Consideration
55 As a starting point, in my view, it is correct to say that both the Rirratjingu and Galpu interlocutory applications do not seek to maintain their previous ADJR Act application on the basis previously expressed (more clearly so in the case of the Galpu) by reference to additional but already filed material which had not previously been the focus of submissions.
56 What is being attempted by the Galpu is the introduction by amendment of an ADJR Act claim in respect of the 30 January Decision. The Rirratjingu are also seeking to widen their present causes of action, to cover previous NLC allocation decisions on the quarterly payment.
57 As the NLC submitted, to that extent, the substitution of the new pleadings does not give effect to the Judgment, but simply uses the existing application (which but for the amendment) would, I think, now be dismissed as the vehicle for a separate and different claim or claims.
58 In respect of the existing claims, which have been addressed on refined and confined issues as noted below, on those issues the consequence is in my view that the claim as expressed should be dismissed. The principal of the finality of litigation as an important element of the public interest would dictate that only in the rarest of cases should an amendment to the pleading be allowed in such circumstances: Multiplex Constructions v Irving (No 2) [2005] NSWCA 1 at [24].
59 Consequently, if it were the intention or effect of the proposed amendment to enliven in some way the causes of action previously pleaded, and which have been resolved by the issues addressed in the First Judgment, in my view the leave sought should be refused: Fidelity Shipping Co v V/O Exportchleb [1966] 1 QB 630 at 642.
60 It would follow, too, that to the extent that either the Rirratjingu or Galpu claims as proposed to be amended are based on matters already decided in the First Judgment but by the proposed fresh allegations, they should not be permitted. Orders should be made dealing with the existing claims on the basis of the First Judgment, and if so advised the Rirratjingu or the Galpu may appeal from those orders.
61 I also consider that, at least in part, the proposed Rirratjingu amendments, even though somewhat different from the earlier claims as expressed, do partly assert a state of affairs - name a trustee relationship between the NLC and the Rirratjingu in respect of the receipt of the quarterly payments - which is not consistent with the conclusions reached in the First Judgment.
62 As noted, it is to be alleged (if the proposed amendments are allowed) that the NLC was, upon receipt of the quarterly payments, in the relationship of a trustee with the traditional owners in the process of making the NLC allocation decisions (what are called in the proposed amendments the quarterly apportionment and payment decisions), which then inform the nature of the obligation of the NLC to the Rirratjingu which is, in turn, said to have been breached. The First Judgment decided that s 35(4) merely set the circumstances in which the NLC became statutorily obliged to make the NLC allocation decisions, and that at that point no trustee relationship existed (although the failure to make a decision at all may be the subject of an application by a traditional owner to oblige its making).
63 It is only at the point of some or all of the monies being apportioned and a particular payee or payees selected, assuming they are eligible payees, that in my view a trustee relationship arises in respect of the administration and application of that particular sum for that particular payee or payer. That arises, at least in part from s 35(8) of the ALRA.
64 That ruling is, I apprehend, consistent with the decisions in Kuligowski v Metrobus (2004) 220 CLR 363 at [21], [40] and [54], and Ramsay v Pilgrim (1968) 118 CLR 271 at 276 per Barwick CJ. As I have said, there will be orders determining in a formal way the effect of the First Judgment so that the Rirratjingu, if so advised, may have that decision reviewed on appeal.
65 However, I have not taken the step of regarding the whole of the Rirratjingu existing allegations as proposed as necessarily resolved by the First Judgment. In the circumstances outlined, two specific issues were addressed and determined in the First Judgment. Those issues were formalised by the Orders made on 4 February 2015. Those orders reflect what was agreed between the parties at the time of the initial hearing leading to the First Judgment. They are relevantly in the following terms (apart from the FASC as ultimately filed on 4 February 2015), specifying that the issues to be addressed were:
(a) arising from paragraphs 25 to 33 (inclusive) of the FASC to the extent that they do not require consideration of the appropriate proportions in which the money received by the Rirratjingu should be distributed; and
(b) as to whether the Rirratjingu FASC and the Galpu Amended Notice of Cross-Claim disclose claims which as a matter of law are competent under ss 5-7 of the ADJR Act.
