FEDERAL COURT OF AUSTRALIA Ward v Northern Territory [2002] FCA 171 NATIVE TITLE – claim groups – proper applicants – change of solicitor – application to replace current applicants under s 66B if the Native title Act 1993 (Cth) – discretionary power of Court to make an order under s 66B Native Title Act 1993 (Cth) Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 cited Walton v Gardiner (1993) 177 CLR 378 cited BEN WARD AND ORS v THE NORTHERN TERRITORY OF AUSTRALIA AND ORS NO DG 6008 OF 1998 O'LOUGHLIN J 8 FEBRUARY 2002 DARWIN IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY DG 6008 OF 1998 BETWEEN: BEN WARD AND OTHERS APPLICANT AND: NORTHERN TERRITORY OF AUSTRALIA AND OTHERS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 8 FEBRUARY 2002 WHERE MADE: DARWIN THE COURT ORDERS THAT: 1. These proceedings be referred to the National Native Title Tribunal for mediation, limited to the Tribunal investigating and discussing with the interested parties, being those Aboriginal persons who are or who claim to be the Native Title Claim Group, whether there can be an ultimate consensual identification of the applicants in these proceedings for the benefit of the Native Title Claim Group. 2. The Tribunal report to the Court the results of the mediation as soon as possible, but in any event to report progress within 6 months of this date. 3. The District Registrar write to Mr Imlah directing him to file and serve within fourteen days of the receipt of the District Registrar's letter either a notice that he has ceased to act as solicitors for the applicants or a notice that he still regards himself as acting as solicitor for the applicants. 4. Mr Kennard within two months of this date file and serve either a notice verified on oath that he has received instructions to act for some or all of the applicants in this matter listing the names of each such applicant and appending to that notice a written verification of his instructions from such applicants, or a notice verified on oath that he no longer acts for any of the applicants in this matter. 5. The document on the Court file, which is numbered thirteen and which is entitled "Notice of Change of Solicitor and Address for Service" be marked by the District Registrar, "Rejected pursuant to the order of the Court dated 8 February 2002". 6. The application to replace the named applicants dated 6 February 2002 be dismissed. 7. These orders be drawn up, entered and sealed by the Registry and served by ordinary prepaid post by the Registry on the National Native Title Tribunal, Mr Imlah, Mr Kennard, Mr Levy, the seventeen named applicants [at their last known address as shown on the Court file], the parties named in the application to replace the named applicants other than Murphy Simon, Peter Newry, Kim Aldus, and Button Jones, [at their last known address as shown on the Court file] or where no address is shown, care of Mr Levy. 8. The directions hearing in this matter be adjourned to Wednesday, 14 August 9.00 am. Liberty to apply to any party and to any interested party on seven days notice. 9. There be no order on the Notice of Motion filed on 3 December 2001by Mr Levy on behalf of the parties for whom he is acting. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY DG 6008 OF 1998 BETWEEN: BEN WARD AND OTHERS APPLICANT AND: NORTHERN TERRITORY OF AUSTRALIA AND OTHERS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 8 FEBRUARY 2002 PLACE: DARWIN EX TEMPORE REASONS FOR JUDGMENT 1 These proceedings which were brought on for hearing call for the answers to two questions. First, who are properly to be regarded as the applicants in this matter? Secondly who, if any, is the solicitor on record for the applicants? In order to answer these questions, it is necessary to review the papers that have been filed so far. 2 The commencing point is some seven years ago when, on 3 January 1995, an application for a determination of Native Title was lodged with the National Native Title Tribunal in Perth by the Aboriginal Legal Services of Western Australia Incorporated. It was said to be acting on behalf of twenty-two named men and women, seventeen of whose names still appear on some of the current documents that have more recently been filed in these proceedings. The five names that are missing from the original twenty-two are Paddy Carlton, Ben Barney, Blanche Flying Fox, and two others; both of whom, so I have been told, have died; I will refer to them by the initials "RG" and "JL" to avoid offence. 3 The seventeen who remain are Ben Ward and John Toby; the third-named I will refer to by initials "JW" for, as I understand it, that person may also have since died. The remaining persons are Ron Carlton, Jeff Janama, Dodger Carlton, Kim Aldus, Murphy Simon, Sheba Dignari, Peter Newry, Toby Banmar, Ronnie Yundun, Button Jones, Judy Mengil, Doris Pannikin and Colin James. 