The Court ordered that:
subject to order 3, leave be granted to amend the application for leave to appeal and the draft notice of appeal in accordance with the forms accompanying the letter of Jarratt Webb & Barrett dated 15 June 2018 to the Registry.
The interlocutory application dated 13 February 2018 was dismissed, without prejudice to the Current Applicant, if so advised, raising the issues of the 14 applicants’ standing and the futility of the application for leave before the Full Court hearing the application for leave to appeal and, if leave be granted, the appeal.
Within 14 days from the date of these orders, the Current Applicant file and serve written submissions on the issue of costs, limited to 4 pages. Within a further 14 days, the 14 applicants file and serve written submissions in reply, limited to 4 pages. The submissions on each side should state the parties’ views on whether the costs question may be determined on the papers.
[1] These reasons concerned an interlocutory application for summary dismissal of an application for leave to appeal from the judgment of Rangiah J in Gomeroi People v Attorney General of New South Wales [2017] FCA 1464.
[2] The principal proceeding was an application, made in 2011, for a determination of native title brought by 19 persons, referred to by Rangiah J as the Current Applicant, on behalf of the Gomeroi People. [3] On 7 December 2017, Rangiah J determined an interlocutory application pursuant to s 66B of the Native Title Act 1993 (Cth). His Honour made an order that 19 persons, referred to in that judgment as the Replacement Applicant, replace the Current Applicant.
[5] The parties before the Court in this matter referred to the party Rangiah J called the Current Applicant as the Former Applicant. Robertson J adopted that practice. In these reasons for decision, when his Honour refers to the Former Applicant, he refers to the applicant for leave to appeal from the orders of Rangiah J. When His Honour refers to the Current Applicant, he refers to the moving party on the interlocutory application for summary dismissal.
[6] The active parties before the Court were the Current Applicant and, originally, the Former Applicant. As will later appear, the status in the proceedings of the individuals making up the Former Applicant was the subject of an application to amend. [7] No other parties took an active role in the interlocutory application.
[8] On 22 December 2017, the Former Applicant purportedly filed an application, in its unamended form, for leave to appeal from the 7 December 2017 judgment of Rangiah J. [9] In response, the present interlocutory application was brought, dated 13 February 2018, by the Current Applicant, in the following terms:
Pursuant to rule r [sic] 26.01 of the Federal Court Rules 2011 (Cth), the Application for Leave to Appeal from the judgment of the Honourable Justice Rangiah in Gomeroi People v The Attorney General of New South Wales [2017] FCA 1464 be dismissed.
The applicant to the Application for Leave to Appeal pay the costs of this application.
[11] The Former Applicant before Rangiah J comprised Maureen Suiter, Lyall Munro Jnr, Alf Boney, Clifford Toomey, Norman McGrady, Madeline McGrady, Leslie ‘Jacko’ Woodridge, Jason Wilson, Michael Anderson, Alfred Priestly, Ray Tighe, Greg Griffiths, Burrul Galigabali, Susan Smith, Richard Green, Raymond Welsh Snr, Elaine Binge, Bob Weatherall, Anthony Munro. There is some inconsistency in the spelling of the names of some of these people in various places in the papers.
Procedural history
[12] In the course of case management, particularly at the case management hearing on 7 March 2018, the common position was that the application for leave to appeal and the appeal be heard together, necessarily by a Full Court. [13] The position of the Current Applicant was that the interlocutory application for summary dismissal of the application for leave to appeal was essentially going to deal with the retainer between the Former Applicant and its solicitors.
[13] It was said that the question was in substance about the retainer and a question that went to the ability of an applicant to provide instructions when it was apparent that not all of the individuals that made up the applicant agreed. It was also intimated that there could be an appeal from the Court’s decision on the interlocutory application for summary dismissal. A substantial reason why the interlocutory application for summary dismissal could not be referred to a Full Court for determination, together with the application for leave to appeal and, if granted, the appeal itself, was a question about liability for costs, turning on the retainer question.
