Quandamooka People #1 v State of Queensland - [2002] FCA 259 - FCA 2002 case summary — Zoe

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Quandamooka People #1 v State of Queensland

[2002] FCA 259

Federal Court of Australia|2002-03-06|Before: Drummond J

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Source facts

Court

Federal Court of Australia

Decision date

2002-03-06

Before

Drummond J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

1 On 8 February 2002, I ordered that the notice of motion filed on 6 December 2001 by Mr Delaney seeking to remove Mr Ruska as an applicant in the two Quandamooka people claims be dismissed by consent. I further reserved the question of costs of and incidental to Mr Delaney's notice of motion and I also ordered that Mr Ruska's own notice of motion filed 22 January 2002 be dismissed by consent, without prejudice to his entitlement to seek an order for his costs of and incidental to his own notice of motion. Mr Ruska now seeks costs on an indemnity basis of both Mr Delaney's notice of motion and his own notice of motion. Those costs, on whatever basis they are assessed, will be substantial. 2 Mr Delaney and Mr Ruska are the applicants on behalf of the Quandamooka people for declarations of native title over a number of islands and areas of sea in Moreton Bay. The first Quandamooka claim was filed as long ago as January 1995; the second, a supplementary claim, in September 1999. The claim areas include lands on which substantial mining operations and other significant commercial and other activities are carried. 3 But for the dispute that has arisen within the Quandamooka claimant group that has given rise to the issues now before me, it is distinctly possible that the two claims would have by now been resolved by consent determinations. On the material before the Court, part of the claimant group appears to support the making of an Indigenous Land Use Agreement ("ILUA") with various commercial interests, among others. That group is associated with Mr Delaney. Other Quandamooka oppose that agreement. They are associated with Mr Ruska. Mr Delaney, for some time, has had the support of the Queensland South Representative Body Aboriginal Corporation ("the QSRBAC") in this litigation. Mr Ruska is not publicly funded. 4 To resolve the impasse and so enable the native title claims to proceed to final determinations, Mr Delaney, in August last, filed a notice of motion seeking an order under s 66B the Native Title Act 1993 (Cth) that, in effect, Mr Ruska be removed as one of the two applicants and that he, Mr Delaney, continue as the sole applicant on behalf of the Quandamooka people in both claims. 5 In response to those notices of motion and in an attempt to resolve the problems created by the dispute within the claimant group, the Court convened a case management conference before a Deputy District Registrar. This conference was held on 7 September 2001. The result of that conference, what happened in relation to the agreement there arrived at between Mr Delaney and Mr Ruska and what occurred at the subsequent meeting of the Quandamooka people held on 20 October 2001, which was convened by the QSRBAC to give effect to the agreement, was described by me at the directions hearing held on 11 December 2001 in relation to Mr Delaney's notice of motion. 6 I then said that the background to the proceeding was that Mr Delaney had filed earlier in the year a motion to be substituted as sole applicant. I referred to the discussions at the case management conference in September which I noted had resulted in, according to Deputy District Registrar Robson's report, an agreement between Mr Delaney and Mr Ruska that Mr Delaney would withdraw his notice of motion and that a meeting of the members of the claim group would be convened by the QSRBAC with a view to progressing the applications and resolving the problems that had thrown up the dispute within the claimant group. 7 I noted that in Mr Robson's report of the case management conference of 7 September, he said it was agreed between Mr Delaney and Mr Ruska, who were represented by their respective lawyers, Mr Duggan for Mr Delaney, instructed by the QSRBAC, and Mr Boe for Mr Ruska, that the QSRBAC would convene a general meeting of the whole claim group on or before 20 October 2001 with a view to settling an appropriate method of decision making for the group. Deputy District Registrar Robson's report continued:

[4]

