Roe v Kimberley Land Council Aboriginal Corporation

Federal Court of Australia|2010-08-02|Before: Gilmour J

REASONS FOR JUDGMENT 1 This proceeding was commenced by the filing of a Form 5 Application under Order 4 r 1 of the Federal Court Rules (FCR). Mr Joseph Edward Roe and Mr Cyril Shaw are named jointly as the applicant. Mr Roe and Mr Shaw are also jointly the applicant in the Goolarabooloo and Jabirr Jabirr (GJJ) native title claim (WAG 6002 of 1998) made under ss 13 and 61 of the Native Title Act 1993 (Cth) (NTA). The application is brought on behalf of the members of the GJJ claim group. 2 The respondent, the Kimberley Land Council Aboriginal Corporation (KLC), is the recognised representative body for the Kimberley region of Western Australia under Part 11 of the NTA.

Motion to amend 3 Mr Roe by amended notice of motion dated 13 July 2010 has applied for leave to file an amended application and statement of claim in which he is the sole applicant in a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Consequently he seeks an order that Mr Shaw cease to be a party to this proceeding. 4 Mr Shaw has, it appears, not supported the bringing and certainly, for some time, has opposed the continuation of this proceeding. Furthermore, he does not support the proposed amendments. He substantially adopts the submissions made on behalf of the KLC.

The issue for determination 5 Both the KLC and Mr Shaw submit that Mr Roe has no standing in respect to this proceeding as presently formulated or as it is proposed to amend it. I have concluded, for the following reasons, that Mr Roe has no standing in the present proceeding. As I do not propose, in the exercise of my discretion, to allow the motion to amend it is unnecessary to decide the question of standing as to the proposed claim. 6 It will become apparent, regrettably, in the course of these reasons, that the landscape of this litigation was altered at the instance of Mr Roe, often significantly and usually at the eleventh hour, necessitating a number of adjournments. Concessions earlier made and issues abandoned by counsel for Mr Roe were belatedly re-introduced. This approach to the litigation by Mr Roe has been most unsatisfactory and has added to the time required and costs occasioned in the proceedings.

Background 7 Much of the following 'background', which is uncontroversial, is taken without attribution at every point from the written submissions of the KLC. 8 The KLC, as such representative body, has been negotiating with Woodside Energy Ltd (Woodside), the State of Western Australia and the Commonwealth on behalf of the GJJ claim group over a proposal to develop a liquid natural gas processing facility (LNG) at James Price Point, within the area of the GJJ claim. 9 The application challenges the validity of two joint meetings of the GJJ and the Djaberra Djaberra (DD) native title claim groups held on 15 February and 15 April 2009 as well as the resolutions passed at those meetings which authorised, amongst other things, the KLC to perform its facilitation and assistance functions under s 203BB of the NTA to represent the claim groups in negotiations relating to an indigenous land use agreement and later, to enter into, on behalf of the GJJ claim group, a Heads of Agreement with Woodside and the State of Western Australia in connection with the LNG facility. The applicant seeks declaratory relief as to that asserted invalidity. It also seeks declaratory relief on various grounds based in alleged conflict of interest and duty to the effect that the KLC was and is precluded from acting on the native title claims for the GJJ and the DD. Finally, it seeks injunctive relief to restrain the KLC from acting on behalf of the GJJ claim group on the native title claim, or in negotiations with any party concerning the LNG facility and from disclosing to any person without relevant consent any legal advice, anthropological evidence or other confidential information relating to the GJJ native title claim. 10 The KLC contends that the substantive proceeding should be dismissed, as does Mr Shaw, on the grounds that Mr Roe has no standing to pursue it as he is only one of two named applicants and cannot act alone. The motion to amend is also opposed by the KLC and Mr Shaw.

The first directions hearing 11 At the first directions hearing on 20 April 2010, counsel for Mr Roe informed the Court that: (i) The proceeding was commenced relying on the standing that Mr Roe and Mr Shaw have jointly as the applicant in the Goolarabooloo/Jabirr Jabirr native title claim (WAG 6002 of 1998); (ii) The proceeding seeks relief in relation to and concerns the rights of the Goolarabooloo/Jabirr Jabirr native title claim group; (iii) The law is very clear that in relation to a native title claim the control of the litigation and the conduct of the litigation resides with the applicant, in this case, Mr Shaw and Mr Roe - the members of the native title claim group do not have any role in relation to the conduct of the native title claim; (iv) Mr Shaw has disavowed the proceeding; (v) Mr Roe seeks to continue the proceeding in his own right under s 33C of the FCA Act as a representative proceeding on behalf of the Goolarabooloo/ Jabirr Jabirr native title claim group); and (vi) The members of the Goolarabooloo/Jabirr Jabirr claim group have not given their consent to the proceeding. 12 It was in those circumstances that the Court identified Mr Roe's standing to proceed in this application independently and apart from Mr Shaw as a threshold issue for resolution. On 20 April 2010 the Court made the following orders: 1. The parties are to confer on the issue of Mr Joseph Roe's standing to proceed in this application. 2. Failing agreement on the issue of standing under order 1, Mr Joseph Roe file and serve any affidavits and written outline of submissions upon which he intends to rely on this issue by 30 April 2010. 3. Mr Cyril Shaw and the respondent file and serve any affidavits and outlines of submissions upon which they intend to rely on by 7 May 2010. 4. Mr Roe file and serve any responsive affidavits by 13 May 2010. 5. The matter be listed for hearing on the question of standing on 17 May 2010 at 9.30 am. 13 The parties did confer on the issue of Mr Roe's standing to proceed in the application but failed to reach agreement on the issue. 14 Mr Roe did not file an outline of submissions nor any affidavits on the issue of standing. The KLC filed and served its outline of submissions on the issue of standing together with affidavits from Gregory James Carter, Justin Lee Edwards, Tiffany Joan Labuc, Daniel Aime Vachon and Ophelia Cress Rubinich.