4 The land over which the determination has been sought covers several Pastoral Stations in the Northern Territory of Australia, and the claim is wholly situated within the boundaries of the Northern Territory. The relevant stations include: Bullo River, Spirit Hills Lagoon, Newry, part of Auvergne and Part of Rosewood. It also includes Entrance Island and a piece of land described as Northern Territory Portion 4170. The claim area is in the north-west of the Territory bounded on the north by Joseph Bonaparte Gulf. 5 The matter first came before the Federal Court on a directions hearing on 17 March 1999. On that occasion the record of proceedings indicates that a Mr Beckett of the Northern Land Council appeared on behalf of the applicants, but apparently on instructions from the Aboriginal Legal Services of Wester Australian Incorporated. On that hearing, the matter was referred back to the National Native Title Tribunal pursuant to s 63 of the Native Title Act 1993 (Cth) ("the Native Title Act"). 6 On 30 September 1999, some six months later, a notice of motion was filed. It is document No 7 on the court file. In that notice of motion an order was sought that leave be granted to the applicants to amend their application. The filing notice contained the following information: "Paul Kennard for David Imlah, Principal Legal Officer, Aboriginal Legal Services of Western Australia Incorporated." That application was supported by the affidavit of Paul Gregory Kennard in which he deposed that he had "the care and conduct of these proceedings on behalf of the applicants". At about the same time, affidavits by certain of the applicants were filed. They were the sixteen names that I have identified, other than the third-named JW. Each of the affidavits was in generally similar terms, and it is sufficient to quote from the affidavit of Ronnie Yundun par 9 in which he said: "I am authorised by all the persons in the claim group to make the application for a determination of Native Title and to deal with matters arising in relation to it, including the making of amendments, pursuant to a process of decision-making applicable to decisions of the Native Title Claim Group. That process involves decisions being made by members of the group through consensus." In par 10 Mr Yundun went on to depose: "In 1994 meetings were held in Kununurra at which senior traditional owners were confirmed by the members of the claim group, through consensus, to become applicants in Native Title application number 95/1 which was subsequently lodged in the National Native Title Tribunal." I interpolate to say that that is the current proceedings presently before the Court. Mr Yundun continued in par 10: "The senior traditional owners were confirmed on the basis that they represent local groups of people within the claim area and were authorised to represent their interests in the application and to deal with matters relating to it. The senior traditional owners are those names as applicants in the hearing of this affidavit." That heading contained the seventeen names, that is the third-named JW was referred to. As I have said, the other affidavits were basically in identical terms, and it is not necessary to refer to them in detail. 7 On 20 April 2000, Mr Kennard filed a further affidavit deposing to the fact that he had, on earlier occasions, served copies of orders that the Court had made on the proprietors of Spirit Hills Station and Lagoon Station. He was obviously still then asserting that he was acting for the sixteen or seventeen applicants, depending upon whether JW was then alive or not. 8 The next document that appears on the Court file was filed thirteen months later on 1 May 2001. The document was entitled: "Notice of Change of Solicitor and Address for Service". It reads as follows: "The applicants", (and I interpolate that the applicants then had to be either the sixteen or the seventeen or maybe even the twenty-two, it is difficult to know which): "… who were formally represented by the Principal Legal Officer of the Aboriginal Legal Aid Service of Western Australia inform the Court that they have changed their solicitor and are now represented by Ron Levy, Principal Legal Officer, Northern Land Council. The address for service of the applicants is Ron Levy, Principal Legal Officer, Northern Land Council, Post Office Box 42921, Casuarina, Northern Territory, 0811." There then followed a fax and a phone number. The document was dated 1 May 2001; it was signed "Ron Levy" and that name was then typed with the appellation "Principal Legal Officer". As subsequent events show, the information in that document was materially wrong. 