REASONS FOR JUDGMENT
1 On 29 September 2011, a Notice of Change of Lawyer in form 5 was filed in the Registry in this matter. On its face, that notice recorded:
Leslie Weribone & Ors on behalf of the Mandandanji People, the Applicant, has appointed Colin Stanley Hardie of Just Us Lawyers to represent the Applicant in the proceedings in the place of Queensland South Native Title Services.
2 That same day, an application was filed by Mr Hardie, purportedly on behalf of the applicant, in which, by way of interlocutory relief, an authorisation meeting of the claim group, as notified by Queensland South Native Title Services, to take place in Toowoomba on 8 October 2011, was sought to be "cancelled" by Court order. A further order by way of interlocutory relief was sought. That was that an authorisation meeting at Roma on 15 November 2011 be held to determine particular named issues. Finally, an application was made for an order that the "solicitor for the applicant" provide a report to the Court at least two days prior to the next directions hearing.
3 Whether reference to the solicitor for the applicant is a reference to Queensland South Native Title Services or, alternatively, to Mr Hardie is an issue which arises. As it transpires, determining that issue also determines whether it is necessary to decide whether to grant any of the interlocutory relief sought. The reason for that emerged today upon the return for hearing of the interlocutory application. There was an appearance on behalf of Queensland South Native Title Service. The preliminary issue raised by that appearance was whether an order ought to be made directing the removal, from the Court file, of the Notice of Change of Lawyer to which I have referred.
4 The State and some other respondents appeared. Notwithstanding the practical importance of the point in relation to native title practice and its general application to native title applications concerning land in this State, as well as elsewhere in Australia, the State chose to make no substantive submission in respect of it. Rather, its position was, in effect, to abide the order of the Court. The other respondents who appeared adopted the same position.
5 Given the point raised on behalf of Queensland South Native Title Services, it was necessary to decide whether there had in law been an appropriate authorisation by the applicant of a change of solicitor.
6 It was common ground as between Mr Hardie and Queensland South Native Title Service that the critical document, in terms of authority, was to be found in exhibit MM3 to the affidavit of Miranda Maria Mailman filed on 29 September 2011. That document is in these terms:
Authority and Directions
To the Principal Legal Officer, Queensland South Native Title Services
1. The signatories to this document are the registered Native Title Claimants to Mandandanji Native Title Determination Application (No QUD 366 of 2008) ("the Native Title Claims").
2. As at the date of this document, we terminate your instructions to act in the Native Title Claim for the Applicant.
3. We authorize and direct you to provide and release all files and documents (including expert reports) in relation to the Native Title claim and deliver same to:
Colin Hardie, Solicitor, Just Us Lawyers, 238 Kelvin Grove Road, Kelvin Grove, Queensland, 4059.
7 Thereunder there is provision for 10 signatures, that being provision for the signatures of Lorraine Tomlinson, Miranda Mailman, Silvia McCarthy, Violet Costa, Phyllis Hopkins, Leslie Weribone, Alex Combarngo, David Combarngo, Sarah Trindall and Leigh Himstedt. Of those named persons, signatures appear above the provision for their signature only by Lorraine Tomlinson, Miranda Mailman, Silvia McCarthy, Alex Combarngo, David Combarngo and Leigh Himstedt. It is also common ground that the persons for whom provision is made in the authority and directions are the persons who comprise the applicant for the purposes of the Native Title Act 1993 (Cth) (Native Title Act).
8 The short but important point which emerges from the authority is whether it is sufficient that the authority bears only the signatures of the majority of those persons who jointly comprise the applicant.
9 Another document to which importance was attached on the hearing today was the terms of the authorisation of the applicant by the Native Title Claim Group. That authorisation became Exhibit 1. Regard to that document discloses that whilst it authorises a list of persons to comprise the applicant it does not even purportedly authorise those persons to act by majority. Strictly therefore, it is unnecessary in this case to consider whether, had it purported to authorise the persons who comprise the applicant to act by majority, such an authorisation would have been contrary to the Native Title Act.
10 The question that does arise is the more narrow one, which is, given the terms of the Native Title Act and having regard to the authorisation of named persons to be the applicant, is it sufficient that the authority for change of solicitors is signed by only a majority of them? If the answer to that question is "Yes", then there is no doubt that the authority which has been so signed is sufficient to ground the Notice of Change of Lawyer which was filed. Further, it would then become necessary substantively to consider the interlocutory application, it being one which had been filed by a solicitor authorised so to act on behalf of the applicant.