Adjournment application 15 On Friday, 14 May 2010, Mr Roe filed a notice of motion in which he sought to adjourn the proceeding, which was listed for the following Monday, to 9 August 2010. The notice of motion was supported by an affidavit also filed on 14 May 2010, sworn by Mr Roe's solicitor, Mr Dominic Beckett. 16 In that affidavit, Mr Beckett stated that in light of the matters raised in Mr Shaw's affidavit of 1 April 2010, in which Mr Shaw disavowed the proceedings "the position of the applicant in the GJJ claim would need to be regularised". Mr Beckett went on to say that the position of the applicant in the GJJ claim might be regularised: (i) by application to the Court in the Goolarabooloo/Jabirr Jabirr claim for orders pursuant to s 66B of the NTA; or (ii) by application to the Court in this proceeding for an order pursuant to s 84D of the NTA to allow the proceeding to be heard and determined despite any defect in authorisation. 17 Mr Beckett stated that the grounds upon which Mr Roe sought the adjournment were: (i) the proceeding was properly brought by Mr Roe and Mr Shaw in their capacity as the applicant in the Goolarabooloo and Jabirr Jabirr claim and any problem of standing has been created by the conduct of the KLC; and (ii) a proper understanding of the circumstances of the 7 April 2010 claim group meeting does not justify any conclusion being reached by the Court that any adjournment to allow a further meeting of the Goolarabooloo and Jabirr Jabirr claim group to take place would be futile. 18 Mr Beckett stated that information contained in the KLC's affidavits, when properly understood, in fact supports the need for the adjournment sought on behalf of Mr Roe. He asserted that Mr Roe also needed the adjournment so that the following further material in response could be put before the Court: (i) the statutory declarations which appear as a bundle in Annexure N to Mr Beckett's 12 May 2010 affidavit; (ii) evidence about the 7 April 2010 claim group meeting and why it proved impossible for decisions to be made on that occasion; (iii) evidence about previous decision-making by the Goolarabooloo and Jabirr Jabirr claim group and its applicant; and (iv) evidence to explain to the Court why advice given to the members of the Goolarabooloo and Jabirr Jabirr claim group in relation to the process of decision-making used to authorise its applicant was incorrect. 19 On the morning of Monday, 17 May 2010, which was the date fixed for the hearing of the standing issue, Mr Roe served on the respondent an outline of submissions in support of the adjournment application. Consistent with the information contained in Mr Beckett's affidavit of 14 May 2010, the outline of submissions stated that an adjournment until 9 August 2010 was sought to allow time for: (i) the Goolarabooloo/Jabirr Jabirr native title claim group to authorise a new applicant to deal with the native title claim and all matters arising in relation to it; and (ii) an application to be made to the Court under s 66B of the NTA for an order that the new applicant replace the existing applicant in the native title claim. 20 In explaining the reasons for the adjournment, counsel for Mr Roe referred in written submissions to the fact that pursuant to the orders made by the Court on 20 April 2010, the parties had conferred on the issue of standing as a result of which it was "common ground" that Mr Roe did not have standing to continue the proceeding against the KLC without Mr Shaw's agreement. 21 Counsel for Mr Roe also stated in the written submissions that the question of whether Mr Roe had standing to bring a class action under Part IVA of the FCA Act did not arise, which he reiterated before the Court on 17 May 2010 as follows: If I can encapsulate it this way before taking your Honour to the detail: there was consultation, and that consultation has resulted in there being common ground between the KLC and Mr Roe; that is, that given Mr Shaw's present position, Mr Roe does not have standing to continue the proceedings on his own as applicant in the Goolarabooloo/Jabirr Jabirr native title claim. Now, the separate question which I have agitated before your Honour on the last occasion, that is, whether Mr Roe has standing to bring a class action under Part IVA of the Federal Court Act does not arise. It was a matter which was discussed, agreement was not reached, but in any event it is accepted on this side that if Mr Roe were to take such a step, it would involve the commencement of fresh proceedings. Your Honour does not need to be troubled by that question. (Emphasis added). 22 Both in the written submissions and in oral address, counsel for Mr Roe argued that an adjournment was necessary because the proceeding, as presently constituted, could only continue if either the claim group authorised a new applicant and the Court made an order under s 66B of the NTA, or the Court exercised its discretion under s 84D(4) of the NTA to hear and determine this application despite the defect in Mr Roe's authority. 23 Counsel for Mr Roe submitted that "[i]n short, Mr Roe does not have standing to continue these proceedings unless the Court permits him to do so under s 84D(4) of the NTA". 24 It was in those circumstances that the Court adjourned the proceeding and Mr Roe's application for an adjournment to 15 June 2010 and made the following orders: (i) Mr Roe file and serve an outline of written submissions in relation to s 84D of the NTA by 2 June 2010; and (ii) The respondent file and serve any responsive submissions by 9 June 2010.