The parties were unable to agree as to an order protecting the solicitors for the Former Applicant in relation to costs such that the interlocutory application for summary dismissal could also be referred to the same Full Court. The Parties agreed on the following facts: [16] The Former Applicant was the applicant/appellant in these proceedings. The Court noted that as originally filed, the application for leave to appeal stated:
Part A - persons jointly comprising the Applicant
Alfred Boney, Maureen Sulter, Clifford Toomey, Lyall Munro Junior, Norman McGrady (dec’d), Madeline McGrady, Leslie Woodbridge, Jason Wilson, Michael Anderson, Alfred Priestly, Ray Tighe, Greg Griffiths, Burrul Galigabali (dec’d), Susan Smith, Richard Green, Raymond Welsh Senior, Elaine Binge, Bob Weatherall and Anthony Munro
[17] The Former Applicant was duly authorised under the Native Title Act at an authorisation meeting on 10 and 11 May 2013. The resolutions to authorise the Former Applicant at the authorisation meeting on 10 and 11 May 2013 were annexed to the agreed statement of facts. [18] As already indicated, before this action commenced, two members of the Former Applicant died: Burrul Galigabali died on 8 May 2014 and Norman McGrady died on 6 July 2016. [19] After this action commenced, another two members of the Former Applicant died: Raymond Welsh Snr died on 17 January 2018 and Ray Tighe died on 13 March 2018. [20] Mr Jason Wilson is a member of both the Former Applicant and also, pursuant to orders made by Rangiah J on 7 December 2017, a member of the Current Applicant in that action.
No solicitor acting for the Former Applicant (nor their agents) ever contacted Mr Wilson regarding his instructions in relation to the application under s 66B before Rangiah J (s 66B application). [21] Mr Wilson never gave instructions to any solicitor acting for the Former Applicant in relation to the s 66B application.
[22] No solicitor acting for the Former Applicant (nor their agents) ever contacted Mr Wilson in relation to the commencement or continuation of the present proceedings. [23] Mr Wilson has never provided instructions to any solicitor acting for the Former Applicant in relation to the commencement or continuation of the proceedings.
[24] If Mr Wilson had been contacted by solicitors acting for the Former Applicant, he would in no circumstances have given instructions:
to contest the s 66B application; and
to commence or continue these proceedings.
[25] Notwithstanding the facts agreed above, no party to the proceedings before Rangiah J challenged the validity or competency or propriety of the instructions held by the solicitors for the Former Applicant to defend the s 66B application. [26] The Former Applicant’s solicitors hold instructions from all members of the Former Applicant to commence and continue this action, save for instructions from Mr Galigabili; Mr N McGrady; Mr Welsh Snr; and Mr Wilson. The list excludes Mr Ray Tighe, but the reason for that is not apparent.
[27] The Court found that at the authorisation meeting on 10 and 11 May 2013, which authorised the Former Applicant, there was no express resolution that the persons who were authorised to be the applicant were directed or authorised to make decisions by a majority vote. This is in contrast to the decision-making contemplated by Resolution 2 in relation to the native title claim group itself.
[28] The Court also found that at the authorisation meeting on 10 and 11 May 2013, resolution 7 provided that the Gomeroi People native title claim group wished to have 19 individuals as the applicant, each one drawn from one of the 19 regions which comprise Gomeroi traditional country. Resolutions 8 and 9 confirm that there was to be regional representation.
[29] Further, the Court found that at least since the authorisation meeting on 19 and 20 July 2016, which Rangiah J held removed the Former Applicant and authorised the Current Applicant, there has been disagreement and discord within the native title claim group in terms of the way the Former Applicant was acting.
Issues in the parties’ submissions
[35] The Current Applicant submitted that the application for leave to appeal was an abuse of process and it had no reasonable prospects of success because:
the applicant for leave (the Former Applicant) had no authority to file the application for leave to appeal when it did, in circumstances where two of the 19 individuals who comprised the applicant were then deceased (two more having subsequently died) and another two of those 19 individuals did not provide instructions to the solicitor to file the application for leave to appeal;
the reinstatement as applicant in proceedings NSD2308/2011 of the 19 individuals who were formerly authorised as the applicant in NSD2308/2011 would be futile, as four of those persons were deceased and one did not provide instructions to appeal and opposed the reinstatement: the applicant as authorised by the claim group no longer exists;
unrelated to anything under the Native Title Act, the solicitor acting for the Former Applicant was acting without a retainer and without instructions.