11 The point is not one which is free from authority. A very similar situation arose before Gilmour J in Tigan v Western Australia (2010) 188 FCR 533 (Tigan). I was also informed by the parties that a similar situation had arisen in another native title case in the Queensland Registry in which Collier J has presently reserved judgment, namely Anderson & Ors on behalf of the Wulli Wulli People v State of Queensland & Others, QUD 6006/2000 (Wulli Wulli People case). There is a need though, evident from the nature of the interlocutory injunctive relief which is sought, for a judgment to be given in this case now rather than awaiting whatever might be decided in relation to the Wulli Wulli People case.
12 Understandably though, given the comprehensive nature of the submissions made on behalf of the applicant in the Wulli Wulli People case, Mr Hardie relied upon the written submissions which had been made in that case in relation to the same issue. I have considered those, along with the outline of submissions made on behalf of Queensland South Native Title Services in this particular matter.
13 The competing submissions in effect go to whether or not I should follow Gilmour J's judgment in Tigan. His Honour gives in Tigan at [10] and [11] a summary of the statutory framework. He there states:
10. A claimant application within the meaning of s 253 of the Act, by virtue of 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 Act in relation to the application. An application for a determination of native title is a representative proceeding.
11. Counsel for the respondents to the motion made two principal submissions. The first is that while the applicant, as defined pursuant to s 61(1) and especially s 62A, may deal with all matters arising under the Act in relation to the application for determination of native title made by Form 1 under s 61, so may the members of the claim group as a whole, by a decision made at a claim group meeting. The second is that in any event, while the applicant is, relevantly, pursuant to s 61(1) the persons, jointly, who are 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 particular native title claimed, there is no requirement that the persons who jointly are the Applicant must be unanimous in order for them to make a valid decision.
14 Each of the submissions summarised by Gilmour J at [11] in Tigan found voice today. So too did a further refinement thereof, which has, as its foundation, language in s 251B of the Native Title Act. Section 251B is the section which sets out the alternative ways in which all the persons in a native title claim group relevantly may "authorise" a person or persons to make a native title determination application and to deal with matters arising in relation to it.
15 More particularly, the submission that was made was that in the language of paragraphs (a) or (b) of s 251B there is found a means by which the authorisation of a person or persons to make the application may be fettered in some way or at least the subject of a form of direction. In particular, as I understood the submission, the ability so to do was said to be found in paragraph (a) in the language "in accordance with that process". The like submission was made in relation to the language of paragraph 251B(b). That point may be dealt with shortly. As I have already stated, this authorisation does not even purportedly authorise the applicant to act by majority. Further, the reference to "process" is nothing more than the process of decision-making by which authorisation occurs. It does not, in my opinion, admit of the authorisation process being grafted on to the language of s 62A. In other words, insofar as the submission carried with it anything of the notion that the native title claim group may in some way direct how the applicant is to carry its business of dealing with "all matters arising under this Act in relation to the application", I reject that submission.
16 Each of the cases to which Gilmour J refers at [18] and [20] in Tigan were rehearsed in the course of submissions on behalf of at least the six persons who had signed the authorisation which prompted Mr Hardie's appearance and also on behalf of Queensland South native Title Services. Differing consequences were sought to be derived from them. Thus, reference was also made to Mansfield J's judgment in Lennon v State of South Australia [2010] FCA 743 (Lennon) and to my own judgment in Dodd and Others v Queensland (2011) 195 FCR 65 (Dodd). Reliance was also placed by Mr Hardie on a judgment of Reeves J in QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412 (Bygrave).
17 Bygrave concerned sections of the Act dealing with indigenous land use agreements. It arose in a quite different factual context to the present. Bygrave is, in my view, of no assistance in the present context.
18 As to the line of cases which I would regard as having commenced with Kiefel J's judgment in Butchulla People v Queensland (2006) 154 FCR 233 (Butchulla) and having culminated most recently in my judgment in Dodd, they concern the different issue as to whether, upon a member of a claim group dying or signifying a disposition not to continue as a member of the applicant, it is necessary for there to be a fresh authorisation. As is evident from my judgment in Dodd, there is a difference of views in the Court on that subject. For reasons which I set out in that case, I prefer the views of Mansfield J in Lennon on that subject.