Representative proceeding revisited 25 Mr Roe did not file or serve the further evidence which had been foreshadowed in Mr Beckett's affidavit, nor did he file and serve an outline of written submissions in relation to s 84D. On 3 June 2010, Mr Roe's solicitors sent a letter to the KLC's solicitors advising that: Mr Shaw has formally terminated Eagle & Partners' retainer and, together with Mr Roe has formally retained this firm to act on their behalf in connection with these proceedings in their capacity as applicant in the native title claim. We anticipate filing and serving the appropriate notice shortly. As the issue of Mr Roe's standing to continue the proceedings independently of Mr Shaw has now fallen away we do not propose to bring an application under s 84D of the NTA. The need for a preliminary determination of the question whether s 84D has any application in the present circumstances therefore no longer arises. We propose to re-list the proceedings for directions. 26 When the proceeding was listed before the Court on 15 June 2010, counsel for Mr Roe informed the Court that Mr Shaw had terminated Chalk & Fitzgerald's (Mr Roe's solicitors) retainer and had once again retained Eagle & Partners to act for him. 27 Counsel for Mr Roe, in a legal volte-face, then indicated that the concession previously made that Mr Roe did not have standing to continue the proceeding on his own "was incorrect as a matter of law". In those circumstances, the Court varied the orders made on 17 May 2010 to read as follows: 1. The applicant file and serve any outline of submissions in relation to the issue of standing and s 84D of the Native Title Act 1993 by 22 June 2010. 2. The respondent file and serve any outline of submissions in response by 29 June 2010. 3. The applicant's notice of motion for an adjournment be adjourned to 15 July 2010 at 10.15 am. 28 The Court also informed counsel for Mr Roe that if he intended to re-embrace the matter of a class action under Part IVA of the FCA Act there would need to be, at the very least, a draft statement of claim articulating precisely the basis upon which such an action is said to be open, particularly in the context of standing. 29 Mr Roe filed and served a written outline of submissions on standing together with a draft proposed amended application under Part IVA of the FCA Act on 23 June 2010. These did not include any submissions on s 84D or a draft statement of claim.

The motion to amend 30 Then, on 29 June 2010, Mr Roe filed the notice of motion, which is the subject of these reasons, seeking amongst other relief, pursuant to Order 19 r 2 FCR, that leave be given to him to file an amended application and statement of claim and that Mr Shaw cease to be a party to the proceeding. This notice of motion effectively overtook Mr Roe's earlier motion for an adjournment. 31 It is necessary to set out in full the claims made and relief sought by Mr Roe in the proposed amended application: 3. The applicantclaims as follows: (a) The respondent, in purported performance of its facilitation and assistance functions under s 203BB of the NTA in connection with consultations and negotiations with Woodside Energy Limited ('Woodside') and the State of Western Australia ('State') invited Woodside and the State to reconsider the possibility of developing a liquid natural gas processing facility and associated industrial complex (LNG Precinct) on the Dampier Peninsula - (i) contrary to a consensus decision by Law Bosses in September 2005 refusing permission for Woodside and the State to undertake such a development because it would damage the Song Cycle, which decision has never been reversed and, under traditional Law, at all material times has remained binding on all Northern Tradition Law Bosses, including the applicant, and on all persons who hold or may hold native title on the Dampier Peninsula, including the GJJ claim group; (ii) without the consent of persons who hold or may hold native title on the Dampier Peninsula given in accordance with s 203BC(2) of the NTA; (iii) in connection with the proposed location of the LNG Precinct at James Price Point, without the consent of the GJJ claim group given in accordance with s 203BC(2) of the NTA. (b) The respondent, in purported performance of its facilitation and assistance functions under s 203BB of the NTA on behalf of the GJJ claim group, entered into consultations and negotiations with Woodside, the State and the Commonwealth in late 2008 and early 2009 for an indigenous land use agreement ('ILUA') to permit the development of an LNG Precinct at James Price Point without the consent of the GJJ claim group given in accordance with s 203BC(2) of the NTA. (c) The respondent, in purported performance of its facilitation and assistance functions under s 203BB of the NTA on behalf of the GJJ claim group, entered into a Heads of Agreement with the State and Woodside in April 2009 without the consent of the GJJ claim group given in accordance with s 203BC(2) of the NTA. (d) The respondent, in purported performance of its facilitation and assistance function under s 203BB of the NTA on behalf of the GJJ claim group, entered into a Heritage Protection Agreement with the State and Woodside in October 2009 - (i) without consulting with the applicant who, in his capacity as Senior Law Boss for that Country, was responsible, under traditional Law, to speak for that Country in relation to matters pertaining to the protection of the Song Cycle; (ii) without the consent of the GJJ claim group given in accordance with s 203BC(2) of the NTA. (e) The respondent, in purported performance of its facilitation and assistance functions under s 203BB of the NTA on behalf of the GJJ claim group and the claim group in the Djaberra Djaberra native title claim WAG 6124 of 1998 ('DJDJ claim group') - (i) acted on behalf of the GJJ claim group and the DJDJ claim group since about 2008 on the notional basis that they comprise a composite 'Jabirr Jabirr' claim group claiming to be ancestrally connected to a Jabirr Jabirr society that has native title rights over the whole of the country which is the subject of the GJJ native title claim and the DJDJ native title claim; (ii) acted on the instructions of a group of persons styling themselves as a Traditional Owners Negotiating Committee ('TONC') co-chaired by Mr Frank Parriman and Mr Wayne Barker (appointed at a joint GJJ and DJDJDJ claim group meeting of which the Goolarabooloo people had no prior notice) in connection with: 1. negotiations with Woodside and the State for the possible development of an LNG Precinct at James Price Point, including negotiating a Heads of Agreement, Heritage Protection Agreement and a draft ILUA; 2. negotiations with the State to secure a consent determination of native title on behalf of the composite 'Jabirr Jabirr' claim