Those issues were heard separately, and before other issues in the proceedings on 3, 4 and 5 December 2014. It was specifically noted in the orders to proceed that:
(i) the order for the trial of issues does not extend to determination of findings of disputed facts on allegations at [42], [43] and [45]-[49] of the FASC;
(ii) the order for the trial of issues does not extend to determination of findings of disputed fact on the allegations at 6-(viii) and 9-(iii), (v), (vii)-(viii), (xi) of the Galpu cross-claim as amended; and
(iii) the order to determine the "competency" of the issues includes determining, subject to (i) and (ii), whether the facts alleged in the FASC, and the cross-claim as amended give rise to a reviewable failure on the part of the NLC to decide, or a reviewable decision by the NLC, as alleged on those pleadings.
66 As the First Judgment records, there were practical rather than strategic reasons for proceeding in that manner. The underlying criticism by the Rirratjingu (as to the merits of which I have no view) of the process by which the NLC made any of the NLC allocation decisions was not resolved.
67 Consequently, in effect, the Rirratjingu now seek to substitute different allegations of fact to enliven a different basis for their claims. That is largely based on the assertion that the Rirratjingu came to agree to the Gove Agreement. It is said by them to reflect the issues of fact which were previously alleged and remain unresolved. In a general way, I accept that they are consistent with the factual assertions now made in the proposed amendments. I do not accept the NLC's characterisation of the proposed amendments as seeking to "run a case factually inconsistent with that which went to judgment" as a decisive one. Certain factual disputes were not resolved.
68 In the case of the Rirratjingu, they foreshadow a separate application under the ADJR to review the 30 January Decision. It is not therefore necessary to address their entitlement to make such an application, or to consider whether any amendment of their existing claims should be permitted to accommodate such a challenge. They do not seek to do so.
69 The Rirratjingu accept that the First Judgment means that the claims in Part A of the AOA should be refused. They also accept that the claims in Part B of the AOA should also be refused.
70 The remedy they accede to, as a consequence, is the striking out of the relevant paragraphs of the AOA and the FASC. They propose an order to that effect, by striking out paras 31-55 of the FASC, leaving only what is in effect paras 1-30. They can properly be described as the background allegations as noted above: the parties (paras 1-6); the "Original Gove Agreement" (paras 7-13); the grants of land under the ALRA including the fee simple grant of the area previously subject to SPL 403 (paras 14-17); the acceptance of the three clan areas as traditional owners of the relevant country (paras 18-22); the Gove Agreement including the quarterly payments; the RDA lease and the recital of obligations under s 35(4) of the ALRA (paras 23-30). To the same extent, they propose striking out all of the AOA (other than the general introductory claim in relation to their "entitlements" under the Gove Agreement).
71 Their written submission next has the heading "The continuation of the remaining claims and claims related to them". In fact, as is evident from their proposed orders, there are no claims to continue, save for the assertion of their entitlements under the Gove Agreement.
72 Reference is made to the First Judgment at [108]-[110] and at [129]. The First Judgment at [108]-[110] describe the role of the NLC under the ALRA, including s 35(4). They simply note that, in appropriate circumstances, the decisions of the NLC may be reviewable. That is what the Rirratjingu proposed separate proceedings concerning the 30 January Decision contemplates. The First Reasons at [108-]110] provide no basis for the Rirratjingu proposed claims. Nor, in my view, does [129]: it notes the factual dispute about the NLC's processes prior to the 30 January Decision, noted briefly also at [21], [22] and [36] of the First Judgment. To some degree, that dispute is one which is (I was told in the course of submissions) also the subject of separate proceedings in the Supreme Court of the Northern Territory.
73 The "window" through which the Rirratjingu proposed amendments are then sought to be introduced is whether the past NLC allocation decisions to apportion and pay each of the quarterly payments were made in accordance with law.
74 Depending on the basis for that being consistent with the First Judgment, the question whether leave to amend should be given is really a discretionary decision. There is really no especial difference between amending the existing proceeding by adding new claims, or by starting new proceedings. It is not a case of amending an ADJR Act application to challenge the validity of the same decision.