Each of these was said to be a separate and distinct basis.
[36] The Current Applicant submitted that it was clear that as at the date when the application for leave to appeal was filed, two of the 19 persons who comprised the Former Applicant were deceased and one of those persons (Mr Jason Wilson) opposed that course. The Former Applicant’s solicitor had filed an affidavit in which he stated that his instructions to pursue the appeal were obtained from only 15 of the 19 persons who comprised the Former Applicant (two were then deceased) and those instructions were received before the primary judge delivered his judgment. Specific authority was required to institute proceedings. An authority to institute proceedings extended to final judgment and execution but it did not authorise institution of an appeal without further express instructions.
[37] The Current Applicant submitted that the authority that was conferred upon those 19 individuals by the native title claim group was conferred on them jointly not severally: ss 61(2)(c), 62A and 251B of the Native Title Act. The 19 individuals could not therefore have been authorised to commence appeal proceedings in circumstances where at least one of their number (Mr Jason Wilson) did not agree with that decision and another (Ray Welsh Snr) did not attend the meeting at which that decision was made. Secondly, four of the 19 individuals were deceased and there was disagreement within the claim group. In those circumstances, the 19 individuals were not authorised to bring the application for leave to appeal without first making an application under s 66B.
[38] The Current Applicant submitted there was undisputed authority in this Court that the persons who comprise an applicant must act collectively in the sense that they must make decisions unanimously. The decision to bring this application for leave to appeal was not made unanimously by those living members of the applicant.
[39] There was authority, the Current Applicant submitted, to suggest that in circumstances where some persons who comprised the applicant have passed away, in certain circumstances the remaining persons who comprised the applicant may continue to act. But that was not the case if there was disagreement within the group as to how the claim should proceed, or if the persons who were appointed as applicant were appointed to represent particular interests within the claim group.
[40] The Former Applicant, the submission went, could not proceed in circumstances where two of the persons who comprised the Former Applicant did not give instructions for this proceeding to continue or to be commenced. One of those, Mr Welsh Senior, had subsequently passed away, but one of them, Mr Jason Wilson, was still alive. He was ready, willing and able to continue acting. In those circumstances the application for leave to appeal could not have been properly brought, because there was at least one of the living members of the applicant, ready, willing and able to continue acting as an applicant, who not only did not make that decision, but had indicated that, if he had been asked, he would have not made that decision.
[41] Similarly, where, as here, there was disagreement within the group and the individual members of the applicant had been appointed as representatives of particular subgroups, this Court has said that there must be reauthorisation and there must be a s 66B meeting. [42] The Current Applicant submitted there was no authority to support the proposition that persons comprising the applicant may decide amongst themselves that they were going to make decisions by majority: all of the authorities were directly contrary to that proposition.
[43] The Former Applicant submitted that resolution of the present controversy relating to whether an applicant may only act by unanimous decision of its members was a matter of construction of the Native Title Act as a whole. That Act did not state expressly how an applicant is to make decisions. Nor did that Act identify whether ‘the applicant’ had a separate legal personality from those persons which jointly constituted the applicant. Sections 61(1)(1), 61(2)(c), 66B(1) and 84D(1)(a) did no more than preclude a member of an applicant from acting severally, and implied that any liability an applicant incurred was likewise joint (and not several). The use of the word ‘jointly’ in ss 61(2)(c) and 66B did not mean that those constituting the applicant must act jointly, but that jointly they were the applicant. There was nothing which implied that a multi-member body must make all decisions unanimously. If anything, the words ‘are jointly the applicant’ suggested that each member should have an equal say (i.e. an equal vote) not that any one member might veto any decision on any basis. An individual right of veto is a several right, not a joint right.