group over the whole of the country which is the subject of the GJJ native title claim and the DJDJ native title claim which would exclude the interests of the Goolarabooloo people; (iii) did so without the consent of the GJJ claim group given in accordance with s 203BB(4) and s 203BC(2) of the NTA; and (iv) without the consent of the DJDJ claim group given in accordance with s 203BB(4) and s 203BC(2) of the NTA; and (v) without authorisation by the GJJ and DJDJ claim groups meeting as separate groups and then as a combined group for the purpose of authorising a new combined native title claim given in accordance with s 251B of the NTA. (f) In the circumstances outlined in (a) to (e), the respondent misrepresented to Woodside, the State, the Commonwealth and Aboriginal people of the Kimberley region, in public and private oral and written statements at various times between about early 2007 and the present, that: (i) the respondent was authorised to - 1. negotiate with Woodside and the State to pursue the development of an LNG Precinct on the Dampier Peninsula, including at James Price Point; 2. negotiate an ILUA for the proposed development of an LNG Precinct at James Price Point on behalf of the GJJ claim group; 3. enter into the Heads of Agreement and Heritage Protection Agreement relating to the proposed development of the LNG Precinct at James Price Point on behalf of the GJJ claim group; (ii) the same people who had decided in 2005 that permission to develop an LNG Precinct on the Dampier Peninsula should be refused had decided that the development should be allowed to proceed; (iii) "the process was clear and transparent, and was driven by Traditional Owners"; (iv) "all decisions were made by Traditional Owners"; (v) "all Traditional Owners were invited, and given every opportunity, to participate in the consultation process"; (vi) "at all times the Kimberley Land Council acted under instructions from Traditional Owners" (vii) "the Kimberley Land Council made its best efforts to provide information to Traditional Owners so that they could make informed decisions"; (viii) "the right people made their own decisions about their own country". 4. The applicant claims that the respondent is precluded by a conflict of interest and duty arising from the circumstances referred to in subparagraphs 3(a) to (f), from: (a) continuing to represent the GJJ native title claim group in connection with the conduct of the GJJ native title claim or any matter arising under the NTA in relation to the GJJ native title claim, including any future consultations or negotiations relating to or arising out of the proposed development of an LNG Precinct at James Price Point; (b) representing any other native title claim group in connection with the conduct of a native title claim which overlaps the GJJ native title claim or any matter arising under the NTA in relation to such native title claim, including any future consultations or negotiations relating to or connected with the proposed development of an LNG Precinct at James Price Point. 5. The applicant claims relief as follows on the grounds stated in the accompanying statement of claim: (a) A declaration that the respondent was not authorised to invite Woodside and the State to reconsider the possibility of developing an LNG Precinct on the Dampier Peninsula following refusal of consent by Law Bosses to permit such development in September 2005. (b) A declaration that the respondent misrepresented its authority to invite Woodside and the State to reconsider the possibility of developing an LNG Precinct on the Dampier Peninsula following refusal of consent by Law Bosses to permit such development in September 2005. (c) A declaration that the respondent was not authorised by the GJJ claim group to negotiate with Woodside, the State and the Commonwealth in connection with an indigenous land use agreement permitting development of an LNG Precinct at James Price Point. (d) A declaration that the respondent misrepresented its authority to negotiate an indigenous land use agreement permitting development of an LNG Precinct at James Price Point. (e) A declaration that the respondent was not authorised by the GJJ claim group to enter into a Heads of Agreement with Woodside and the State in April 2009. (f) A declaration that the respondent was not authorised by the GJJ claim group to enter into a Heritage Protection Agreement with Woodside and the State in October 2009. (g) A declaration that the respondent misrepresented its authority to enter into the Heads of Agreement and the Heritage Protection Agreement on behalf of the GJJ claim group. (h) A declaration that the respondent was not authorised by the GJJ claim group to negotiate with the State for a consent determination of native title to all of the land and waters comprised in the Djabera Djabera and Goolarabooloo/Jabir Jabirr native title claims on behalf of Jabirr Jabirr people, which was intended to exclude the interests of the Goolarabooloo people. (i) A declaration that the respondent is precluded by a conflict of interest and duty from continuing to represent the GJJ native title claim group in connection with the conduct of the GJJ native title claim or any matter arising under the NTA in relation to the GJJ native title claim. (j) A declaration that the respondent is precluded by a conflict of interest and duty from representing any other native title claim group in connection with the conduct of a native title claim which overlaps the GJJ native title claim or any matter arising under the NTA in relation to such native title claim. (k) An order restraining the respondent from continuing to represent the GJJ native title claim group in connection with the conduct of the GJJ native title claim or any matter arising under the NTA in relation to the GJJ native title claim. (l) An order restraining the respondent from representing any other native title claim group in connection with the conduct of a native title claim which overlaps the GJJ native title claim or any matter arising under the NTA in relation to such native title claim. (m) An order restraining the respondent from disclosing any legal advice, anthropological evidence or other confidential information relating to the GJJ native title claim to any person without the prior written permission of the applicant in the GJJ native title claim, or without leave of the Court. (n) Such further or other order as the Court sees fit. (o) An order that the respondent pay the applicant's costs on an indemnity basis. 