75 The issues raised are important. The Gove Agreement has many years to run. For whatever reason, the Rirratjingu to date have accepted the adoption by the NLC of the allocation as between the three clans based on the respective geographic proportions of the land in question by the NLC allocation decisions until the 30 January Decision. That is to be challenged in any event.
76 The basis for their concerns to support their proposed amendments was identified in the evidentiary and pleaded material (in broad terms) in the existing proceeding, but those factual issues were not explored for particular and understandable reasons: see the First Judgment at [35], [36], [41], [42], [48]-[50] and [129]. Those factual matters were not abandoned.
77 As the NLC submissions refer to the principle of finality of litigation, it is important to note that, in my view, the Rirratjingu did not elect to proceed on the basis of the two issues specified that their general factual allegations were not to be maintained. The "election" made was a practical one, given the time exigencies. So this is not a case where it can be said that the Rirratjingu should not now be allowed to ventilate matters which they had previously chosen not to pursue.
78 I have also considered whether the proposed claims are within the general areas of factual and legal dispute covered by the earlier filed material. I am satisfied that they are not entirely fresh. In the course of contentions on this hearing I was referred to the earlier affidavit material which sets out some basis for the allegations now proposed to be made, and which - if the earlier hearing had not been so time-constrained and the issues so confined - would have been relied upon. It is not necessary to refer to that in detail.
79 I do not consider that it is appropriate to comment upon the prospects of the Rirratjingu succeeding on their proposed claims. That may depend on disputed factual matters. Where there are no prescribed criteria to be considered by the NLC in making the NLC allocation decisions, it may be difficult to make out a judicial review entitlement based upon the asserted failure to consider relevant considerations or upon the alleged taking into account of irrelevant considerations. The conduct of the Rirratjingu in relation to the past decisions may inform the reasonableness of the NLC's decision-making.
80 However, in my view, the proposed allegations in [32.1] of a trustee or quasi-trustee relationship is not consistent with the Reasons. I would not allow it. I do not consider that the decision of Re Mullighan [1998] 1 NZLR 481 is a basis for the refinement which the Rirratjingu advanced in submissions. It addressed the nature of the duty of the trustee of a deceased estate to act impartially as between the income and the capital beneficiaries of the estate. In the section "Breach of Duty" there is no allegation specifically of the way in which the asserted "trust" was breached. The allegations to support the ADJR Act claim as proposed are otherwise within the available grounds.
81 Subject to that particular matter, I am of the view that the Rirratjingu have demonstrated that there is sufficient material to demonstrate at least an arguable case to contend that the process of the NLC in making the NLC allocations in the past, since the Gove Agreement might be flawed and might give rise to a claim against the NLC either at common law or under the ADJR Act. Of course, that is not a decision on any of those disputed matters.
82 However, I do not think it is appropriate to categorise the Rirratjingu amendments as the continuance of the existing proceeding in the way it is contended. That is demonstrated by the fact that the Rirratjingu accept that, as a result of the First Judgment, the claims presently expressed in the AOA should be struck out. It is an attempt to extend the contentions made about the anticipated 30 January Decision of the NLC to the earlier NLC allocation decisions.
83 After careful consideration, I am not prepared to give the leave sought by the Rirratjingu to do so, notwithstanding the matters I have referred to in exercising the discretion available.
