Smith v Marapikurrinya Pty Ltd

REASONS FOR JUDGMENT 1 The parties have asked the Court to make a declaration that the first respondent and the second and third respondents, in their capacity as directors of the first respondent, do not have and have not previously had authority to act for or on behalf of the applicants in relation to any matters. I declined for the reasons that follow to make these declarations. As no other relief was sought I ordered on 16 June 2011 that the application be dismissed with no order as to costs. These are my reasons for ordering. 2 These reasons require to be read together with my earlier related reasons delivered on 6 April 2011: Smith v Marapikurrinya Pty Ltd [2011] FCA 330. Those reasons should be treated as forming part of these present reasons. 3 I made the following orders on 6 April 2011: 1. The Registrar of the Court deliver copies of the papers filed in this proceeding together with a copy of these reasons to the solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998: Teddy Roberts v State of Western Australia by 12 April 2011. 2. The solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998 file and serve any written submissions they wish to make in relation to this matter and, in particular, the issue of standing of the applicants by 29 April 2011. 3. The matter be listed for further directions at 9.45 am on Tuesday 3 May 2011. 4 Since the delivery of the earlier reasons further hearings occurred at which the parties reiterated their request for the same declaratory relief and where the applicant advised the Court that it would seek no other relief if the declarations were not made. 5 Solicitors for the applicant in the Kariyarra Peoples Native Title Claim WAD 6169 of 1998 filed written submissions although not a party to this proceeding. This applicant appeared by counsel at the first of the adjourned hearings. These submissions sought to persuade me that the present claim for relief by the parties could be distinguished from the position found in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 because, as it seemed, the present applicants had brought the claim on their own behalf and because the declaratory relief sought does not relate to or affect the rights of the Kariyarra People native title claim. No submission was made on the question whether the Court ought exercise its discretion such as to grant the declaratory relief. 6 These submissions add nothing to those already put by the parties and to which I adverted at [8] in particular in my earlier reasons. I had hoped that more light would have been shed on just what, factually, has occurred and which has given rise to the present proceedings. 7 The originating application dated 28 January 2009 did not seek declaratory relief. The applicants in their original statement of claim claimed injunctive relief as well as damages under ss 82 and 87 of the Trade Practices Act 1974 (Cth) for alleged breach of s 52 of that Act, and alternatively under the equivalent provisions of the Fair Trading Act 1987 (WA). The claims for damages were abandoned in the applicant's amended statement of claim dated 10 June 2010. No claim for declaratory relief was introduced. The motion for summary dismissal which was refused by Lucev FM on 29 January 2010 accordingly proceeded on the basis of the original pleading filed by the applicants: Smith v Marapikurrinya Pty Ltd [2010] FMCA 5. His Honour was not concerned with any claim for declaratory relief. Moreover, no interim interlocutory relief as claimed in the originating application was ever pressed. The claim for final injunctive relief is no longer pressed. 8 Accordingly, none of the relief sought in the application is now pressed. The declaration now sought strictly lies outside of the application, but I have treated it as though it were formally before the Court. 9 Reeves J in Australian Competition and Consumer Commission v Grove & Edgar Pty Ltd [2008] FCA 1956 at [17]-[21] canvassed the relevant principles in relation to the making of declarations by a court sought by consent of the parties. 10 His Honour rightly pointed to the need for the court to be satisfied that it has the power to do so and to ensure that the declarations are appropriate to be made. 11 The applicants place some emphasis on the observations of French J (as his Honour was) in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at [20] that the Court ought not impede settlements by refusing to give effect to the terms of settlements made by the parties where the proposed orders are within the Court's jurisdiction and appropriate. 12 The Court plainly has a wide discretionary power to make declarations of right under s 21 of the Federal Court of Australia Act 1976 (Cth): Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99. 13 The question was, before the last hearing, and remains, whether the making of the declaration is appropriate. 14 Whether it is appropriate for the Court to make declarations is a matter informed, relevantly, by the following: (a) a declaration must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ and Dawson, Toohey and Gaudron JJ. (b) a declaration will not be granted if it will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 69 per Mason J or have no utility: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99 per Sheppard J. 15 The declaration sought is in the widest of terms: that the first respondent and the second and third respondents in their capacity as directors of the first respondent do not have, and have not previously had authority to act for or on behalf of the applicants in relation to "any matters". 16 Declarations which are a judicial act, should only be made on evidence and not simply on admissions or deemed admissions: Bank of Kuwait and the Middle East v Ship MV "Mawashi Al Gasseem" (No 2) (2007) 240 ALR 120 at [10]; Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665. 17 The only evidence tendered by the parties is the content of the Statement of Agreed Facts dated 13 July 2010. I set this out in my earlier reasons at [12] but repeat it below for ease of reading: Statement of Agreed Facts 1. The Applicants and the Second and Third Respondents are Aboriginal people that live in Port Hedland and South Hedland, Western Australia. 