Smith v Marapikurrinya Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 244 of 2011

JUDGES: STONE, SIOPIS AND COLLIER JJ DATE: 25 NOVEMBER 2011 PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Gilmour J made on 16 June 2011. His Honour published reasons for judgment (Reasons) on 28 June 2011: Smith v Marapikurrinya (No 2) [2011] FCA 733. Those reasons stated that they should be read in conjunction with reasons (Earlier Reasons) delivered by his Honour on 6 April 2011: Smith v Marapikurrinya Pty Ltd [2011] FCA 330. 2 The application that was the subject of his Honour's Reasons and Earlier Reasons was initially brought in the Federal Magistrates Court. It sought damages and injunctive relief against the respondents under the provisions of the Trade Practices Act 1974 (Cth). On 29 January 2010 the matter was transferred to this Court. 3 The application claimed that the first respondent had engaged in conduct that contravened s 52 of the Trade Practices Act. It was also claimed that the second and third respondents, who are directors of the first respondent were, directly or indirectly, knowingly concerned in or a party to that conduct for the purposes of s 75B of that Act. 4 The appellants alleged that the first respondent had represented that it is a representative of the Kariyarra People and entitled to act in that capacity in relation to a number of issues including a native title claim in proceeding WAD 6169 of 1998, Teddy Roberts & Ors v State of Western Australia (the Native Title Claim). They claimed that the first respondent is not: a representative of the Kariyarra People; a part of the Kariyarra Native Title Claim Group; a corporate entity of the Kariyarra People; or authorised to act on behalf of the Kariyarra People. 5 The matter did not proceed to trial. Rather, the parties filed a minute of consent orders to terminate the proceedings and asked the Court to make those orders. At [5] of his Earlier Reasons Gilmour J referred to the declarations and orders contained in the minute of consent orders. Only the declaration was controversial; it was in the following terms: 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. 6 His Honour was conscious of the need not to impede settlements by refusing to give effect to the terms of settlements made by parties. In particular Gilmour J referred to the comments of French J (as the Chief Justice then was) in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at [20] where his Honour said: It is not the function of the Court to impede settlements between parties legally represented and able to understand and evaluate the desirability of agreeing to a settlement nor to refuse to give effect to terms of settlement by refusing to make orders or accept undertakings where they are within the court's jurisdiction and are otherwise unobjectionable. 7 Justice Gilmour was of the view that in the present case the proposed declaration was "otherwise objectionable" for two reasons: first, his Honour held that the appellants had no standing to bring the proceeding; and secondly, because there would be no utility in making the declaration sought. 8 In an earlier decision, Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 Gilmour J had held that pursuant to s 62A of the Native Title Act 1993 (Cth), standing in a native title claimant application is granted exclusively to the "applicant" in that application to deal with all matters arising under the Native Title Act in relation to the application. His Honour was inclined to the opinion that the connection between the Kariyarra Native Title claim and the application before him was such that only the "applicant" in that proceeding had the requisite standing. Before expressing a concluded view his Honour made orders that the papers filed in the matter and a copy of his Earlier Reasons be served on the solicitor for the applicant in the Kariyarra Native Title claim "with a view to providing them with an opportunity to file submissions in relation to this matter …. by 29 April 2011". 9 In his Reasons for judgment Gilmour J observed that the applicants had abandoned their claim for injunctive relief and damages but had pressed their claim for a declaration as set out in [5] above. His Honour stated that although no claim for declaratory relief had been formally made and that, strictly, it was outside the ambit of the application he was prepared to treat it as formally before the Court. 10 Justice Gilmour summarised the principles applicable to the grant of declaratory relief and, in summary, said at [14] that the exercise of the Court's discretion should be informed 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. 11 His Honour further observed that declarations are judicial acts and "should only be made on evidence and not simply on admissions or deemed admissions". Ultimately his Honour also held, at [22], that the applicants had 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". 12 Central to his Honour's reasoning was the fact that it was not alleged anywhere in the Amended Statement of Claim that the first respondent had represented that it acted on behalf of the applicants as individuals. On the contrary it was alleged that the first respondent represented that it acted with the authority of the Kariyarra people. 13 Given that before his Honour the appellants had asserted that they had brought the proceeding on their own behalf as individuals and not as in any way representing the Kariyarra People his Honour's concern about the lack of standing was confirmed. Moreover there was no utility in making the declaration. His Honour said at [25] of his Reasons: There is properly understood, no justiciable controversy between the parties which is identified in the State 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. As no relief other than the declaration was sought his Honour dismissed the application with no order as to costs.

