Sandow v State Minister for the State of Queensland [2025] FCAFC 140

1. On 31 January 2024, a series of meetings to authorise two new native title determination applications by the Bigambul People were notified in the Koori Mail and Courier Mail. The notice provided as follows:

1. The "second claim" referred to in the notice would partly overlap with the native title determination application brought on behalf of the Gamilaraay People (QUD290/2017) (Gamilaraay claim). The overlap area commenced at the intersection of the New South Wales and Queensland border and extended north and north-west to Woongallon, taking in Talwood and parts of the Weir River.
2. At the first meeting on 26 February 2024 at Cherbourg, the second claim was authorised. The chair called for, and received, nominees for the applicant and replacement applicant for the second claim. The first meeting then voted unanimously in favour of a resolution that the nominees be authorised as, respectively, the applicant and the replacement applicant for the second claim.
3. At each of the remaining meetings the second claim, the applicant and replacement applicant were authorised. Unlike the first meeting, the attendees at the remaining meetings were not given the opportunity to nominate alternative members of the applicant. At the second meeting on 27 February 2024 at Brisbane:

The Chair explained that the names of the applicants were inserted in yesterday's meeting and cannot now be amended. The only choice is to vote for or against. No amendment can be made.

1. At each of the remaining meetings, a majority voted in favour of the resolution authorising the second claim, the applicant and replacement applicant. On 27 June 2024, the Bigambul #5 claim was filed in this Court.

1. On 4 July 2024, the members of the applicant for the Gamilaraay claim (Gamilaraay applicant) were joined as respondents to the Bigambul #5 claim. The joinder was for the limited purpose of prosecuting an interlocutory application by which they sought orders that the Bigambul #5 claim be struck out pursuant to s 84C of the Act and removed from the Court file.
2. Section 84C empowers the Court to strike out a native title determination application that does not comply with s 61 of the Act. Section 61(1) relevantly provides that a person or persons authorised by the native title claim group may make an application as mentioned in s 13(1) for a determination of native title in relation to an area for which there is no approved determination of native title.

1. In making the orders the subject of the application for leave to appeal, the primary judge found (at [50]):

... that the 31 January 2024 Notice was fatally misleading. In particular, the 31 January 2024 Notice purported to arrange a convocation of people to come to one of four meeting centres to attend "consultation and consent meetings" for the purpose of authorisation the Bigambul #5 Claim. In reality only those at the Cherbourg meeting on 26 February 2024, notably the first of the meetings, would have the opportunity to determine the composition of the Bigambul #5 Applicant.

(Emphasis in the original)

1. Her Honour went on to conclude that (at [59]):

The denial of opportunity to Bigambul claim group members to nominate alternative members of the Bigambul #5 Applicant was, in my view, fatal to the authorisation process. This is not an issue which is susceptible to subsequent amendment in documentation filed in support of the Bigambul #5 Claim. As such the Bigambul #5 Claim should be struck out pursuant to s 84C of the Native Title Act on the basis that the Bigambul #5 Applicant was not properly authorised.

1. The primary judge additionally found that the Bigambul #5 claim was, impermissibly, brought on behalf of a subset of the Bigambul People and that making and prosecuting the native title determination application was an abuse of process. In finding that the Bigambul #5 claim was an abuse of process, her Honour noted, amongst other matters, that the claimant application was filed three days after the Gamilaraay claim was listed for a consent determination. This had the consequence that for a second time the Gamilaraay claim could not proceed to a consent determination because of an overlapping native title determination application by the Bigambul People.

1. As outlined above, the Bigambul #5 applicant sought leave to appeal the judgment on four grounds, only three of which were pressed at the hearing of the appeal.
2. The critical ground is ground 1, which concerns the primary judge's findings extracted at [13] and [14] above, and contends:

The learned primary judge erred by concluding (at Reasons [50] and [56]-[59]) that the 31 January 2024 notice of authorisation meetings was misleading, and that the participants at those meetings were denied a reasonable opportunity to participate in the decision-making process, when the learned primary judge should have concluded that the authorisation meetings were effective to authorise the Bigambul #5 Claim because:

(a) the 31 January 2024 notice of authorisation meetings was not affected by any defect;

(b) resolutions proposed to each authorisation meeting conduct were capable of acceptance or rejection;

(c) participants at the 27 February 2024 meeting were able to move dissent in the ruling of the chairperson that no nominations of proposed members of the applicant could be received; and

(d) the balance of voting between all four authorisation meetings was such that Bigambul People, as a group, should be taken to have authorised the Bigambul #5 Claim.

1. The second and fifth grounds of appeal concern the findings made by the primary judge summarised at [15] above. By ground 2, the Bigambul #5 applicant contends that the primary judge erred in concluding that the Bigambul #5 claim was brought by a subset of the Bigambul People. By ground 5, the Bigambul #5 applicant challenges the adequacy of the reasons given by the primary judge on the abuse of process ground.

