the exception in such litigation. This necessarily means that the Court has to rely even more heavily upon the diligence and integrity of the solicitor on the record, among others, in the case management of native title litigation. These observations also go to demonstrate how important it is that the solicitor on the record is properly identified by name and address and all the required contact information is provided in accordance with the Rules.

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contentions on the alleged conflict of interest 58 I now turn to the specific discretionary matter that has been raised in this application, viz will allowing Queensland South to become a party in these proceedings give rise to a conflict of interest in relation to Mr Hardie's fiduciary duties to the second respondents such that I should not exercise my discretion to allow it to do so? Before turning to consider the relevant authorities on this issue, I will set out a brief summary of the submissions of counsel on this discretionary matter. 59 In addition to receiving the additional materials from Messrs Rind, Smith and Hardie at the resumed hearing as outlined above, I also heard submissions from Mr Rangiah for the second respondents (excluding Ms Barnes), Mr O'Gorman, for Queensland South, and Ms Barnes, who appeared in person. These further submissions were directed to the position that eventually emerged from the additional materials provided at the resumed hearing that Mr Hardie was, in fact, the solicitor on the record for the native title claim group in the Iman #2 claim. What follows is a brief summary of the original submissions made by each counsel and Ms Barnes, as updated by the further submissions made at the resumed hearing. 60 Mr Rangiah submitted that I should not exercise my discretion in favour of Queensland South becoming a party because its doing so will inveigle Mr Hardie in a conflict of interest. Specifically, he submitted, Mr Hardie will breach his duty of loyalty to the second respondents for whom he is currently acting as the solicitor in the Iman #2 claim. In this respect, Mr Rangiah referred me to the decision of Barrett J in UTi (Aust) Pty Ltd v The Partners of Piper Alderman [2008] NSWSC 219 ("UTi (Aust)") at [30] and following. 61 He submitted that a conflict will arise between Mr Hardie's duty to provide undivided loyalty to the second respondents as his clients in the Iman #2 claim, on the one hand, and his duty of loyalty as an agent to Queensland South as his principal. Mr Rangiah acknowledged that he was not able to point to any authority that dealt with a situation that was the same as, or similar to, this. He submitted Queensland South was seeking to promote its own interests by seeking to argue in these proceedings for a construction of s 24CD(1) of the Act which, if accepted, will be adverse to the interests of the second respondents (excluding Ms Barnes). Mr Rangiah made it clear that he was not suggesting any personal wrongdoing on Mr Hardie's part. He also stated that he was not suggesting that this was a situation where Queensland South held any confidential information possessed by the second respondents. 62 Mr Rangiah also relied upon s 203BB, dealing with Queensland South's statutory functions to assist the Iman People in their claim and he pointed to the conflict that would arise in relation to those functions if Queensland South wished, instead, to pursue its own interests, as in this case. He submitted s 203BB(4) highlighted the conflict that would arise because that section would require Queensland South to refer a subsequent native title holder seeking assistance of this kind for separate representation. Finally, Mr Rangiah relied upon s 203B(4), which requires Queensland South to give priority to the protection of the interests of native title holders in discharging its statutory functions. 63 Mr O'Gorman submitted that these proceedings were completely separate from the Iman #2 claim proceedings in which Mr Hardie acts as the solicitor for the second respondents. He submitted that the former involved the second respondents applying to be identified as native title holders for the claim area under s 61 of the Act, whereas the latter involved a completely different section of the Act, ie s 24CD(1) and judicial review proceedings under a different Act, ie the Administrative Decisions (Judicial Review) Act 1977. Mr O'Gorman also pointed out that, if it becomes a party, Queensland South will not be raising any factual disputes in these proceedings and its involvement will be limited to making submissions on a question of law, ie the construction of s 24CD(1) of the Act. 64 Further, Mr O'Gorman submitted that Mr Hardie had been the solicitor on the record for the Iman People throughout and, most importantly, he had not at any time been the solicitor on the record or acted for Queensland South in these proceedings. He submitted Mr Hardie was in a similar position to a solicitor who is employed by a Legal Aid Commission and who acts for clients in the course of that employment. 65 In relation to s 203BB(4) of the Act, Mr O'Gorman submitted that no request for assistance had been made to Queensland South to date, under that section, and it, therefore, did not arise for consideration. Nonetheless, even if it did, he submitted that that section only dealt with a situation where Queensland South actually represented the native title claim group whereas, in this case, Queensland South had only facilitated Mr Hardie representing the Iman #2 native title claim group.

