Stone, Siopis and Collier JJ
This judgment raises an issue of legal standing, and also deals with the question of whether a corporation offering to conduct Aboriginal heritage surveys in a native title claim area is purporting to act on behalf on individual members of the native title claim group.
The judgment is an appeal against a decision of Gilmour J in the Federal Court. A number of Kariyarra individuals had brought an action under the Trade Practices Act 1974 (Cth) against Marapikurrinya Pty Ltd and its directors, alleging that the corporation had falsely represented that it is a representative of the Kariyarra People and entitled to act in that capacity. Before the case came to trial, the parties agreed to a consent orders intended to resolve the matter. One of the proposed orders was for the making of a declaration that ‘The [Respondents] do not have and have not previously had authority to act for or on behalf of the Applicants in relation to any matters’.
Gilmour J refused to make this order for a number of reasons: first, on the grounds that the individual Kariyarra persons had no standing to bring the proceeding; second, because there would be no utility in making the declaration sought; and third, on the basis that there was ‘no justiciable controversy’ between the parties.
On the standing issue, his Honour considered that the Trade Practices Act matter was so closely connected to the Kariyarra Native Title claim that only the native title applicant (the person or persons authorised by the claim group) were capable of bringing an action complaining that the corporation was falsely claiming to represent the claim group. As individuals, the persons who had in fact brought the claim lacked the requisite standing.
The individual Kariyarra persons appealed from Gilmour J’s decision, arguing that his Honour had wrongly decided the standing issue. On appeal, Stone, Siopis and Collier JJ supported Gilmour J’s reasoning but found it unnecessary to make a final decision on the standing issue. Instead, their Honours considered that Gilmour J’s refusal to make the declaration sought by the parties was a valid exercise of his discretion.
In particular, the Court on appeal agreed with Gilmour J’s view that the evidence did not establish that the corporation had purported to act on behalf of each individual person in the Kariyarra claim group. Any evidence that the corporation had purported to represent the claim group as a whole did not amount to evidence that the corporation had purported to represent each member individually. This meant, in the Court’s view, that it was inappropriate to make the declaration sought, and so the appeal against Gilmour J’s decision was dismissed.