The Appeal 14 The Notice of Appeal was filed on 24 June 2011. The appellants appeal from the whole of Gilmour J's judgment on the grounds that his Honour erred in finding the appellants lacked standing to seek the relief sought and in refusing to make the orders sought. 15 On 2 November 2011 the respondents filed a submitting appearance in respect of the appeal. With the leave of the Court they did not appear at the hearing. It is always undesirable that there be no contradictor before the Court whether at trial or on appeal, however, as the respondents had consented to the orders being made by Gilmour J it is likely that they would have been of little assistance to the Court. 16 At the hearing of the appeal, Mr Rumsley, who appeared for the appellants made tenacious and articulate but ultimately unsuccessful submissions. In outlining the history of the matter he placed particular emphasis on the decision of the Federal Magistrate made before the matter was transferred to this Court: Smith v Marapikurrinya Pty Ltd [2010] FMCA 5. In the Federal Magistrates Court the respondents sought orders that the proceedings be summarily dismissed pursuant to s 17A of the Federal Magistrates Act 1999 (Cth) or, alternatively that the proceedings be transferred to this Court. 17 In considering the application for summary judgment the Federal Magistrate considered the pleadings in some detail. His Honour held, correctly in our view, that the Federal Magistrates Court has jurisdiction to grant injunctions under the Trade Practices Act and, at [85] of his reasons, that: In this case that jurisdiction could be exercised to cover alleged misrepresentation in relation to Aboriginal heritage matters, including misrepresentations in relation to matters under or associated with the [Aboriginal Heritage Act 1972 (WA)], as it is the misrepresentations which are complained about, not the processes under the [Aboriginal Heritage Act]. 18 His Honour also noted, with respect again correctly, that the Federal Magistrates Court does not have jurisdiction to deal with native title issues arising from the Native Title Claim. The question then arose whether the misrepresentation in relation to Aboriginal heritage issues would be an associated matter under the Native Title Claim. His Honour expressed the view that this was a factual issue and concluded, at [89]-[90]: A matter related to an Aboriginal heritage matter will not necessarily be a matter associated with a native title matter, either per se or in relation to this application (but whether it is so or not in this application is a factual matter to be determined): that is because it would be possible to argue that the alleged misrepresentations with respect to Aboriginal heritage matters would not relate to or be associated in any way with a native title claim. As indicated above, that matter is arguable in this case. Therefore, the Court does arguably have jurisdiction to grant a form of injunctive relief in these proceedings, albeit in quite a narrow form in relation to Aboriginal heritage matters. There is therefore a sufficient basis for the applicants to argue the matter, and for that reason the matter ought not be summarily dismissed … 19 In the light of these observations, Mr Rumsley submitted that his Honour was in error in not considering whether there was a separate basis for the applicant to claim standing in relation to issues under the Aboriginal Heritage Act. That submission overlooks the context of the question. 20 The appellants' claims as to misrepresentations made by the first respondent are based on their claim to be members of the Kariyarra Peoples. Only Kariyarra persons would have standing to claim that because the first respondent was not authorised to act on their behalf, it was misleading for it to claim that it acted on behalf of the Kariyarra Peoples as a whole. This would be so whether the claim was in relation to Aboriginal heritage issues or otherwise. 21 Justice Gilmour, in his Earlier Reasons at [8] noted that although none of the appellants is a member of the applicant in the Native Title Claim, the first to third appellants are claimants in that claim. It follows that their claim to be Kariyarra persons, which the Federal Magistrate, at [28], found to be a factual dispute in relation to a live issue, is a dispute that arises under the Native Title Claim irrespective of whether it also arises in relation to Aboriginal heritage issues. It was on this basis that Gilmour J found that there was a connection with the Native Title Claim sufficient to conclude that only the applicant in that claim had standing to pursue the alleged misrepresentations of the first respondent. 