Robertson J stated at [44]: It should not be overlooked, the Former Applicant’s submission went, that, under the Native Title Act, the applicant became the body legally responsible for a vast array of decisions. ‘It was notorious, at least now, that a claim group rarely spoke with one voice and often contained numerous competing interests. Unless one faction or subgroup ‘has the numbers’, applicants were often authorised on a ‘least worst’ basis, and individual members were often looked to by parts of the claim group to represent sectional interests. It would produce, in practice, intolerable delay and gridlock if every member of a multi-person applicant held a right of veto over every decision. In this respect ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) should not be forgotten. A requirement of unanimity was not productive of efficiency. Minority interests would hold progress hostage.
[45] The Former Applicant submitted that the concept of the identification of the applicant (or the registered native title claimant) should not be conflated with the manner of the decision-making of the applicant. The reasoning of Mortimer J in McGlade v Native Title Registrar [2017] FCAFC 10 at [379] should not be followed. Because the applicant was construed by her Honour as a group of individuals acting jointly, her Honour considered (at [379]) that an action could not be taken merely by some of the individuals. However, that overlooked the possibility, as occurred here, that all members of the applicant may agree to make decisions by majority, with any subsequent majority vote being binding on all members of the applicant who must (all) then take the action decided upon.
[46] The Former Applicant submitted the preferable view was that, if the persons comprising the applicant so decided, decisions could be made by a majority of those persons comprising the applicant, except where the applicant’s authorisation under s 251B is subject to an express condition, imposed by the claim group, that it must make decisions unanimously. There was no such condition imposed here. To require a particular group of people to make decisions in the best interests of a larger group unanimously defied human nature and was spectacularly inefficient. There were a number of authorities to the effect that where one or more of those persons constituting the applicant in a native title claim died or was no longer willing to act in such capacity, the remaining persons constituting the applicant may continue to deal with all matters arising under the Native Title Act in relation to the applicant, that is, the remaining persons so authorised will continue to be ‘the applicant’ for that purpose.
[47] The Former Applicant submitted that if it was accepted that an applicant had no distinct legal personality, then it must follow that each of the 15 members of the Former Applicant:
were parties in their individual capacity in the primary claim; and
have given instructions to appeal in an individual capacity.
[48] Once an order under s 66B had been regularly entered to replace an applicant, the Former Applicant submitted, the members of the Former Applicant were no longer obliged to act jointly. No longer were they, jointly, the applicant. It followed that the application for leave to appeal was regularly brought (or could be amended so as to regularise any deficiency), save in respect of those three persons who did not give instructions on account of illness or death, and in respect of Mr Wilson. There may also be an issue as to whether a person dying during the pendency of an appeal is, by their estate, entitled to maintain the appeal. The 14 members did not oppose the four deceased persons and Mr Wilson being removed as applicants; however, that would leave their application for leave to appeal (as applicants 1-14 inclusive) on foot.
[49] The Former Applicant submitted that relevant decisions of the Court appeared to proceed on the basis that the applicant did not have a legal personality which was distinct from its members. However, those decisions should not be regarded as authoritative. The Former Applicant submitted that the Native Title Act did create a distinct legal personality at least because:
Only ‘the applicant’ may commence and prosecute a claim (including favourable or adverse costs orders);
The applicant must act jointly and has a single address for service;
Although the membership of the applicant may change, ‘the applicant’ has an existence which transcends the tenure of any of its members; and
The applicant may, by s 62A, deal with all matters arising in relation to the claim; not only did that embrace prosecution of the litigation and all its exigencies, but also the applicant may make a registration application under s 69(1) and s 190F(1); carry out the right to negotiate under subdivision P; enter into Indigenous Land Use Agreements and future act agreements; and possibly, represent the claim group’s interests in other litigation.
[51] The Current Applicant submitted that the leave application was a futility because the collective ‘applicant’ that was authorised to act for the native title claim group at the May 2013 authorisation meeting no longer existed. Four of them, each appointed to represent a particular region, were deceased and the circumstances were such that there was disagreement within the group. There was nothing the remaining members of the Former Applicant could do. They needed fresh authorisation.