9 A few days later on 10 May 2001 a document was filed. There is no filing note. It was entitled "Notice of Objection to Notice of Change of Solicitor and Address for Service". It purports to be signed by Robert K. Hannan who describes himself as Executive Coordinator of Miriuwung and Gajerrong Families Heritage and Land Council. It states: "The applicants who were formerly represented by the Aboriginal Legal Service of Western Australia have by resolution passed on 23 October 2000 confirmed that the Miriuwung and Gajerrong Families Heritage and Land Council [Act] as the agent of the applicants." The document then continued: "The applicants include Ben Ward, John Toby, [JW], Ron Carlton, Jeff Janama, Dodger Carlton, Sheba Dignari, Toby Banmar, Ronnie Yundun, Judy Mengil and Colin James." That represents eleven of the seventeen names. No explanation was given as to why only eleven of the names were referred to. The remaining six names can be divided into two groups: the first group comprise four men - Kim Aldus, Murphy Simon, Peter Newry, and Button Jones. These four, so it would seem, have switched their allegiance to the Northern Land Council and to Mr Levy for their names appear as 4 of the intended future applicants, should Mr Levy's application to change the name of the applicants be successful. The remaining group, comprising (two women, Doris Pannikin and Eileen Huddleston) have just disappeared. Nothing is known, from the papers, as to where their allegiance might lie. 10 On 14 June 2001, some but not all, of the seventeen applicants filed affidavits in these terms – I will use the affidavit of Ben Ward as an example; the others are virtually in identical terms. He gave his address; he stated that he was an applicant in these proceedings; and then he deposed: "I have never instructed or given authority for Ron Levy or the Northern Land Council to act for me in this matter. He has had no instructions from myself to allow him to file a Notice of Change of Solicitor and Address for Service in the Federal Court on my behalf in relation to the matter. I confirm that the Miriuwung and Gajerrong Families Heritage and Land Council acts as my agent in this matter, and that that agent instructs its own solicitor as and when required in relation to this matter. That solicitor is not Ron Levy." 11 On 16 October 2001 the Court ordered that there be an inquiry into the alleged appointment of Mr Levy as the solicitor for the applicants. The seventeen applicants were authorised to file and serve on or before 22 November any material in support of their assertion that he was not so authorised to act but no further material was lodged by them or by any one of them. Paragraph 3 of the order of 16 October directed that any material that Mr Levy wished to file was to be filed by 3 December. No material was filed by that date. 12 The direction with respect to Mr Levy's material being filed was not contingent upon material first being filed by Mr Kennard, or the sixteen or by sixteen applicants who may have been thought to be represented by him. The order of 16 October 2001 then stipulated that the matter was listed for hearing for 14 December. However, there being insufficient business to warrant the attendance of a Judge in Darwin in that week, the matter was stood over until today. 13 Yesterday, 7 February, Mr Levy filed an application under s 66B of the Native Title Act, it being an application to replace certain named applicants. The document read as follows: "The following members of the Native Title Claim Group will, at Darwin, on an unspecified date at Darwin, apply to replace the persons currently named as applicants in this Native Title application." There then follows a list of fourteen names: "Paddy Carlton, Murphy Simon, Peter Newry, David Newry, Kim Aldus, Button Jones, Ben Barney, Katherine Yarrbi, Peggy Griffiths, Jess Kumboi, Blanche Flying Fox, Douglas Boombi, Alice Boombi, and Herbert Anthony." Four of those, as I have previously indicated - Kim Aldus, Murphy Simon, Peter Newry and Button Jones – are within the current group of sixteen or seventeen or twenty-two applicants. Affidavits in support of the application to replace the named applicants were filed by nine of that fourteen. No affidavits have been received by Jessie Kumboi, Douglas Boombi, Alice Boombi, Herbert Anthony, or Kim Aldus. The remaining affidavits from the other nine present applicants will need to be the subject of particular attention but before I come to them it is appropriate to make reference to the provisions of s 66B [check] of the Native Title Act. 14 Basically, it provides that one or more members of a Native Title Claim Group may apply to the Federal Court for an order that the member or members jointly replace the current applicants for the application on the grounds that either the current applicants are no longer authorised by the claim group to make the application or to deal with the matters arising in relation to it, or that the current applicants have exceeded the authority given to them by the claim group to make the application and to deal with the matters arising in relation to it. In addition, however, the applying members under s 66B must satisfy the Court that they are authorised by the claim group to make that application and to deal with the matters arising in relation to it. 15 In my opinion, it would not be appropriate to make the orders as sought by Mr Levy today. He has faxed to Mr Kennard, who has acknowledged receipt, of copies of the affidavits, but there is no evidence that the application or the affidavits have been served on any of the seventeen people, bearing in mind that Mr Kennard has told me this morning that he acts for nine only of them – nor is there any evidence to suggest that any agent or solicitor representing those other parties has been served with the proceedings. There is no evidence that the application and affidavits have been filed on any of the respondents to the substantive application. As I am of the opinion that the papers that have been filed by Mr Levy would not justify making the orders that he seeks, I propose to set out my reasons for dismissing his application. 