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a fiduciary's duty of undivided loyalty 66 I now turn to consider the relevant authorities on this issue. While most of these authorities deal with applications to enjoin solicitors from acting for, or against, existing or former clients, I consider the principles contained in them provide guidance for my decision in this application. I should also add that the courts have made it clear that the exercise of this jurisdiction is "extraordinary and protective", of an "exceptional nature", or to be applied"only in a clear case": see Woodgate v Leonard [2007] NSWSC 495 at [37] per Barrett J, TJ Board and Sons Pty Ltd v Castello [2008] VSC 91 at [30] per Hollingworth J and Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009), [17.20]. 67 There is no doubt that a solicitor acting for a client has fiduciary obligations to that client which include a duty of undivided loyalty. As Mr O'Gorman correctly observed, a solicitor employed by a legal aid service has the same duty to his or her client: see Re Chapman, Feenstra, Cartwright & Gendall [1977] 2 NZLR 196 at 199 per Mahon J. For present purposes, this duty includes a proscription against the solicitor, at the same time, acting both for and against that client in the same matter or proceedings - this gives rise to an "inescapable conflict of interest": see Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 234 to 235 per Millett LJ. This proscription is reflected in O 45 r 2 of the Federal Court Rules, which provides that: Where a solicitor or his partner acts as solicitor for any party to any proceeding, or is a party to any proceeding, that solicitor shall not, without the leave of the Court, act for any other party to the proceedings not in the same interest. However, this does not apply in the present circumstances because there is no suggestion that Mr Hardie is proposing to act for another party in the Iman #2 proceedings. 68 This duty of undivided loyalty continues for so long as the fiduciary relationship continues. While there is a divergence of authority in various State Supreme Court decisions as to whether the duty of loyalty continues after the relationship of solicitor and client ceases (see Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 ("Kallinicos") at [76] per Brereton J; Ismail-Zai v State of Western Australia (2007) 34 WAR 379; [2007] WASCA 150 at [20] to [24] per Steytler J; and Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 ("Cleveland Investments") at [37] per Ward J), since the solicitor and client relationship between Mr Hardie and the second respondents has not yet ceased, I do not need to decide this question in this matter. 69 Nonetheless, there is a number of authorities which extend this proscription beyond the same matter or proceedings to include a solicitor concurrently acting for and against a client in related matters or proceedings. Those authorities were examined in UTi (Aust) at [31] to [38]. Following that examination, Barrett J concluded (at [37]) that: The proposition that a lawyer is duty bound not to act against a current client "in the same matter" or "in the same or a related matter" may thus be seen to be a reflection of the duty to avoid conflicting duties or conflicting loyalties, with the "same" or a "related" matter as no more than a description of one particular context in which the conflict arises. It could arise in other ways as well - for example, where a lawyer acting for one client in a particular suit was called upon to attack the credit of another client who was a witness in that case. 70 Furthermore, the Court has a power to intervene as a part of its inherent supervisory jurisdiction to ensure the due administration of justice: see Kallinicos at [76] per Brereton J, Cleveland Investments at [37] per Ward J and UTi (Aust) at [46] to [52] per Barrett J. In this instance the principle at stake is that, not only must the solicitor's duty be discharged, it must "manifestly and undoubtedly" be seen to be discharged: see Spector v Ageda [1973] Ch 30 at 47 per Megarry J and Maguire v Makaronis (1997) 188 CLR 449 at 495 per Kirby J. These sentiments were aptly (with respect) described by Bryson J in D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 at 123 where he said that the courts should take "careful measures to secure not only that justice is done but also that it is apparent that it is done, an appearance which would not survive any general impression that lawyers can readily change sides". 71 Similarly, agents cannot place themselves in a position where they owe a duty to another which is inconsistent with their duty to their principal: see Fullwood v Hurley [1928] 1 KB 498 at 502 and Transvaal Lands Co v New Belgium (Transvaal) Land and Development Co [1914] 2 Ch 488 at 503. However, as the author points out in Finn P, Fiduciary Obligations (2nd ed, The Law Book Company Limited, 1990) ("Finn") at para 581: But the mere acceptance of multiple "fiduciary" engagements or employments is obviously not offensive in itself. It is the staple of the commission agent, the solicitor, the corporate trustee, the company director and the liquidator. The vice condemned by the courts only arises when the fiduciary, by his action or inaction in either or both of two relationships, brings about an actual conflict between duties owed in each relationship. 72 To similar effect, O'Loughlin J observed in Southern Hotels Pty Ltd, in the matter of Temple [2000] FCA 1406 at [17]: An acceptance by a solicitor of plural or multiple instructions is not necessarily wrong or impracticable. However, the loyalty that must be given to a client is unqualified and undivided. Hence a solicitor cannot properly discharge his duties to one whose interests are, or have the potential to be, in conflict with those of another client unless the fullest disclosure has been made. 73 Examples are provided in Finn (at para 583) of: a company director separately undertaking to two different companies of which he is a director to use his best endeavours to procure the one profit-making opportunity for each of them exclusively (see Grand Enterprises Pty Ltd v Aurium Resources Ltd (2009) 256 ALR 1; [2009] FCA 513 at [29]) and a solicitor advising both the seller and purchaser of shares, discovering that the purchaser is unlikely to be able to pay the seller the purchase price. 74 It is also important to record that this fiduciary duty of undivided loyalty only imposes proscriptive or negative duties - as opposed to positive duties - on the fiduciary: see Breen v Williams (1996) 186 CLR 71 at 113 per Gaudron and McHugh JJ. For present purposes, these negative duties essentially require that, except with the informed consent of the person to whom the fiduciary duties are owed, the fiduciaries must do two things: they must not place themselves in a position where there is, or may be, a conflict between their duties to one or more persons and that they must not profit from the relationship giving rise to the fiduciary duty: see Moss v Moss (No 2) (1900) 21 LR(NSW) Eq 253 at 258 per Simpson CJ, Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 67 per Gibbs CJ and Warman International Ltd v Dwyer (1995) 182 CLR 544 at 557 to 558.