2. The Applicants are the children of Molly Dann. 3. The First to Third Applicants and Second and Third Respondent are claimants listed at Attachment A to the Native Title Determination Claim of the Kariyarra People, being Federal Court Action WAG 6169 of 1998 (the Native Title Claim). 4. The Native Title Claim covers the area of Port Hedland and surrounding land and waters. 5. The third Respondent is a named applicant in the Native Title Claim. 6. The Second and Third Respondents are the sole directors and shareholders of the First Respondent. 7. The Applicants have no legal or beneficial interest in the First Respondent. 8. The First Respondent by its officers the Second and Third Respondent has negotiated agreements in relation to heritage surveys and has engaged heritage consultants and Aboriginal people to conduct heritage surveys, in the area of the Native Title Claim. 9. On 3 December 2007 the First Respondent entered into an agreement with BHP Billiton Iron Ore for the conduct of heritage surveys. This agreement was not entered into by the First Respondent as agent for or otherwise for and on behalf of, the Applicants and was not contractually binding on them. 10. In or about 2008 the First Respondent arranged heritage surveys for Fortescue Metal Group Ltd in and around Port Hedland. 11. The activities of the First Respondent referred to in paragraphs 8 to 10 were not conducted by it as agent for the Applicants and the First Respondent did not otherwise have authority to contractually bind the Applicants in respect of any agreements it may have entered into. 12. The Applicants have not given the First Respondent authority to act for or on behalf of the Applicants in relation to any matters, whether by its directors, the Second or Third Respondent, or otherwise. 18 It may be seen that it is agreed that each of the agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd were not entered into by the first respondent as agent for or otherwise for and on behalf of the applicants and was not contractually binding on them. It is then agreed, but without any attempt at specificity at para 12 of the Agreed Facts that the applicants have not given the first respondent authority to act for or on behalf of the applicants in relation to any matters, whether by its directors, the second or third respondent, or otherwise. The amended statement of claim throws no light on what these "matters" might be. 19 So far as concerns the agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd are concerned, Lucev FM in Smith v Marapikurrinya recounted at [6], as the present respondents contended: 6. (a) the applicants allege that in general terms, Fortescue Minerals Group and BHP Billiton Iron Ore have entered into agreements with the first respondent on the basis of false or misleading representations as to the authority of the first respondent, which agreements were not authorised by "Kariyarra People"; (b) the uncontradicted evidence is that the only agreement between the first respondent and BHPBIO (and similarly in respect of FMG) was a heritage survey agreement, which agreement according to its terms was expressly authorised by the legal representative of the Kariyarra Native Title Claim Group; (c) the uncontradicted evidence of the respondents is and will be that they have no agreement with FMG, rather they have simply carried out some heritage surveys pursuant to authorisation from the Kariyarra Heritage sub-committee under the terms of a land access agreement between the KNTG and FMG. 20 These contentions of fact are supported on the affidavit evidence which was before Lucev FM. I considered this evidence, which is indeed uncontradicted. 21 Further it is nowhere alleged in the amended statement of claim that the first respondent represented that it acted on behalf of any of the applicants as individuals, which is, they say, the capacity in which they sue. Rather it is alleged that the first respondent represented that it acted as a representative of the Kariyarra People; was authorised to negotiate variously with third parties in relation to the rights of the Kariyarra People; was a part of the Kariyarra Native Title Claim Group; and was a corporate entity of the Kariyarra People. 22 I remain of the view that the applicants have no standing whether under the Native Title Act or otherwise to challenge the first respondent's conduct in acting in relation to these agreements on behalf of the whole Kariyarra Peoples. The applicants do not speak for them: only for themselves. Importantly, and in any event, there is, as I have said, no evidence that the first respondent has purported to act for the applicants as individuals: only for the entire claim group. 23 So much, in effect, was the submission made by the applicant in the Kariyarra Peoples Native Title Claim at the hearing before me: Insofar as the applicants seek other remedies, including damages, under s 87 of the Trade Practices Act a real issue arises as to whether they have suffered loss or damage in their own right (assuming there was a contravention by the respondents), or whether the loss or damage (if any) could only be suffered by the Kariyarra native title holders collectively. In the latter case, the Kariyarra Applicant submits that they are the only persons who have standing to seek relief under s 87. 24 It is, as those submissions went on to observe, unnecessary to resolve that issue as the damages claims have been abandoned. Nonetheless, it makes the point well that if there is any controversy at all it could only be between the applicant in that claim and the respondents, whether pursuant to the provisions of the Native Title Act or under the general law. 25 There is properly understood, no justiciable controversy between the parties which is identified in the Statement of Agreed Facts, the pleadings or the evidence directed to the subject matter of the proposed declaration. The supposed issue raised by the applicants as to whether the first respondent, and the second and third respondents as directors of the first respondent, have or have previously had authority to act for and on behalf of the applicants in any matters, is a false one. There is no utility in ordering a declaration in relation to a matter which is unsupported on the evidence. It is not, in my opinion, appropriate to make the declaration. 26 There being no other relief sought the substantive application ought be dismissed. The respondents did not seek costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.