22 This much is clear from his Honour's comments on the submissions made on behalf of the applicant in that claim. His Honour said at [5] of his Reasons: 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. … These submissions add nothing to those already put by the parties … 23 His Honour concluded that the appellants had no standing "whether under the Native Title Act or otherwise" to challenge the first respondent's conduct in purporting to act "on behalf of the whole Kariyarra Peoples". We are inclined to the view that his Honour was correct however it is not necessary for us to reach a final conclusion on this issue. Despite the appellants' submissions to the contrary it is our view that his Honour's refusal to make the declaration sought by the appellants was an exercise of his discretion independent of his conclusion as to the appellants' standing. 24 At the heart of Mr Rumsley's submissions was a series of simple propositions leading to an equally simple conclusion. He argued that: the first respondent purports to act on behalf of the Kariyarra Peoples as a whole; in purporting to act on behalf of the Kariyarra Peoples as a whole the first respondent was also purporting to act on behalf of each and every individual Kariyarra person; each of the appellants is a Kariyarra person; the first respondent does not have authority to act on behalf of any of the appellants. Consequently, the proposition that the first respondent acts on behalf of the Kariyarra Peoples as a whole is false and misleading. 25 The difficulty for the appellants is that Gilmour J did not accept the premise in the second point above. This rejection is implicit in the comment at [22] of his Honour's Reasons: Importantly … 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. 26 The statement that there was no evidence that the first respondent had purported to act for the parties as individuals coupled with the acceptance that the first respondent had purported to act for the entire group must necessarily involve this rejection. In any event it is made abundantly clear at [25] where his Honour said: 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. 27 The statement of agreed facts was prepared by the parties at the request of his Honour. The statement complies with s 191 of the Evidence Act 1995 (Cth) and thus evidence is not required to prove the existence of the agreed facts and evidence must not be adduced to contradict or qualify the agreed fact without the leave of the Court. While it is clear that his Honour accepted the evidence contained in the statement of agreed facts, it does not follow that it was sufficient to support the declaration sought by the parties; on the contrary they support the opposite conclusion. In the statement the parties agreed that in the area of the Native Title Claim the first respondent has negotiated agreements in relation to heritage surveys and engaged consultants and Aboriginal people to conduct the surveys. It is an agreed fact that the first respondent entered into agreements with BHP Billiton Iron Ore for the conduct of heritage surveys and arranged heritage surveys for Fortescue Metals Group Ltd. It is further agreed that the first respondent did not enter into any of these agreements as agent for the appellants and that it did not have authority to represent them or to bind them to those agreements. 28 What does not appear in the statement as an agreed fact is that the first respondent purported to have authority to represent or to bind the appellants as individuals. Nor was there any other evidence to support such a proposition. The only support for this proposition offered by the appellants is the chain of argument outlined at [24] above. Justice Gilmour did not accept an essential premise of this argument; nor do we. There is a plausible meaning of the Kariyarra Peoples as a whole that is different from, and does not include, every single individual Kariyarra person. In this sense the group is a gestalt, greater than, or at least different from the sum of the individual Kariyarra persons who might claim membership of the group. 29 The arguments of the appellants have not convinced us that there is any basis for interfering with Gilmour J's exercise of his discretion in refusing to grant the declaration. It follows that the appeal should be dismissed. There should be no order as to costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Siopis and Collier.