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no actual or perceived conflict exists 75 Applying these principles to this case, I cannot see how there is any actual or perceived conflict between the duties Mr Hardie owes to the Iman People as his clients and the duties he owes to Queensland South as his principal. The principles I have outlined above demonstrate that Mr Hardie can have concurrent "fiduciary" engagements, in this case, as a solicitor to the Iman People and as an agent to Queensland South as his principal. However, the fiduciary obligations associated with these two engagements do not require Mr Hardie to take positive steps to advance his duty of loyalty to either the Iman People, or to Queensland South. Instead, he is obligated to act to avoid a position of actual conflict between the duty of loyalty he owes to both. 76 Beyond pointing to the existence of these two "fiduciary" engagements, I do not consider Mr Rangiah has identified any situation in which the duties of loyalty Mr Hardie owes under them are in actual conflict. While Mr Hardie mentioned a situation where a policy of Queensland South might apply to place him in a position of divided loyalties, he did not identify any such policy that actually applied in the present circumstances, nor one that might apply in the future. Moreover, Mr Rangiah did not point to any such policy. 77 Instead, Mr Rangiah relied upon the claim that Queensland South is seeking to promote its own interests in pursuing a construction of s 24CD(1) of the Act, which, if accepted, will be adverse to the interests of the second respondents (excluding Ms Barnes). While this may be so in broad terms, I do not consider it constitutes an actual conflict within the principles I have outlined above. For one, Mr Hardie is not involved as a solicitor, or otherwise, in assisting Queensland South to pursue its own interests in relation to the construction of s 24CD(1) of the Act. Furthermore, while this situation may involve Queensland South taking a position that is adverse to the interests of the second respondents, there is nothing to suggest that circumstance will have any adverse effect on the Iman #2 claim or, more importantly, on Mr Hardie acting for the Iman People in that claim. 78 Furthermore, I do not consider the Iman #2 claim and these proceedings are sufficiently related, such that the extended application of the proscription against a solicitor acting for and against a client in the same proceedings, could apply. As Mr O'Gorman pointed out, the two sets of proceedings rely upon different pieces of legislation and are directed to different sections of the Act. Moreover, each seeks to achieve a very different outcome. In fact, the only common factor between the two sets of proceedings is that the Iman People's native title rights and interests are involved in both. However, I do not consider this factor could possibly support a conclusion that the two proceedings are sufficiently related for these purposes. 79 Nor do I consider the circumstances of the adverse interests described above call for any intervention to ensure the due administration of justice. There is no suggestion that the credit or character of any of the second respondents will be attacked or questioned in these proceedings. Indeed, it seems to be common ground that there will be no dispute on the facts in these proceedings and they will be limited to a question of law. And, of course, there is no suggestion that Mr Hardie proposes to act for any other party in the Iman #2 claim and he has not acted for Queensland South in these proceedings, nor does he intend to do so. It follows that both the perception and reality is that Mr Hardie will not be "changing sides" if Queensland South becomes a party to the proceedings. 80 As to the other matters raised by Mr Rangiah, I do not consider s 203BB of the Act is relevant. It is clear on the evidence before me that neither the second respondents, nor Ms Barnes (or anyone else for that matter), has asked Queensland South to provide assistance in the discharge of the statutory function described in that section and s 203BB(2) makes it clear that Queensland South "must not perform" that function unless it is requested to do so. 81 Finally, as to s 203B(4), I do not consider that provision currently applies to the Iman People because they are not yet "native title holders" as defined in s 224 of the Act. It may be otherwise if that provision extended to "persons who may hold native title" (cf, for example, the terminology s 203BB(1)(b)), or if the Iman People had already succeeded to a determination of native title under the Act. 82 For these reasons, I do not consider that the second respondents have demonstrated that Mr Hardie may be placed in a position of conflict in relation to his duties of loyalty to the second respondents if Queensland South were to become a party to these proceedings. That being so, I am left in a position where I consider Queensland South has a sufficient interest in the decision the subject of these proceedings and no good reason has been advanced as to why I should not exercise my discretion to allow it to be made a party. 83 However, there is another factor I consider I should take into account in deciding whether to exercise my discretion in this application. That is that there is not presently a fully fledged contradictor in these proceedings. At an early stage of the proceedings, there was a suggestion that the Attorney-General of the Commonwealth may intervene to take that role, but this did not eventuate. As a result, the only contradictors at present are the Delegate and Ms Barnes. Of course, QGC and the second respondents (excluding Ms Barnes) share common interests. I used the expression "fully fledged" because, while the Delegate has indicated through her counsel that she intends to make submissions, as I understand it, those submissions will be constrained by the principles set out by the High Court in R v Australian Broadcasting Tribunal, Ex parte Hardiman (1981) 144 CLR 13 at 35 to 36. As to Ms Barnes, she has indicated that she will not be represented by a legal practitioner at the hearing. It will therefore be difficult for her to properly discharge the role of a proper contradictor. It follows that, in these circumstances, if Queensland South is made a party in these proceedings, it will assist in providing a proper contradictor in the proceedings.