16 I have already summarised the three basic issues that must be established in order to obtain an order under s 66B. Even if those three issues are satisfactorily established, there still remains a discretionary power in the Court. Subsection 2 of that section states that the Court "may" not "must" the Court "may make the order if it is satisfied that the grounds are established". 17 Each of the affidavits in support of the application for change of applicants was in substantially similar terms in that each deponent identified himself or herself as a Miriuwung or Gajerrong person, as a traditional owner for his or her country, and as a person who, in consultation with his or her elders, has authority to speak for the country. The affidavits went on to say that many of the traditional owners were unhappy with the Aboriginal Legal Services of Western Australia Incorporated, and that they, the deponents, had arranged for the Northern Land Council lawyers to handle their claims. 18 The deponents then addressed the five missing people and, as to them, I will read from the affidavit of Paddy Carlton which I regard as representative of all of the affidavits that were filed. In par 9 he said: "I understand that in 1998 the persons named as applicants for this application were varied by the Legal Service lawyers. [I take that to mean the Aboriginal Legal Service of Western Australia Incorporated] Five of the original 22 applicants were removed. This includes Ben Barney who is a senior Damberal traditional owner, Blanche Fox who is a senior Binjin traditional owner, and myself. The other two persons removed are no longer alive." In par 10 he deposes: "I was never told by the Legal Services lawyers, or anyone associated with them, that my name had been removed from the list of applicants. The first I knew that my name had been removed was when I was informed by Kim Barber and my lawyer, Ron Levy, yesterday." 19 His affidavit was dated 27 January 2002. Mr Carlton's affidavit then goes on in par 12 to note that some of the seventeen named applicants in the substantive proceedings have country that is within the Native Title determination application. He lists them as Ronnie Carlton, Dodger Carlton, Sheba Dignari, Toby Manmar, Ronnie Yundun, Judy Mengil, and Colin James. That accounts for seven of the seventeen, but it leaves ten to be accounted for, or maybe nine if JW is now deceased. 20 However, in par 14 of his affidavit, Mr Carlton then deposes: "The other 4 persons, one of whom is deceased, are Dawawang [traditional owners] for country especially in Western Australia which is not part of this Native Title application. These persons are not Dawawang for land in this application and should not be part of the group of named applicants for it." 21 I cannot understand why he has referred to the "other 4 persons". One would have expected him to have referred to the "other 10 persons", or perhaps" the other 9" if JW is in fact deceased. Furthermore, these four persons are not even identified in the affidavit. His affidavit then proceeds in par 15 to raise the matter of primary importance. It says: "I have participated in numerous meetings since 1994 regarding this and the other two Native Title applications. Various of those meetings, including one held today [that being 27 January] have considered who, under Aboriginal law, should be named as applicants in this application. It has been decided that the group of persons currently named as applicants [that is the seventeen] are not or are no longer authorised to make this application or to deal with matters arising under it." In par 16 he goes on to say: "It is proposed that the group of persons currently named as applicants be varied or replaced by a group which includes the following persons, all of whom are Dawawang, that is traditional owners, for country in this application." (Emphasis added) 22 The names that then follow, are Paddy Carlton, Murphy Simon, Peter Newry, David Newry, Kim Aldus, Button Jones, Ben Barney, Katherine Yarrbi, Peggy Griffiths, Jessie Kumboi, Douglas Boombi, Alice Boombi, and Herbert Anthony. Significantly, the name of Blanche Flying Fox is omitted, but no explanation is given for that omission. As I have earlier stated, par 16 merely states that: "It is proposed that the group of persons … be varied …" There is no indication of a formal authorisation. 23 Section 66B(1)(b) stipulates that the member or members who apply for a replacement order are to be authorised by the claim group. There is insufficient identification in this affidavit to establish such authorisation. Indeed, arguably, there is even insufficient information to identify the claim group, for the only reference to the claim group is to be found back in the original application when it is described as the Miriuwung and Gajerrong People. 