32 It is evident that Mr Roe's proposed amended application under Part IVA of the FCA is significantly different from the present application in that: (i) It is a representative proceeding under Part IVA of the FCA; (ii) It is no longer brought on behalf of the members of the GJJ native title claim group; (iii) Mr Roe is the only applicant; (iv) There are three classes of group members to whom the proposed proceeding is said to relate: (a) the so-called "Law Bosses" listed in Schedule 1, (b) members of the Hunter/Roe family group listed in Schedule 2 (who are also members of the GJJ claim group), and (c) the persons listed in Schedule 3 (some of whom are members of the GJJ claim group); (v) The allegations are not limited to the KLC's negotiations over the LNG facility at James Price Point but extend to include negotiations over the whole of the Dampier Peninsula; (vi) It includes allegations of misrepresentation to various third parties; (vii) It includes new allegations about the KLC entering into a Heritage Protection Agreement on behalf of the GJJ claim group; (viii) It claims different relief. 33 Accordingly, the amended application proposes to introduce new class members, new causes of action and new issues. The KLC submits that if those causes of action are maintainable, which it contends they are not, then they should be the subject of fresh proceedings, or alternatively if the amendment is allowed, Mr Roe should be ordered to immediately pay the costs of the amendment and the costs thrown away by the KLC on an indemnity basis.

Consideration 34 There is no question that, subject to the NTA, this Court is conferred with jurisdiction in relation to matters arising under the NTA by virtue of s 213(2). 35 It is my opinion that in relation to the present proceeding both this Court's jurisdiction, by s 213(2), and standing, by s 62A, are conferred by the NTA. Standing, in effect, by s 62A is granted exclusively to the applicant to deal with all matters arising under the NTA in relation to the claimant application. This proceeding is unequivocally stated to be brought on behalf of the GJJ native title claim group in native title claim WAG 6002/98 and which incorporates WAG 6014/98. 36 A claimant application within the meaning of s 253 of the NTA, by virtue of NTA s 61(1), may only be brought by a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the native title claimed. Then, under s 61(2)(c) and (d) relevantly, the person is, or the persons are, jointly, the "applicant" and none of the other members of the native title claim group is the "applicant". Section 62A(a) provides relevantly that in the case of a claimant application the applicant may deal with all matters arising under the NTA in relation to the application. An application for a determination of native title is a representative proceeding. 37 Mr Roe submitted that s 62A, in its terms, and particularly by use of the word "may" is permissive only but does not confer standing exclusively upon the applicant in respect of dealing with all matters arising under the NTA in relation to the application. I do not accept this submission. One of the main objects of the NTA by s 3(c) is to establish a mechanism for determining claims to native title. An evident purpose of s 62A, read together with s 61, as part of achieving that objective, is to confer upon the applicant, and upon no other members of the native title claim group the entitlement to deal with all matters arising under the NTA in relation to the application. 38 This, in effect, was the view of Drummond J in Ankamuthi People v State of Queensland (2002) 121 FCR 68. There, as in the present case, dissension had developed within the claim group, the Ankamuthi People, such that a large majority of them were unhappy with the way their native title claim was being conducted by their authorised applicants in respect of three native title applications. A notice of discontinuance was filed by a Land Council purportedly on behalf of the Ankamuthi People or at least the great majority of them. Rejecting the validity of the notice his Honour stated at [7]-[8]: 7. The provisions of that Act are clear. Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group. Such a proceeding is obviously a representative proceeding. By s 61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant. 8. It is clear enough from that provision that it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings. That follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant. But if more were needed, it is to be found in s 62A, which explicitly states that to be the position. 39 The meaning of the word "may" in s 62A is not, in my opinion, informed by cases concerned with whether "may" imports a discretion or whether properly understood it creates an obligation as though the word "shall" or "must" had been used. Rather it is permissive or empowering and is to be read as though it contained the following italicised words "… it is the applicant who may deal …". Looked at in that way, having regard to the purposes of the NTA no one else is so empowered, whether or not they are a member of the relevant claim group. 40 Stone J in Johnson on behalf of the Barkandji (Paakantyi) People v Minister For Land and Water Conservation for the State of New South Wales [2003] FCA 981 at [8] observed that: The history of Pooncarie Barkandji (Paakantyi) People #8 shows that there have been persistent problems in the relations between Dorothy and Philip Lawson and other applicants. In the proceedings presently under consideration there have been attempts to have the applicants separately represented; that is to have Mr Dengate represent the Lawsons with the other applicants represented by someone else. These attempts reveal a fundamental misunderstanding of the role of applicants in native title determination applications. Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable. 41 Kiefel J observed to similar effect in Butchulla People v Queensland (2006) 154 FCR 233 at [38], that: The evident purposes of s 61 are to provide for representation of the claim group, to limit the number of persons who may act as 'the applicant' in the proceedings and, when more than one person is authorised, to require them to act in concert with each other. It may be assumed that since the persons authorised have a common interest in the subject matter of the claim acting jointly should not present a difficulty. Regrettably this is not always the case. In any event the section seeks a workable and efficient method of prosecuting claims for native title determination, one which limits the potential for dispute which might stifle the progress of claims. 42 I accept the submission of the KLC that it is only the applicant in the GJJ native title claim, Mr Roe and Mr Shaw acting jointly, who has standing to sue the KLC on behalf of the GJJ native title claim group. Indeed, as I earlier mentioned, counsel for Mr Roe later acknowledged this to be the case but concluded in effect that the position could be cured through orders which the Court could make under s 84D NTA. I now consider that submission.