Parties

Applicant/Plaintiff:

QGC Pty Limited

Respondent/Defendant:

Bygrave

Legislation Cited (6)

Act, the Federal Court of Australia Act 1976(Cth)

Native Title Act 1993(Cth)ss 24CA, 24CD(1), 24CG, 24CH, 61, 84(5), 85, 85A, 203AD, 203AH(2)(a), 203B, 203B(4), 203BA(1), 203BB, 203BB(1)(b), 203BB(2), 203BB(4), 203BE(5), 203BF, 203BH, 203BH(2), 203BJ(c), 224, Pt

Administrative Decisions (Judicial Review) Act 1977(Cth)ss 5, 12

Judiciary Act 1903(Cth)ss 39B, 55B

Federal Court of Australia Act 1976(Cth)

Uniform Civil Procedure Rules 1999(Qld)

Cases Cited (27)

co Company v Minister for Consumer Affairs (1988) 20 FCR 520 Munn v State of Queensland [2002] FCA 78 Kooma People v State of Queensland [2002] FCA 86 Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 Giannarelli v Wraith (1988) 165 CLR 543 Myers v Elman [1940] AC 282 Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 UTi (Aust) Pty Ltd v The Partners of Piper Alderman [2008] NSWSC 219 Woodgate v Leonard [2007] NSWSC 495 TJ Board and Sons Pty Ltd v Castello [2008] VSC 91 Re Chapman, Feenstra, Cartwright & Gendall [1977] 2 NZLR 196 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Ismail-Zai v State of Western Australia (2007) 34 WAR 379; [2007] WASCA 150 Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 Spector v Ageda [1973] Ch 30 Maguire v Makaronis (1997) 188 CLR 449 D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118 Fullwood v Hurley [1928] 1 KB 498 Transvaal Lands Co v New Belgium (Transvaal) Land and Development Co [1914] 2 Ch 488 Southern Hotels Pty Ltd, in the matter of Temple [2000] FCA 1406 Grand Enterprises Pty Ltd v Aurium Resources Ltd (2009) 256 ALR 1; [2009] FCA 513 Breen v Williams (1996) 186 CLR 71 Moss v Moss (No 2) (1900) 21 LR(NSW) Eq 253 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 Warman International Ltd v Dwyer (1995) 182 CLR 544 R v Australian Broadcasting Tribunal, Ex parte Hardiman (1981) 144 CLR 13 Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009), [17.20] Finn P, Fiduciary Obligations (2nd ed, The Law Book Company Limited, 1990) paras 581 and 583

[2008] VSC 91

[2007] WASCA 150

(1988) 20 FCR 520

(2005) 224 CLR 322

(1984) 3 FCR 68

(1988) 165 CLR 543

(1993) 45 FCR 224

(2005) 64 NSWLR 561

(2007) 34 WAR 379

(1997) 188 CLR 449

(1987) 9 NSWLR 118

(2009) 256 ALR 1