Reeves, Barker and Bromberg JJ
In this matter the Court granted an appeal from orders of the primary judge requiring a native title representative body to facilitate a meeting of a native title claim group and whether the claim group can direct the applicant's choice of legal representative.
Background
NTSCORP, a native title representative body of New South Wales, had been representing the Gomeroi People in relation to a native title claim. A claim group meeting passed a resolution that the applicant must not attempt to terminate the services of NTSCORP without first obtaining the claim group's authority. The applicant later engaged a different solicitor, Mr Hegney, without obtaining the claim group's authority.
The principal solicitor of the NTSCORP sought orders to be reinstated as the solicitor on the record. At issue was whether there was an “expectation” that the applicant retain the original solicitor. The primary Judge dismissed NTSCORP's application and ordered it to convene a claim group meeting to consider the resolution previously passed. The applicant appealed from all of the orders on the basis that the Court lacked the power to make the orders.
Appeal Grounds
Four grounds of appeal were filed, but only 2 were pressed at the hearing:
1. The Court lacked the power under the Native Title Act 1993 (Cth) (NTA) to make the order; and
4. The Court’s orders of 13 May 2015, were premised on a legal error which was that the Gomeroi people claim group have power, by a majority vote, to direct the Gomeroi Applicant as to its choice of legal representative.
Reeves and Barker JJ delivered separate judgements. Each ruled that the appeal should be allowed. Bromberg J found that the appeal should be dismissed.
Reeves J
Reeves J agreed with the reasons for judgment of Barker J and for this reason it was not necessary to deal with ground 4 but but expressed his own reasons for giving judgment on ground 1.
His Honour said the central issue in the appeal is not whether the primary Judge had the power to make the orders she did, but rather the more fundamental question whether there existed any real dispute about the authorisation of the Gomeroi Applicant which attracted the Court’s jurisdiction under s 81 of the NTA to hear and determine native title applications.
Reeves J found the effect of the primary judge’s orders would be to faciliate the implementation of a policy decision of NTSCORP to to convene a meeting, the orders were not directed to resolving an existing dispute and there was no evidence of any other issue likely to impact on the conduct of the substantive proceeding. Therefore, the orders did not serve any purpose and there was nothing to support the primary Judge’s exercise of the Court’s jurisdiction under s 81 of the NTA.
Barker J
Barker J referred to ss 215B and 66B of the NTA which recognise the power of the claim group to limit the authority of the applicant to a claimant application and while the powers of an applicant under s 62A of the NTA include the power to instruct lawyers the claim group has the power to limit the authority of the Gomeroi Applicant, at [80].
Barker J found the Court had no jurisdiction to make the orders because there was no relevant controversy before the Court concerning the authority of the lawyers to act or the function of the claim group to deal with the applicant’s authority.
Ground 1 succeeded. The appeal should be allowed.
His Honour determined that the orders for the claim group to consider the meeting resolution were made on the correct understanding that the claim group has a wide authority, under s 66B, to replace the Gomeroi Applicant generally or because there had been an excess of authority.
Ground 4 failed.
Bromberg J
Bromberg J considered the central issue to be whether the orders made by the primary judge exceeded the limitations on the Court’s power under s 23 of the Federal Court Act 1976 (Cth) (FCA).
His Honour noted that the evidence showed that a discord existed between the Gomeroi Applicant’s conduct and the last-expressed wishes of the Gomeroi People about the litigation which could result in the applicant being replaced. The NTA confers various functions on NTSCORP as a representative bodies including “facilitation and assistance" and the NTSCORP had the power to convene a meeting under s 203BK of the NTA. The need for court orders was therefore questioned.
Bromberg J concluded that the orders were made in aid of the protective functions given by the NTA to a representative organisation and out of a concern to ensure that the interests of those of the Gomeroi People who were absent but represented in the proceeding before the primary judge were not prejudiced by the conduct of the litigation. Having regard to the Court's powers and in the context of the proceedings Bromberg J considered the orders appropriate and reasonable.
Grounds 1 failed.
His Honour determined that the orders only required NTSCORP to facilitate a claim group meeting, the NTA enabled the Gomeroi People to make any kind of resolution the appellant claimed was beyond their power and the appellant had misconstrued the power of the claim group to control the decision-making process of the Gomeroi Applicant because s 251B of the NTA only deals with the process of decision-making when a claim group decides to authorise an applicant.
For those reasons the appeal should be dismissed.