Section 84D NTA 43 Section 84D provides as follows: 84D Proceedings affected by possible defect in authorisation (1) The Federal Court may make an order requiring: (a) a person who, either alone or jointly with another person, made an application under s 61, to produce evidence to the court that he or she was authorised to do so; or (b) a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so. (2) An order under subsection (1) may be made: (a) on the Federal Court's own motion; or (b) on the application of a party to the proceedings; or (c) on the application of a member of the native title claim group or compensation claim group in relation to the application. (3) Subsection (4) applies if: (a) an application does not comply with s 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or (b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so. Note: s 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them. (4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice: (a) hear and determine the application, despite the defect in authorisation; or (b) make such other orders as the court considers appropriate." (emphasis added) 44 Section 84D of the NTA was inserted in 2007 upon the passing of the Native Title Amendment (Technical Amendments) Bill 2007 on 20 July 2007. The Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 explains the statutory purpose behind s 84D in the following terms: Item 88 After section 84C 1.280 Item 88 would insert proposed s 84D. 1.281 Section 61 sets out the requirements for making an application. A claimant application or a compensation application made by a compensation claim group must be made by a person or persons authorised to make the application (see s 61). The person or persons who are authorised to make the application are jointly 'the applicant'. Section 251B sets out the process for authorising the applicant to make an application and deal with matters arising in relation to the application. 1.282 Questions about the validity of the applicant's authorisation can arise at any stage during proceedings. For example, there may be doubts raised about whether the initial authorisation process authorising the making of the application was conducted properly. Even if the initial authorisation was valid, members of the claim group may suggest during proceedings that the person or persons who are the applicant have exceeded their authority in dealing with matters arising in relation to the application. Questions about authorisation may also arise if, for example, all of the persons who are the applicant die or become incapacitated or no longer wish to be the applicant. In circumstances where a deficiency in the authorisation of the claim is identified, it is unclear what steps the Court may take to address the problem. If the Court determines the application is not properly authorised, there is a question about whether the Court may continue to hear and determine the application. The inclusion of proposed section 84D seeks to clarify the Court's powers in relation to authorisation issues. 1.283 Proposed paragraph 84D(1)(a) would enable the Court to make an order requiring a person who made an application under section 61 to produce evidence to the Court that he or she was authorised to make the application. This may be appropriate where questions have been raised about the initial meeting authorising the making of the claim. Similarly, paragraph 84D(1)(b) would enable the Court to require a person who is dealing with the matter arising in relation to an application (as the applicant) to produce evidence showing that he or she is authorised to deal with matters arising in relation to the application. Such an order may be appropriate where there is some doubt as to whether the applicant continues to be properly authorised to deal with matters in relation to the application. 1.284 Proposed s 84D(2) would provide that the Court may make an order that evidence in relation to authorisation be produced, either on its own motion, or on application by a party to the proceeding or a member of the native title claim group or compensation claim group. 1.285 Proposed ss 84D(3) and 84D(4) deal with circumstances where it is apparent that the making of an application was not properly authorised, or where the person who has dealt with, or is dealing with, a matter arising in relation to the application was not properly authorised to do so. Subsection 84D(4) provides that the Court may, after balancing the need for due prosecution of the application and the interests of justice, hear and determine the application, even where the claim is not properly authorised. While the requirements for an application to be properly authorised and for the applicant to be authorised by the claim group to deal with matters arising in relation to the application are very important, there may be circumstances in which the Court considers that it would be in the interests of justice to continue to hear and determine the application. 1.286 Determining whether it is in the interests of justice for the Court to hear and determine an application despite a defect in authorisation will be a matter for the Court to consider in the particular circumstances of the case. Relevant factors may include the nature of the defect in authorisation, whether the applicant is now authorised to deal with matters arising in relation to the application and whether the application has progressed to trial or mediation, or is still at the preliminary stages. 1.287 Proposed paragraph 84D(4)(b) would also enable the Court to make such other orders as the Court considers appropriate. These orders may be made in addition to the Court hearing and determining the application or the Court may make any such orders it considers appropriate without hearing and determining the application. 