8 Deputy District Registrar Robson also noted that a good deal of negotiated work has been completed involving various parties and the two applicants and that Mr Ruska and Mr Delaney had agreed to show a unified approach to the claim group at the foreshadowed meeting to help get the claims back on track. Deputy District Registrar Robson recorded that the letter from the QSRBAC convening the general meeting will confirm that the proposal about eleven applicants is a joint approach by Mr Delaney and Mr Ruska. 9 Deputy District Registrar Robson, at the conclusion of the case management conference, made an order that incorporated the agreement in short form, though not in all its terms. 10 It was not until 10 October that the QSRBAC sent notices to members of the claim group convening the meeting for a little while later, viz, on 20 October. According to Deputy District Registrar Robson, neither the reference to the proposal for eleven applicants nor the endorsement of the two applicants, Mr Delaney and Mr Ruska, for that proposal was included in the notice. 11 The material before me on 11 December also included the report from Mr Fletcher, the member of the National Native Title Tribunal who conducted the meeting held on 20 October. Deputy District Registrar Robson, in his own report, made reference to Mr Fletcher's report and noted that, although there were about 650 registered members of the claim group, only seventy-four, about 11%, attended. 12 I observed on 11 December that it was with some surprise that I noted what Deputy District Registrar Robson had to say, given the agreement reached between Mr Ruska and Mr Delaney, that Mr Ruska attended the 20 October meeting, but that Mr Delaney did not attend. I also referred to Mr Fletcher's report, which listed the decisions made by the small number of Quandamooka people who attended the meeting of 20 October. I said the position had reverted to the status quo that existed before the agreement reached at the case management conference of 7 September between Mr Ruska and Mr Delaney. I noted that Mr Fletcher recorded in his report that the meeting was conducted in an atmosphere of heated debate from the outset. Issues raised during the meeting included the question of whether, in fact, the meeting complied with the orders of the Court made on 7 September. I also noted that, according to Mr Fletcher, there was also a question raised at the meeting with its small attendance, about the identification of those attending and the families they represented. In other words, there was a question raised, given the very small attendance at this meeting, as to how truly representative of the eleven families constituting the claim group those in attendance were. I noted Mr Fletcher's concluding comments in his report to the effect that all of the issues raised go to the heart of the question as to whether the process complied with the Court's order and whether the decision-making process followed, ie, at the meeting of 20 October, has been effective in resolving the issues. He concluded that, nevertheless, the will of those present at the meeting of 20 October, ie, 11% of the claim group or thereabouts, was clearly reflected in the votes on each issue. Mr Delaney, although not present, his interest was in the majority; Mr Ruska, though present, his interest was in the minority. 13 Reference to the minutes of the meeting of 20 October show that the following resolutions were moved and passed: That the sole applicant for the claim be Ian Delaney: Motion carried, 39 for and 26 against. The Moreton family put a separate motion to the meeting as follows: That we are not here to remove any applicant (or vote against Ian Delaney) but to increase the number of applicants to that of the family groups, namely 11: Motion failed, 30 for and 38 against. The minutes record that the Chairman stated, at this point, that this highlights the problem that this process essentially divides the community rather than unites it. Finally, the following motion was put to a vote at that meeting: That QSRBAC remain the legal representative for the Quandamooka claims: Motion carried 39 for and 28 against. 14 The next thing of relevance that happened after the meeting of 20 October was Mr Delaney's action in filing his notice of motion on 6 December, his second motion, seeking an order under s 66B removing Mr Ruska and leaving Mr Delaney the sole applicant in both Quandamooka claims. 15 At the directions hearing on 11 December, in view of a range of factual issues that I was told would need to be canvassed in order to deal with Mr Delaney's second notice of motion to remove Mr Ruska as an applicant, I set aside three days for the hearing to commence on 4 March this year. I gave directions for the filing of evidence and outlines of submission. 16 On 22 January 2002, Mr Ruska filed his own notice of motion seeking the summary dismissal of Mr Delaney's notice of motion of 6 December. In submissions filed with Mr Ruska's notice of motion, Mr Boe, his solicitor, raised a substantial argument that deficiencies in Mr Delaney's material, which had by then all been filed, were such that Mr Delaney's notice of motion should be summarily dismissed. Mr Boe asked that Mr Ruska's motion be heard before Mr Delaney's motion, in effect, to avoid the three day hearing to start on 4 March. 17 On 8 February I convened a directions hearing to deal with Mr Boe's request that Mr Ruska's notice of motion be heard before Mr Delaney's. At the start of the hearing on 8 February, counsel for Mr Delaney said Mr Delaney wished to withdraw his notice of motion of 6 December. 18 No prior notice had been given to Mr Ruska of Mr Delaney's decision to withdraw his second notice of motion. Mr Ruska had in the meantime exposed himself to a liability in costs to Mr Boe in respect of such matters as the preparation of the detailed submissions required to be prepared and filed by 1 February in answer to the arguments raised by Mr Delaney in support of his motion of 6 December. After some discussion, I made the orders that I have already referred to. These submissions on behalf of Mr Ruska were, in fact, filed early on 22 January 2002. 19 The power to order costs is contained in s 85A the Native Title Act, which provides:

[7]

20 Mr Ruska submitted that Mr Delaney's conduct with respect to the filing and then the withdrawal of the second notice of motion that Mr Delaney brought seeking an order against him under s 66B, viewed against the background of the factional dispute referred to, is such as to justify an order for costs under s 85A in Mr Ruska's favour. He goes further and asks that the costs be taxed on a full indemnity basis. 21 Mr Delaney opposes the making of any costs order on a number of grounds. Firstly, he submits that Mr Boe, the solicitor who has acted for Mr Ruska until this morning in connection with both of Mr Delaney's notices of motion under s 66B, has, in material that Mr Boe has prepared and filed on behalf of Mr Ruska with respect to Mr Delaney's second notice of motion, breached Mr Boe's duties to the Quandamooka people. Mr Boe acted until 2000 or thereabouts as solicitor for the whole Quandamooka claimant group in connection with their native title claims. It is said that he has disclosed confidential information acquired during that particular retainer in the material he prepared in support of Mr Ruska's defence to Mr Delaney's second notice of motion. It was said that Mr Boe will benefit from any costs order now made. It was further submitted that Mr Ruska should be seen as party to Mr Boe's breach of duty. It is said that this conduct disentitles Mr Ruska to the costs orders he now seeks. 22 Any solicitor acting for Mr Ruska, in defence of Mr Delaney's notice of motion filed on 6 December, would be bound to obtain details, which are suggested to be culturally sensitive to the Quandamooka people and thus confidential information, as to matters such as the decision-making processes followed by the Quandamooka people. Any solicitor who acted for Mr Ruska in defence of Mr Delaney's notice of motion would, in all probability, be able to get that information from Mr Ruska. 23 That particular issue, the nature of the decision-making processes followed by the Quandamooka people, was necessarily opened up for examination in this Court by Mr Delaney when he sought the order he did by his notice of motion under s 66B. That is so because of the terms of s 66B, which directs attention to whether the applicant sought to be removed is authorised by the claimant group to make the application and to deal with matters arising in it and also to whether the person seeking to be appointed as applicant has the authority of the claim group to make the application and to deal with matters arising in relation to it. It is clear that such an issue was raised when Mr Delaney chose to file his notice of motion, given s 251B the Native Title Act, which says that:

[10]

24 Sub-section (b) deals with a situation where there is no such process and is presently irrelevant. 25 The cases that have considered applications under s 66B all advert to the importance of there being evidence identifying the nature of the decision-making processes followed by a native title claimant group that result in one or more of their members being given authority to act in relation to the claim on behalf of the group. The cases include Moran v Minister for Land & Water Conservation [1999] FCA 1637, Johnson v Lawson [2001] FCA 894, Ridgeway v Bissett-Ridgeway [2001] FCA 848 and Risk v National Native Title Tribunal [2000] FCA 1589. 26 Save for some statements made by Mr Boe in open court at the directions hearing held on 11 December 2001, counsel for Mr Delaney did not attempt to identify any information which Mr Boe may have obtained up to 2000 in the course of his retainer by the Quandamooka people that any solicitor acting for Mr Ruska now would not have had to obtain and could not have obtained from Mr Ruska to meet Mr Delaney's notice of motion. Despite the complaints made about Mr Boe's behaviour, no orders were sought by Mr Delaney against Mr Boe. 27 Putting to one side for the moment what was said by Mr Boe at that directions hearing and which is the subject of complaint now, there is, in my opinion, no substance in the argument that Mr Ruska should be denied his costs because of the alleged unlawful disclosure of confidences by Mr Boe, for the reasons I have given. 28 I record that Mr Boe sought leave to withdraw this morning from his retainer with Mr Ruska in view of objections raised on behalf of Mr Delaney to his continuing to act as solicitor for Mr Ruska. Ethical requirements, with which the Court is not concerned, may well justify that course. But that does not amount, in my view, to any acknowledgment by Mr Boe that he had unlawfully disclosed confidential information obtained under his retainer from the Quandamooka people. I should also say for completeness, that a complaint was also made in answer to the claim for costs by Mr Delaney that Mr Boe also disclosed privileged information improperly. None was identified, and it is unnecessary to pursue this issue any further. 29 Counsel for Mr Delaney referred to two passages in the transcript of the directions hearing of 11 December containing statements by Mr Boe which he submitted were of significance in explaining Mr Delaney's behaviour in withdrawing the notice of motion. Counsel submitted that Mr Boe's statements made in open court, and particularly because they were made in the presence of the representatives of the other parties to the Quandamooka people native title claims, were such as to give cause to Mr Delaney to drop his second notice of motion for fear that if he pursued it, culturally sensitive information confidential to the Quandamooka people would be disclosed in open court. It was said that Mr Delaney's conduct in dropping the notice of motion in these circumstances cannot therefore be said to be unreasonable and a costs order against him is not justified. 30 The passages in the transcript are as follows:

[18]

32 These are the passages relied on. Counsel has submitted, in relation to what Mr Boe said in these passages, that Mr Delaney, on hearing what was said, came to realise, firstly, that by pursuing his notice of motion, the litigation would make public sensitive matters about the Quandamooka decision making processes. Secondly, that pursuing the notice of motion could also result in the public exposure of sensitive matters relating to the basis of the native title claims brought by the Quandamooka people themselves. Thirdly, that pursuit of the litigation could publicly disclose deficiencies in Dr Memmott's original draft connection report. It was also said that there are additional sensitive matters about which Mr Delaney became concerned as matters which might be exposed if he pursued his notice of motion. Counsel said, in effect, that they were so sensitive that they could not be identified in Court. I ignore that last class of unidentified matter. 33 I reject the submission based upon the statements made in open court on 11 December by Mr Boe. I do not accept that it states Mr Delaney's motivation for dropping the notice of motion, for the following reasons. Firstly, the statement by Mr Boe discloses nothing that will not have to be disclosed by the Quandamooka people in the connection material and other evidence they will necessarily have to disclose to the other parties to their claims in order to make out their claims. Secondly, Mr Boe did not go beyond touching in very brief comments on some of the issues which might need to be the subject of evidence, in order to identify the Quandamooka decision-maker process and other matters which would need to be explored at the hearing of Mr Delaney's notice of motion. The extent of this disclosure was limited to those brief comments. 34 Mr Boe was careful to ensure that he did not publicly disclose any sensitive information. At the December hearing and shortly before Mr Boe made the statements which have attracted the attention of counsel for Mr Delaney in submissions today, I asked both Mr Duggan and Mr Boe whether they could serve the State of Queensland and the Commonwealth with copies of the evidentiary material each proposed to rely on in relation to the hearing of Mr Delaney's notice of motion. An extract from the transcript follows:

[26]