19 Attention was particularly focused upon a part of Kiefel J's reasons for judgment in Butchulla to which I refer at [22] of my reasons for judgment in Dodd and, more extensively, at [11] of those reasons for judgment. Gilmour J also refers to her Honour's reasons for judgment in Butchulla in Tigan. At [18] he quotes from [38] of Kiefel J's judgment in Butchulla which is as follows:
The evident purposes of section 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 where 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.
His Honour added emphasis to "in concert" and "acting jointly". At [19] of his reasons for judgment in Tigan his Honour adds:
The expression in s 61(2)(c) that the persons are "jointly" the applicant is important. "Jointly" relevantly means (Shorter Oxford English Dictionary):
"in conjunction, in combination unitedly, not severally or separately"
Insofar as it might be thought by some that the Macquarie Dictionary offers a better rendering of Australian idiom in relation to the English language, the position is not relevantly different. "Jointly" is there said to mean "together, in common".
20 Whilst for the purposes of continuance of an application in circumstances where a member of the applicant dies or does not wish to continue as a member the authorisation which is given is an authorisation to each individual, it does not follow from that that they may act by majority. In Tigan, Gilmour J offers what, in my respectful opinion, is a compelling analysis of the legislation to reach a conclusion firstly that it is not competent for a native title claim group itself to resolve that there be a change of solicitors and, secondly, that it is not competent for the applicant to act by majority in seeking to change solicitors.
21 I am fortified in regarding as compelling his Honour's view of the impact of the word "jointly" in s 61(2)(c) to be that majority decision-making is not permitted by reference to other similar uses of the word "jointly" to be found in earlier cases and to the way in which those similar uses have been construed. Thus, in Koryar, Philip and Ors v Donald N & Anor (No 2) [1997] FCA 1468, it fell to Beaumont J to consider the word "jointly" in the context of a term (cl 3) in a joint venture agreement. That term provided: "3. Perry/Allen shall have the right to retain ownership of the fishing vessels and equipment and are at liberty to withdraw their vessels and equipment if not jointly satisfied". His Honour expressed the following conclusion as to the meaning of that clause:
In my opinion the purpose, language, structure and context of cl 3 all clearly indicate that the joint satisfaction in question is that of the defendants, rather than the satisfaction of the joint venturers as a whole.
In my view if the word "jointly" had not appeared in cl 3 it would have been clear that the state of satisfaction in question was intended to be that of the defendants. The structure of the sentence makes that clear. What work then was the word "jointly" intended to perform? In my view, it was intended to make plain that both of the defendants had to be dissatisfied before their liberty to withdraw could be exercised. In other words, it was intended to remove any possible room for argument that the liberty could be exercised severally, that is, by either of them (see, as to the meaning of "joint", Stroud's Judicial Dictionary, 5th ed at 1367). Put differently, the use of "jointly" was intended to make it clear that this liberty should not be construed distributively. The consequence is that if both defendants were not "satisfied", they could not withdraw.
His Honour emphasised the word "both".
22 Care has of course to be taken in the adopting views expressed in respect of the use of a word in the context of another document. Nonetheless, when one has regard to the language of s 61(2)(c) and the deliberate dichotomy which the Act draws between the applicant and the native title claim group in relation to dealing with matters concerning a claim, that same meaning is readily evident. The reference which Kiefel J made in Butchulla to acting "in concert" is consistent with that view of the word "jointly". It is true that it appears in a definition of who comprises the applicant but that definition has a role to play in terms of indicating the way in which the persons who comprise the applicant must act. They must act "jointly" and "jointly" does not mean by majority. As Gilmour J observes in Tigan in the event that dissention emerges in an applicant the Act provides a mechanisms by which any impasse may be resolved. Those mechanisms are set out in s 66B.
23 One way in which s 66B permits resolution of an impasse is by replacement of an applicant at a meeting of a native title claim group.
24 It follows then from the conclusion which I have reached that the order which ought to be made today is the same as that which Gilmour J made in Tigan. I therefore direct the Registrar to remove from the court file the Notice of Change of Lawyers filed by Mr Hardie on 29 September 2011, and return it to Mr Hardie at the address specified for Just Us Law. A necessary consequence of that order is that there was no authority for the making of the interlocutory application filed on 29 September 2011. I therefore dismiss that application. A further consequence is that the solicitor on the record for the applicant remains Queensland South Native Title Services.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.