84 I have reached that view, on balance, firstly because I am unable to be satisfied about the consequences of doing so to the financial affects upon the Gumatj or, indeed, on the NLC. The quarterly payments are substantial. The Rirratjingu do not address how a significant retrospective adjustment of the past NLC allocation decisions could or would affect the Gumatj or the NLC, save for suggesting that the retrospective adjustment could be effected prospectively by significantly reducing the Gumatj proper share of the future NLC allocation decisions until the (presumably) correct balance was restored. There is no material to assess the impact of such a process upon the Gumatj. Alternatively, they say that adjusted entitlement could be paid from the beneficially held resources of the NLC, but again without exploring whether that is or might be possible, and if so at what expense to other Aboriginal communities in the area for which the NLC is responsible. Secondly, I do not have any persuasive evidence of why the concern presently expressed was only raised at this stage of the process of the administration of the quarterly payments. The material refers to an apparently carefully drawn briefing paper of the NLC of 2 December 2011 addressing how it might go about making the then prospective NLC allocation decisions, and the RAC responded pointing out concerns. Reference has been made in the SFASC to that exchange of communications, as well as to the conduct of persons attributed to the NLC in the course of reaching the Gove Agreement. There is no real explanation of why, prior to the presently proposed amendments, those matters were not raised. It is not an explanation that the NLC Reasons are the first occasion when the basis for the 30 January Decision (consistent with the earlier NLC allocation decisions) was expressed. There is no suggestion that, in respect of those earlier NLC allocation decisions, the Rirratjingu did not understand their basis, or could not have sought from the NLC reasons for its earlier decisions, or that they did not have available to them the material now put forward about how the Gove Agreement was acceded to by them.
85 In short, both on the balance of convenience, and because it appears to me that the Rirratjingu (if so deposed) could readily have made the now proposed claims much earlier and, it is reasonable to suspect in the absence of contradictory material; simply decided at the earlier times not to make the complaints now made.
86 I think that the significant dissident group now represented by the fifth respondent might also inform that possible state of affairs. At this point I have taken their dissent into consideration only to the extent of having regard to their dissent as indicating that, at some stage, and by some means, the Rirratjingu will have to address that issue. I note, however (in the light of the First Judgment) that there is no particular obligation on the NLC to determine that any NLC allocation decision to be made must be in favour of RAC or of any one or more of the second to seventeenth applicants.
87 Rather than simply declining to make the orders sought on that interlocutory application, I will refuse to make orders in the terms sought, but I will give the Rirratjingu leave to apply to amend that interlocutory application to apply, in such terms as they may be advised, the 30 January Decision of the NLC. That is to guard against the possibility that such an application, although foreshadowed, has not been commenced in anticipation of this judgment granting them the orders sought.
88 If such an application were to be made, by leave, (and encompassed within Order 6 sought in the AOA), I indicate that - to the extent necessary it could encompass an application for any necessary extension of time to have done so. I also indicate that I have not accepted, for the reasons already given that the resolution of the claims made in the AOA and as refined for decision by the First Judgment do not give rise to any issue estoppel on the wider factual issues which might be raised, and in my view do not provide a basis for the Court to take the view that the Rirratjingu have elected by the refinement of the issues determined by the First Judgment not to pursue such allegations so that they should not now be entitled to maintain them (but I would not permit the allegations of a trustee or quasi-trustee relationship as it presently appears at [32.1] of the SASC. On the Galpu interlocutory application, I will make an order in terms of that application with certain qualifications. It simply uses the existing cross-claim as the vehicle to challenge the 30 January Decision of the NLC. That order is to take effect from the date of the interlocutory application. The qualifications relate to the claim in subpara (x) of what appears to be an omitted para 9, or alternatively an incorrectly numbered (1) as a particular of para 9. Firstly, the drafting needs to be corrected. Secondly, I would not permit a claim as pleaded directed to a specific percentage of the quarterly payments, as the First Judgment has found that that is a function of the NLC under s 35(4) of the ALRA and is not a matter for the Court. I would allow subpara (xi) to stand, as it is consistent with the form of relief which might be granted if the claim were generally to succeed, and the matter remitted to the NLC for further consideration. For the same reasons, the declaratory orders sought will also have to be refined, having regard to the findings in the First Judgment about the nature and extent of the NLC discretion under s 35(4), including the discretion as to the person or persons or entities to whom the "Galpu share" of the quarterly payments are to be made, assuming the NLC decides that it should provide some of the relevant quarterly payment to the Galpu.
89 Those rulings are not intended to preclude the NLC, or the Gumatj from responding to any such further claim (within the leave granted) by either the Rirratjingu or the Galpu, except to the extent that the First Judgment and the orders made as a result have effect, or as stated in this judgment. There is not any anticipation of the terms of any revised claims such that these reasons are any anticipatory approval of their possible terms.