36 Mr Duggan responded that most of Mr Delaney's material had already been filed and served and, indeed, he was content to stand on that. 37 It is to be noted that Mr Duggan did not see fit to raise any question of confidentiality or protection of any material that might be thought to be sensitive. 38 Thirdly, as I have already indicated, Mr Delaney was present on 11 December, and was represented by counsel who appeared on instructions from the QSRBAC. Counsel for Mr Delaney did not, at any time in the course of the hearing and, in particular, when Mr Boe made the statements now the subject of complaint, suggest that anything that Mr Boe said impermissibly went into sensitive areas. Counsel for Mr Delaney made no application that the Court should exercise its undoubted powers to make orders and give directions that would ensure non-publication of anything that Mr Boe said, which is now claimed to be of such concern to Mr Delaney, or to exercise its powers to restrict the use the other parties then present could make of the information Mr Boe disclosed, limited as it was. The failure of anyone of Mr Delaney's side of the record, during that directions hearing, to do that is particularly significant, in my view, in view of Mr Boe's own care, a few minutes before he made the statements now the subject of complaint, to seek confidentiality directions in respect of his own affidavits. 39 Fourthly, it was submitted that Mr Delaney considered, when he filed his notice of motion, that the only issues which would need to be gone into were the efficacy of the meetings of 2 June 2001 and 20 October 2001, and the decision making processes adopted at those meetings. It was suggested that Mr Delaney did not realise, notwithstanding having invoked s 66B, that the making of his application necessarily threw open a wider investigation into what are now said to be sensitive Quandamooka cultural practices and decision making practices, in particular, than that. 40 But I have great difficulty in accepting that, given the nature of the issues which ss 66B and 251B of the Act show are essential to the determination of an application under s 66B, and to the fact that Mr Delaney's attention was specifically drawn, as early as 11 December, to the cases that deal with these very same matters on applications brought under s 66B. Mr Delaney's attention was drawn to those cases in the submission delivered to him by 11 December, prepared by Mr Boe and which is exhibit 2 in the present proceedings. 41 Against this background, it is to be noted that it was only at the directions hearing on 8 February that Mr Delaney, for the first time, revealed that he did not intend to pursue his notice of motion. He had long been in possession of explicit material drawing his attention to the wide ranging nature of the inquiry opened up by his decision to file the notice of motion on 6 December; it was the subject of considerable discussion, in his presence, at the directions hearing on 11 December, called to deal with making sure that the parties would be ready for the hearing of Mr Delaney's notice of motion. 42 For these reasons, I do not accept Mr Delaney's desire to drop his notice of motion is explained by the cultural concerns that it was suggested he came to consider to be significant after he had filed that second notice of motion. 43 It was finally submitted on behalf of Mr Delaney that the decision taken at the meeting of 20 October 2001 made his conduct in filing the second notice of motion reasonable. I reject that submission. 44 The meeting was called against the background of the dispute within the claimant group to which I have referred at some length; to the convening by the Court of the case management conference of 7 September. It was called against the background of the agreement between Mr Delaney and Mr Ruska reached at that meeting. 45 It is necessary to refer in a little more detail to the report of Mr Fletcher, the National Native Title Tribunal member who chaired the meeting of 20 October. He sets out something of how the meeting progressed and of the issues that arose. He noted that there was a question of whether in fact the meeting complied with the orders of the Federal Court, ie, the orders that were made following the agreement and case management conference on 7 September. He concluded by saying:

[29]

46 There is a real question, in my opinion, about whether the meeting of 20 October, convened on limited notice and held in the absence of Mr Delaney so that the united front the subject of the agreement between Mr Delaney and Mr Ruska could not be presented, means that the meeting lacks utility as a reliable indication of the views of the Quandamooka people as a whole. 47 I do not accept that the resolutions passed at the meeting, which I have already set out, make Mr Delaney's action in filing his second notice of motion reasonable. 48 In view of the factional dispute within the claimant group, the fact that Mr Delaney filed a notice of motion in August seeking to remove Mr Ruska as an applicant; in view of the agreement of 7 September between Mr Delaney and Mr Ruska, and the withdrawal of Mr Delaney's first notice of motion; in view of the circumstances in which the meeting of 20 October was called and which throw doubt on the utility of the decisions as reliable indicators of Quandamooka attitudes; in view also of what I find to be the unconvincing explanation for Mr Delaney's motives based on Mr Boe's disclosures; and in view of Mr Delaney's withdrawal on 8 February, without prior notice, of the second notice of motion, it can, in my opinion, properly be said that Mr Delaney's conduct, both in bringing the notice of motion and in pursuing it, was unreasonable within s 85A. The unreasonable nature of his conduct is emphasised, in so far as he pursued the notice of motion after what emerged at the directions hearing on 11 December. 49 For these reasons, I consider that Mr Ruska should have his costs of and incidental to Mr Delaney's notice of motion of 6 December 2001, including reserved costs, if any. In my opinion, Mr Ruska should also have his costs of his own notice of motion of 22 January, including any reserved costs. I have already indicated that there was, in my view, justification for Mr Ruska to bring that notice of motion in an attempt, for which reasonable grounds were advanced, to avoid the protracted trial due to commence on 4 March. 50 In my opinion, no sufficient basis has been laid for an order that these costs be taxed on anything other than the ordinary basis. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.