Rares, McKerracher and Robertson JJ
The Court ordered that the application for leave to appeal be dismissed.
The case concerns an application for leave to appeal from the decision that the second respondent (replacement applicant) replace the then current application (former applicant) as the applicant authorised by a process of decision-making, in relation to the native title claim of the Gomeroi people’s native title claim group (Gomeroi People v Attorney General of New South Wales [2017] FCA 1464). The former applicant submitted that the primary judged erred in his decision regarding three issues:
improper purpose;
notice and;
discretion.
Improper Purpose
The former applicant contended that NTSCORP had acted for an improper purpose in convening an authorisation meeting in July 2016, which was to ‘retain its former role and not hand over its file’ (at [6]). The primary judge had found that whilst this formed part of its purpose, it was not a ‘substantial purpose’ in its decision to call the meeting, and there was no evidence to suggest the NTSCORP’s dominant purpose was ‘glaringly improbable or contrary to compelling inferences’ required for a finding of error in fact by an appellate court (Robinson Helicopter Company Inc v McDermott [2016 HCA, 22; (2016) 331 ALR 55). Thus this ground failed.
Notice
The former applicant contended that the notice of the authorisation meeting was addressed to members of the claim group ‘sympathetic to the cause of the NTSCORP and those who wanted to have the former applicant replaced’ (at [9]). The applicant further contended that the primary judge had erred in failing to conclude that the notice was misleading or inadequate in five respects:
its failure to describe the interest of NTSCORP in the outcome of the authorisation meeting;
its failure to identify NTSCORP’s predominant motivation, being the improper purpose in calling the meeting discussed above;
its assertion that registration for the July 2016 meeting would only be permitted between 8 am and 12 noon on 19 July 2016, when in fact registration was allowed throughout the two days, including of 43 registrants on the second day;
its failure to state that the former applicant could be replaced for any or no reason; and
its failure to state that a replacement applicant might be chosen on any basis, including on a basis contrary to that determined in earlier authorisation meetings.
Their Honours found that the primary judge had not erred on any of these grounds, and that after considering all the evidence at trial, the findings his Honour had made ‘were open to him’ (at [15]). Their Honours held that with regard to Robinson Helicopter, there was no sufficient reason to doubt the correctness of the primary judge’s conclusions.
Discretion
The former applicant submitted that the primary judge erred in exercising his discretion under s 66B(2) to order the replacement of the applicant. To prove this, the former applicant had to demonstrate per the principles in House v the King (1936) 55 CLR 499 that it ‘unreasonable or plainly unjust’ to have reached the impugned decision. Their Honours held that this was not satisfied by the former applicant. The primary judge concluded that the procedural defects in the process of the meeting, as submitted by the former applicant, would have made no material difference to its outcome (at [18]), and thus their Honours held that the discretion was open to the primary judge.