[52] The Former Applicant submitted that there were three reasons why success on the appeal would not be a futility. First, if the Former Applicant’s contention concerning majority decision-making was accepted, the 14 remaining members could outvote Mr Wilson, and then require him to act in concert with them. If he refused to act in concert, that would be grounds for a s 66B application to remove him from the ranks of the applicant (without the need for a claim group meeting).
Second, if the Former Applicant’s contention concerning majority decision-making were rejected, the 14 remaining members would simply have to work with Mr Wilson to find a unanimous basis to progress the claim (which may or may not have, as its first step, an application to remove the deceased persons as members of the Former Applicant). Third, if the second scenario proved impossible in practice, a further claim group meeting could be held. The Former Applicant submitted that ‘all of the 14 appellants’ had a legitimate interest in restoring the ‘status quo’ in any of the above three scenarios. In each scenario they would have at least a real chance to participate in carrying out all the tasks ‘with which the Native Title Act charges the applicant’.
[53] In oral submissions the Former Applicant said that when Rangiah J handed down judgment on 7 December 2017, those constituting the Former Applicant ceased to be members of the applicant so that they could no longer jointly do anything. So those 14 people since that time had had no role or status within the Gomeroi native title claim group, beyond being members of the Gomeroi native title claim group. In drawing the application for leave and the notice of appeal, the Former Applicant had not properly appreciated the corporate character of the Former Applicant and the effect of Rangiah J’s decision, which was that the Former Applicant thereafter had no corporate character. In the result it was necessary to amend the application for leave to appeal to show that the persons there named sought to appeal in their personal capacity.
[54] If that amendment were successful, it was submitted, the Court need go no further to consider the controversial issue of unanimity or majority of those constituting the applicant being required in the decision-making process.
[55] The futility argument, it was submitted, must be tested against the background of both the application for leave and the appeal proper being successful, because in those circumstances Rangiah J’s order of 7 December 2017 would be set aside and in lieu thereof the s 66B application that was before his Honour would be dismissed. Those people would then resume being the applicant in these proceedings. The issues arising from the four deaths and from the position of Mr Wilson could then be overcome by s 66B or by a claim group authorisation meeting.
The application to amend: [56] In the course of the hearing of the interlocutory application, I directed that the Former Applicant file and serve a proposed amended application for leave to appeal, if so advised. This was to bring to a head the issues in the submissions Robertson J summarised at [47]-[48] and [53] above. Robertson J also made directions for the exchange of written submissions in relation to such application.
[57] The substance of the application to amend is best illustrated by marking up the terms of the part of the application for leave to appeal his Honour set out at [15] above, as follows:
Part A persons jointly comprising the Applicant
Alfred Boney, Maureen Sulter, Clifford Toomey, Lyall Munro Junior, Norman McGrady (dec'd), Madeline McGrady, Leslie Woodbridge, Jason Wilson, Michael Anderson, Alfred Priestly, Ray Tighe, Greg Griffiths, Burrul Galigabali (dec'd), Susan Smith, Richard Green, Raymond Welsh Senior, Elaine Binge, Bob Weatherall and Anthony Munro
The other proposed amendments were consequential. The substance of this change, and of the proposed change to the draft notice of appeal, was that each of the named applicants no longer asserted a joint right.
[58] The application for leave to amend was opposed. The grounds of opposition were that the proposed amendments would cause substantial delay and cost and the appeal, if successful, would be futile and at best would require a further authorisation meeting of the Gomeroi People claim group. Further, no explanation had been given for the delay, it now being six months since the application for leave to appeal was lodged. It was also submitted that the 14 individuals were not parties to the proceedings at first instance and could not apply for leave to appeal unless they were made parties to the proceedings.