1. The judgment of the primary judge was interlocutory in that legally (if not practically) it did not finally determine the rights of the parties at issue in the proceedings: Bodney v Bropho & Ors [2004] FCAFC 226; (2004) 140 FCR 77 at [64] (Stone J, Spender and Branson JJ agreeing) citing Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246; Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767. As such, the Bigambul #5 applicant requires leave to appeal: Federal Court Act, s 24(1A) and (1D)(b).
2. The principles governing the grant of leave are well established. First, whether the judgment is attended with sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, assuming the decision is wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 to 399 (Sheppard, Burchett and Heerey JJ). The second consideration is particularly likely to work in favour of an applicant where, as here, the interlocutory decision is, in effect, final: Sharp v DCT (NSW) [1988] FCA 76; (1998) 19 ATR 908 at 909 (Burchett J), citing Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225 to 226 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ).
3. The sufficiency of the doubt in respect of the decision and the question of substantial injustice bear on each other, so that the degree of doubt which is sufficient in one case may be different from that required in another: Sharp at 910. A significant factor in this matter is the finality, in effect, of striking out the Bigambul #5 claim. The practical consequence of the orders is to bring the proceeding in which the Bigambul People seek a determination of native title over the overlap area to an end. Given that circumstance, we consider that this is an appropriate case for the grant of leave.

1. The Bigambul #5 applicant accepts that the notice failed to communicate that nominations for the applicant would only occur at the first meeting and that, as such, those attending the remaining meetings were denied the opportunity to nominate members of the applicant and replacement applicant.
2. They say, however, that there was no practical injustice resulting from the denial of the opportunity to nominate members of the applicant. That is because (it is said) those attending the remaining meetings could have voted against the resolution and those attending the second meeting could have moved dissent of the ruling of the chair extracted at [9] above, but in either case the resolution to bring the Bigambul #5 claim was passed by a clear majority across the meetings. As such, the Bigambul #5 applicant contends by ground 1 that the primary judge erred in finding that the defect in the notice was "fatal to the authorisation process."
3. The ground of appeal is without substance.
4. As French J observed in Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43]:

....it is of central importance to the conduct of native title determination applications that those who purport to bring them and to exercise, on behalf of the native title claim groups, the rights and responsibilities associated with such applications, have the authority of their groups to do so. The authorisation requirement acknowledges the communal character of traditional law and custom which grounds native title - Western Australia v Strickland [2000] FCA 652; (2000) 99 FCR 33 at 52; see also Moran v Minister of Land and Water Conservation (NSW) [1999] FCA 1637.

1. The process by which authorisation of the applicant is to occur is prescribed by s 251B of the Act. Where, as here, there is no process of decision making under traditional law and custom, s 251B(b) requires that:

....the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision - making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

(Emphasis added)

1. Section 251B(b) of the Act does not require that all members of the claim group be involved in the decision or a unanimous vote. A valid authorisation process does, however, necessitate that "members of the claim group are given every reasonable opportunity to participate in the decision-making process": Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 at [25] (Stone J).
2. This, in turn, requires that notice of an authorisation meeting is sufficient to enable the persons to whom it is addressed to judge for themselves whether to attend: Weribone on behalf of the Mandandanji People v State of Queensland [2013] FCA 255 at [40] (Rares J), citing Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466 (Black CJ, von Doussa and Cooper JJ). Such a notice not only safeguards a "reasonable opportunity" to participate, it also ensures that the decision-making process can proceed on the basis of an informed consent or vote: Weribone at [39] to [40]; see also, Bolton at [45] to [46] (French J).
3. As the primary judge found, the notice failed to afford those authorising the second claim a "reasonable opportunity" to participate in the decision-making process with respect to the authorisation of the Bigambul #5 applicant. That is because it failed to inform those to whom it was addressed that nomination of the applicant and the replacement applicant would only occur at the first meeting. That conclusion does not reflect a "technical" or "overly pedantic" approach to the procedural requirement of authorisation under s 251B of the Act: cf, Lawson at [25].
4. To the contrary, consistent with the authorities cited above, the primary judge's finding properly reflected the central importance of the applicant to the conduct of a claimant application and the requirement that those entitled to authorise the applicant be given a "reasonable opportunity" to participate in the decision-making process. That decision-making process was not confined to voting on the resolution, but materially included the opportunity to be involved in the nomination of the persons to be authorised as applicant and replacement applicant for the second claim. The failure of the notice to communicate that nomination of the applicant and replacement applicant would only occur at the first meeting was a fundamental part of that opportunity.
5. The Bigambul #5 applicant placed some emphasis on the concept of "practical injustice". That concept is found in the authorities with respect to procedural fairness at common law: see particularly, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] (Gleeson CJ). As Gleeson CJ there observed, "[w]hether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice". Even in that context, however, non-compliance with a requirement designed to ensure a fair process will nearly always be a material error: see, for example, Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [33], [35] and [39] (Kiefel CJ, Keane and Gleeson JJ), [41] and [55] (Gageler J), [76] to [77] (Gordon J).
6. It is not necessary to revert to the common law of procedural fairness to decide this appeal. The requirements of a valid authorisation process under s 251B of the Act material to the disposition of the appeal are aptly detailed in the authorities to which we have referred. What did, or could have, occurred at the remaining meetings is irrelevant to the validity of the authorisation of the Bigambul #5 applicant because the process miscarried when the notice failed to inform the claim group that they would only be given an opportunity to be involved in the nomination of the applicant if they attended the first meeting.
7. The decision of the primary judge to strike out the Bigambul #5 claim under s 84C of the Act on the ground that the Bigambul #5 applicant was not properly authorised is not attended by error.

1. Given the conclusion we have reached with respect to ground 1, and the concession made by the Bigambul #5 applicant that they need to prevail on all grounds to succeed on the appeal, it is unnecessary to consider grounds 2 and 5. We are confirmed in that view by the instructions obtained by counsel during the course of the appeal that the Bigambul #5 applicant would not seek to re-authorise a native title determination application over the overlap area, should the appeal be dismissed.

1. The application for leave to appeal is granted. The appeal is dismissed. There will be no order as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, Longbottom and Hill.