1.288 There are a wide range of orders the Court may make, including orders about the use of evidence already taken in the proceedings or orders about the replacement of the applicant. For example, where the evidence produced following an order made under proposed s 84D(1) indicates that the applicant is no longer authorised, the Court could make an order that the application be dismissed within a certain time period if a member or members of the claim group do not make an application under section 66B to replace the applicant. Any application to replace the applicant should be made under s 66B, rather than by the Court directly under proposed s 84D(4), as an order made pursuant to s 66B will have certain consequences. In particular, the Registrar is required to amend the Register of Native Title Claims following an order under s 66B so that the details of the applicant are up-to-date. 1.289 Section 23 of the Acts Interpretation Act provides that, unless the contrary intention appears, words in the singular include the plural. References in s 84D to a 'person' who is not authorised would therefore also include where all persons who make up the applicant are not authorised. (emphasis added) 45 The Commonwealth Government, Technical Amendments to the Native Title Act 1993: Second Discussion Paper, Attorney-General's Department, Commonwealth Government, Canberra, 2006 also sets out quite clearly, the context and the statutory purpose behind s 84D. The discussion paper relevantly states from [44]-[47] as follows: Division 1 of Part 3: clarification of authorisation requirements 44. The Native Title Claims Resolution Review found that resolution of native title claims was impeded by disputes among claimants about questions such as authority to act on behalf of the group, and disputes both within and between groups. It recommended (recommendation 13) that amendments be made to the authorisation provisions in the NTA to remove ambiguities. The Review suggested it would be appropriate to clarify whether: • a lack of authorisation is fatal to a claim • authorisation that might have been defective can be later ratified or otherwise cured, and • the registered native title claimants must be unanimous in giving instructions, executing agreements and otherwise, or whether a majority is sufficient, or whether some other rules should apply, for example, rules similar to those in ss 251A and 251B. 45. The Government agreed to consider this in the context of the technical amendments. A number of other submissions also suggested that the authorisation requirements should be clarified. 46. The question as to whether identified deficiencies in the authorisation process will be fatal to the claim will, if raised, ultimately be determined by the Court, and it would not be appropriate to seek to impose a blanket statutory rule in relation to this requirement. However, to the extent that lack of authorisation may be regarded as fatal, it would be appropriate to provide an appropriate mechanism through which it may be cured. In particular, this will assist in ensuring the Court will have jurisdiction to determine a claim in which there has been extensive hearings and evidence taken. Accordingly, it is proposed to include a provision which makes clear the Court may make an order to continue to hear a native title determination notwithstanding a defect in the original authorisation process, provided it is satisfied that such an order is necessary in the interests of justice. The Court would be given discretion to make such other orders as are appropriate, including orders dealing with use of evidence received in the proceedings, replacement of the applicants, and notification to other parties. 47. With respect to the final suggestion, it is not considered possible to specify whether the registered claimants, or the named applicants, must be unanimous in giving instructions or executing agreements. The source of authority for the named applicants will ultimately rest on their authorisation in accordance with the rules established in ss 251A and 251B. This is intended to ensure the process complies with either a traditional decision making process or one otherwise agreed to by the relevant group. It would be inconsistent with the nature of native title rights and interests to superimpose requirements of 'unanimity' or majority vote. To the extent that disputes arise in relation to the respective authority of different named applicants, this would need to be resolved in accordance with the provisions for replacing an applicant in s 66B. However, given the concerns identified in the Claims Resolution Review, it would be appropriate to clarify the nexus between s 66B and s 251B. Thus, s 66B should be amended to expressly recognise that s 251B prescribes the decision making process by which authorisation may be withdrawn. (emphasis added) 46 Mr Roe, in his written submissions in reply, contends that the KLC's submissions concerning s 84D take too narrow a view of circumstances in which the discretion under s 84D(4) may be enlivened, a view which, he argues, is not supported by a textual analysis of provisions relevant to this case citing s 84D(3)(b) and s 84D(4)(b). 47 Mr Roe relies particularly on that part of s 84D(3)(b) which provides that subsection (4) applies if "a person who is…one of the persons who are…the applicant in relation to the application…deals with a matter arising in relation to the application in circumstances where the person was not authorised to do so". He says that he is such a person in that: (a) The "application" referred to is the GJJ native title claim WAG 6002 of 1998. (b) Issues raised by this proceeding, particularly those relating to the question whether the KLC is precluded by a conflict of interest and duty from continuing to represent the applicant in WAG 6002 of 1998, are a "matter arising in relation to the application". The allegations of conflict of interest and duty necessarily engage the wider allegations concerning the conduct of the KLC and its employees and agents which has given rise to the conflict of interest and duty. (c) By bringing the proceeding in their capacity as the applicant in WAG 6002 of 1998, Mr Roe and Mr Shaw were dealing with a "matter arising in relation to the application". (d) The KLC's submissions acknowledge that it was within the scope of Mr Roe and Mr Shaw's authority to do so in their joint capacity as the applicant in WAG 6002 of 1998. (e) Mr Shaw has changed his positions several times in relation to his support for the proceeding. The circumstances in which he did so are an important issue in the case. Nevertheless it is common ground that persons who constitute the applicant in a claimant application must act