24 The information concerning the meeting that was held on 27 January 2002, the date of Mr Carlton's affidavit, is wholly deficient. There is no information about that meeting. Who convened it and why was it convened? To whom was notice given and how was it given? What was the agenda for the meeting? Who attended the meeting? What was the authority of those who attended? Who chaired the meeting or otherwise controlled the proceedings of the meeting? By what right did that person have control of the meeting? Was there a list of attendees compiled, and if so by whom and when? Was the list verified by a second person? What resolutions were passed or decisions made? Were they unanimous, and if not, what was the voting for and against a particular resolution? Were there any apologies recorded? 25 It may not be essential that these questions be answered on any formal basis such as in terms of the convening and conducting of a meeting in a commercial atmosphere, but the substance of those questions must be addressed. 26 I referred the parties to the decision of Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 ("Moran") a decision of Wilcox J, an unreported decision that was delivered on 25 November 1999. Much the same problem as existed in Moran exist in this case. There were two warring factions. Wilcox J dismissed the substantive application in Moran because of a failure on the part of the applicants, as named, to comply with the provisions of s 61(1) of the Act which calls upon the applicants to represent the Native Title Claim Group. 27 I would not want to exercise such a power except in the clearest circumstances, but I do warn the parties that it is a risk that they are presently facing. It is important that both factions know and understand that if an action is foredoomed to failure, it can be summarily dismissed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393. In the hope that this can be avoided, I propose to refer these proceedings to the National Native Title Tribunal for mediation. But at this stage, my order is limited to the Tribunal investigating and discussing with the interested parties, being those Aboriginal persons who are or who claim to be the Native Title Claim Group, whether there can be an ultimate consensual identification of the applicants in these proceedings for the benefit of the Native Title Claim Group. 28 I direct the Tribunal to report to the Court the results of its efforts as soon as possible, but in any event to report progress within six months. I order that the District Registrar write to Mr Imlah directing him to file and serve within fourteen days of receipt of the letter either a notice that he has ceased to act as solicitor for the applicants or a notice that he still regards himself as acting as solicitor for the applicants. I order that Mr Kennard within two months of this date file and serve either a notice verified on oath, that he has received instructions to act for some or all of the applicants in this matter listing the names of each such applicant and appending to that notice a written verification of his instructions from the applicants, or conversely, he is to file within that period of time a notice verified on oath that he no longer acts for any of the applicants in this matter. 29 I order that the document on the Court file, which is numbered thirteen and which is entitled "Notice of Change of Solicitor and Address for Service" be marked by the District Registrar, "Rejected pursuant to the order of the Court dated 8 February 2002". I next order that the application to replace the named applicants dated 6 February 2002 be dismissed. I order that these orders are to be drawn up, entered and sealed by the Registry and served by ordinary prepaid post by the Registry on the National Native Title Tribunal, Mr Imlah, Mr Kennard, Mr Levy, each one of the seventeen named applicants at their last known address as shown on the Court files, every one of the parties named in the application to replace named applicants other than Murphy Simon, Peter Newry, Kim Aldus, and Button Jones, at their last known address as shown or where no address is shown, care of Mr Levy. The directions hearing in this matter is adjourned to Wednesday, 14 August 9.00 am. There is liberty to apply to any party and to any interested party on seven days notice. I decline to make any order on the Notice of Motion that was filed on 3 December 2001 by Mr Levy on behalf of the parties for whom he is acting. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 8 February 2002 Counsel appointed dux litis for the inquiry into the appointment of solicitor for the Applicants: Mr P Kennard Counsel for those Applicants seeking orders pursuant to Section 66B of the Native Title Act: Mr R Levy Counsel for the First Respondent: Mr S Hearne Solicitor for the First Respondent: Solicitor for the Northern Territory Date of Hearing: 8 February 2002 Date of Judgment: 8 February 2002