[59] In support of the application for leave to amend, it was submitted that applying the interests of justice test to the grant of leave to make the amendments meant that the amendments should be allowed. There would be no delay because the application for leave and any appeal had yet to be heard and the interlocutory application had now been heard, submissions now having concluded. There was no prejudice to any party because the application for leave to appeal had yet to be heard or prepared for hearing and no new grounds for leave or appeal had been added. No new arguments would arise. The amendments were no more than a correction to the names of the parties to the appeal and a correction of the misapprehension about the nature or capacity in which the ‘appellants’ brought the application to leave. There was no prejudice to any other litigants. The reason for the proposed amendment was explained candidly by senior counsel that, in settling the application for leave, there was a misapprehension that the appellants had a corporate or quasi-corporate character based upon their former role as, jointly, the applicant. That was a misapprehension on the part of legal advisers which ought not to penalise a client. As a matter of public policy, it was submitted, the Court should not proceed upon an erroneous basis where that error could be corrected without delay or prejudice.
[60] Subject to an order for costs thrown away by reason of the amendments, which his Honour reserved: Robertson J allowed the application to amend on the basis that the amendments tend to ensure that the real questions in the proceedings are properly agitated. Robertson J found that there had been sufficient explanation of the delay in applying to make the amendment which was foreshadowed in the written submissions. The 14 persons wish to apply for leave to contest the correctness of the interlocutory judgment of Rangiah J. The amendments will enable the real questions and controversy between the parties to be decided. Robertson J was not persuaded that the proposed amendments were futile or that the amendments would cause substantial prejudice or injustice to the Current Applicant in a way that cannot be compensated by costs. [61] The next question was whether what remains of the grounds of the Current Applicant’s interlocutory application for summary dismissal of the application for leave to appeal may be determined on that application and by the Full Court.
Consideration
[62] The amendments which Robertson J allowed resolved the issue of the solicitors’ retainer, that is, issue (c) listed in [35] above. [63] As to the other issues listed in [35] above, issue (a) was that the applicant for leave (the Former Applicant) had no authority to file the application for leave to appeal when it did, in circumstances where two of the 19 individuals who comprised the applicant were then deceased (two more having subsequently died) and another two of those 19 individuals did not provide instructions to the solicitor to file the application for leave to appeal. This issue of authority fell away in light of the amendment.
[64] Then the question of the standing of the 14 applicants arose, who no longer purported to act jointly as an applicant. This issue could be determined by the Full Court which hears the application for leave to appeal and, if leave be granted, the appeal itself (the substantive appellate hearing). It is established by authority that central to the question of standing is the relevant legislation, here the Native Title Act: see Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 and, in a judicial review context, Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50 at [76] per Gageler J, dissenting in the result. Further, the Court has a discretion when to determine the question of standing: Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53 at 532-533 per Gibbs J. In light of those considerations, Robertson J concluded that this issue should be left to the substantive appellate hearing.
[65] Similarly, the question of the futility of the application for leave, issue (b) listed in [35] above, could be determined by the Full Court which hears that application. That issue was whether the reinstatement as applicant in proceedings NSD2308/2011, the proceedings heard by Rangiah J, of the 19 individuals who were formerly authorised as the applicant in NSD2308/2011 would be futile, as four of those persons were deceased and one did not provide instructions to appeal and opposed the reinstatement: the applicant as authorised by the claim group no longer exists. Robertson J considered that this issue is also one that could and should be determined in the substantive appellate hearing.
[66] Where, as here, it is common ground that the earlier decisions of this Court do not speak with a single voice, in Robertson J’s opinion it was not useful or appropriate for a single judge on an interlocutory application to add to those opinions and, if the application were successful, to strike out an application for leave to appeal on the same or a similar substantive issue. ‘To take that course would be to add to the fragmentation of the proceedings, whereas the course I prefer would enable the substantive issues to be decided in the substantive appellate hearing by a single Full Court and at the same time.’
[67] His Honour dismissed the interlocutory application but without prejudice to the Current Applicant, if so advised, raising the issues of the 14 applicants’ standing and the futility of the application for leave before the Full Court.
[68] Robertson J said he would hear the parties on costs. His Honour directed that within 14 days from the date of these orders, the Current Applicant file and serve written submissions on that issue, limited to 4 pages. His Honour further directed that within a further 14 days, the 14 applicants file and serve written submissions in reply, limited to 4 pages. ‘The submissions on each side should state the parties’ views on whether the costs question may be determined on the papers.’