McKerracher J ordered that: (1) the parties file a signed minute of consent to reflect the orders giving effect to the written reasons (2) that that the matter remain listed for case management on 15 April 2019 and that (3) costs be in the cause.
[1] In this matter the third cross claimant being the State of Western Australia challenged paragraphs of the defence to the third cross claim filed by the applicant Buurabalayji Thalanyji Aboriginal Corporation (BTAC) who is also the second, third and fourth cross respondent in the principal proceedings. By an interlocutory application filed on 28 February 2019 the State the State asked that certain paragraphs of BTAC’s defence in the third cross-claim be struck out and/or further particulars be provided. [2] The State has pleaded that the terms of the agreement operate to bar BTAC’s claims and BTAC has pleaded that in light of the surrounding facts that is not so. [3] His Honour concluded that the state of the pleadings required clarification.
The State’s third cross claim
[5] By the statement of third cross-claim, the State pleaded that Chevron Australia Pty Ltd (ABN 29 086 197 757) is the operator and, as part of a joint venture with other participants, is an owner of an LNG plant and processing facility near Onslow in Western Australia (the Wheatstone Project).It pleaded that BTAC holds native title on trust for the Thalanyji People as determined in a native title determination and is the applicant in the principal proceedings by which it seeks damages or compensation from the State in respect of loss or damage allegedly caused by the excavation of material from sites within the area over which the BTAC holds native title.It pleaded that the first respondent (Onslow Salt Pty Ltd ACN 050 159 558), who is also the first and fourth cross-claimant in the principal proceedings, holds the relevant Mining Lease (ML273SA).The loss or damage claimed by BTAC in the principal proceedings is said to arise from excavation of material from the Mining Lease area.
Paragraph 8 of the pleadings
The State in the principal pleadings at [8] states that BTAC and the Native Title Parties agreed that the Native Title Agreement could be pleaded by the State as an absolute bar against all liabilities and entitlement to compensation. The State provided that it would at trial refer to the Native Title Agreement ‘for its full terms and conditions’.
BTAC’s defence
Relevant to this dispute are paragraphs [8] and [14] of BTAC’s defence. At [8] BTAC denies that the proper construction of provisions and definitions of the Native Title Agreement can be ascertained without reference to the remainder of the provisions of the agreement, the background facts which form part of the factual matrix that enlivens the issue of contractual construction for determination and the facts that are said to create, alter or affect the rights of a person.
At [14] BTAC pleads in relation to the fill material from named sites was extracted or removed by Chevron as a subcontractor of Onslow Salt. BTAC pleads that those mining activities were required to be, but were not authorised by a mining lease granted under the Mining Act 1978 (WA) and were thereby carried out in contravention of s 115(1) of the Mining Act 1978 (WA). BTAC argued that ‘in circumstances where the State is asserting that certain conduct is the subject of promises given in the Native Title Agreement, the legality of that conduct is highly relevant to a court considering that claim’ [26]. BTAC further contends that the pleading satisfies s16.08 of the Federal Court Rules 2011 (Cth) by pleading a matter - illegality ‑ which might take another party by surprise.
Consideration
His Honour found that the State had not specified which particular clauses of the Native Title Agreement it relied upon for its assertions in paragraph [8] of the third cross claim. [20] His Honour further found that the State should specify by pleading particulars of which parts of the Native Title Agreement it relied upon in paragraph [8] of its pleading. Once the State did this it would be incumbent upon BTAC to clarify its pleading which is lacking in material facts.
The State also submitted that paragraph [14(d)] of the defence should be struck out. [24] The State contended that the third cross-claim is confined to the State’s rights under the Native Title Agreement not to be sued for damages in respect of the removal or fill material from the Mining Lease area. The State asserted ‘it is not relevant to that claim…whether or not the State, but for those rights, would be liable under any head of claim. It is also said not to be relevant to the third cross-claim, in particular, whether or not the removal of fill material by or on behalf of Onslow Salt breached the Mining Act 1978 (WA) since any such breach would not raise any cause of action or defence available to BTAC’ [24]. Neither Chevron nor Onslow Salt made submissions with respect to paragraph [14(d)].
[26] BTAC argued that in circumstances where the State is asserting that certain conduct is the subject of promises given in the Native Title Agreement, the legality of that conduct is highly relevant to a court considering that claim. It is argued that the State is seeking injunctive and declaratory relief in equity based on a contention that the Native Title Agreement should be read to include BTAC expressly consenting to and discharging Chevron and Onslow Salt from liability for engaging in ‘illegal’ mining in circumstances where the Native Title Agreement does not even expressly refer to the performance of ‘legal’ mining. BTAC argued that the proposition that it consented to, and gave release and discharge of any conduct whatsoever including conduct in breach of the law by means of general words in the Native Title Agreement is, on its face, ‘somewhere between weak and untenable’.
[28] BTAC contended that [14(d)] of the defence satisfied r 16.08(a) by raising the issue of the legality of the excavation and removal that is pleaded in [14] of the State’s cross-claim.Additionally, r 16.08(b) requires a party to plead a matter which might take another party by surprise. BTAC says illegality has long been treated as falling within that description, whether it is a true defence or as a factor that is relevant to construction of a provision of a contract (including whether illegal conduct is the subject of general promises made in the contract).
[29] His Honour concluded that paragraph [14] (d) of the defence should remain. His Honour further concluded at [30] that the parties should file a consent minute consequential upon his ruling. ‘In essence, within a short timeframe, the State should identify the particular provisions of the Native Title Agreement on which it relies and then, within a further reasonably short timeframe, BTAC should plead whether or not it asserts that on its face the Native Title Agreement does not carry the meaning contended for by the State.Alternatively, if it is relying on other facts for that position, what those facts are and how they affect the construction of the Native Title Agreement.The State’s argument that such facts could not be admissible to construe the ‘unambiguous’ Native Title Agreement should await the settled versions of the pleadings.’ His Honour further ordered that as the outcome had been mixed, that costs would be in the cause.