collectively in dealing with matters arising under the NTA in relation to the application. (f) It follows that Mr Roe is not authorised to continue the proceeding in the same capacity in which he commenced the proceeding jointly with Mr Shaw. (g) Ignoring for present purposes the question whether Mr Roe has standing to continue the proceedings in an individual and/or representative capacity on a different basis, the position therefore is that Mr Roe is dealing with a matter arising in relation to application WAG 6002 of 1998 in circumstances where he is not authorised to do so. 48 Accordingly, Mr Roe submits that the conditions stated in s 84D(3)(b) for the provisions of s 84D(4) to apply are satisfied in this case and that the Court's discretion in s 84D(4)(b) to "make such orders as the court considers appropriate" is enlivened in circumstances where, as in this case, a person in his position is dealing with a matter arising in relation to a claimant application in circumstances in which he is not authorised to do so. 49 Mr Roe submits that lack of authority to deal with a matter arising in relation to a claimant application does not in itself prevent a person in his position from continuing to deal with the matter, provided circumstances exist warranting the exercise of the Court's discretion under s 84D(4)(b), the exercise of which must be informed by considerations relating to the need for due prosecution of the application (i.e. WAG 6002 of 1998) and the interests of justice. Subject only to those considerations he submits that the Court may make whatever orders it considers to be appropriate in the circumstances. 50 He submits that it is appropriate in this case to permit him to continue to deal with a matter arising in relation to a claimant application notwithstanding his lack of authority to do so, particularly where, as in this case, an alternative course, such as holding an authorisation meeting of the claim group, is not practicable, given the KLC's stance that the group is "dysfunctional" and "incapable of making a decision", or likely to be attended by difficulty. 51 In my opinion s 84D is not a source of power for the Court to make any orders in this proceeding. Rather it confers on the Court a discretion in native title proceedings to hear and determine a claimant application notwithstanding any defect in the applicant's authorisation or to make such other orders as the Court considers appropriate. The application variously referred to in s 84D including in s 84D(4) by which the Court "may, after balancing the need for due prosecution of the application" decide to hear and determine or make other orders, is an application made under s 61 of the NTA. Counsel for Mr Roe conceded as much. The present application (WAD 74 of 2010) is not such an application nor is the present motion to amend which is made within it. 52 The discretion of the Court under s 84D(4)(b) to make "such other orders as the Court considers appropriate" falls to be construed upon a consideration of the whole of s 84D, Part 4 in which it appears and the NTA. Part 4 of Division 1 of the NTA, as the overview to it provides, has the rules for processing Federal Court applications, and making determinations, relating to native title. Considered in that context the "other orders" contemplated are orders relating to or concerning "the application", that is the application made under s 61 (WAG 6002 of 1998), not a proceeding such as the present. 53 As the Explanatory Memorandum states, such orders might be in addition to the Court hearing and determining the s 61 application or, alternatively, making orders without hearing and determining the application. These might include orders about the use of evidence already taken in the proceedings or about the replacement of the applicant such as an order that the application be dismissed within a certain time period if a member or members of the claim group do not make an application under s 66B of the NTA to replace the applicant. I do not regard the orders sought by Mr Roe in this quite separate proceeding against the KLC as coming within the compass of this provision. 54 Section 84D does not provide any basis for Mr Roe to acquire standing in this application as presently formulated. Mr Roe's counsel has conceded that, if he is wrong about the effect of s 84D, Mr Roe has no standing to bring the present application. 55 In the whole of the circumstances I am not disposed to amend the present proceeding to convert it into a completely new proceeding, with Mr Roe as the sole applicant. Mr Shaw, one of the present joint applicants opposes the motion and seeks to have the proceedings dismissed. Mr Roe has known, since at least 20 April 2010, that Mr Shaw disavowed this proceeding. Nonetheless in the face of this and by one tack or another Mr Roe has attempted to press on. Mr Roe's counsel acknowledged, appropriately in my view, as far back as 17 May 2010 that any new representative proceeding would involve the commencement of new proceedings. That, in my view, has been and remains the appropriate course in this case. 56 For all of the above reasons I would refuse leave to amend the substantive application. It should be dismissed. Each of the applicant's motions dated 14 May 2010 and 13 July 2010 will be dismissed.

Costs 57 The KLC and Mr Shaw seek costs against Mr Roe on an indemnity basis. I am not satisfied that costs should be ordered against Mr Roe on that basis. 58 Although I have rejected his submissions as to s 84D I would not be prepared to categorise these as hopeless or bound to fail. Nonetheless I consider that they had little merit and that, overall, it was unreasonable of Mr Roe to have pressed on in the current proceeding and, despite his earlier view stated through counsel, moved a wholesale amendment rather than instituting fresh proceedings. I have in mind what I said in Tullock v State of Western Australia [2010] FCA 351 at [21]-[25]. Mr Roe should pay the costs of Mr Shaw and the KLC in respect of the proceedings including the notices of motion. 59 There will be orders accordingly. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Native Title Act 1993(Cth)ss 3(c), 13, 61, 62A, 66B, 84D, 203BB, 203BC, 213(2), 253

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