Gordon Charlie V Cape York Land Council (No. 2) [2006] FCA 1683

FEDERAL COURT OF AUSTRALIA

GORDON CHARLIE v CAPE YORK LAND COUNCIL (NO. 2) [2006] FCA 1683

NATIVE TITLE – further application for an interim injunction to restrain the conduct of an authorisation meeting to be held at Hope Vale convened by the Cape York Land Council in connection with a Native Title Determination Application by the Dingaal claim group.

Native Title Act 1993 (Cth), s 203BB(1) Gordon Charlie v Cape York Land Council [2006] FCA 1418 Australian Broadcasting Corporation v O'Neil [2006] HCA 46 Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 American Cyanamid Co. v Ethicon Ltd [1975] AC 396 Djabugay People v State of Queensland [2004] FCA 1652 GORDON CHARLIE v CAPE YORK LAND COUNCIL QUD426 OF 2006

GREENWOOD J

5 DECEMBER 2006

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD426 OF 2006

BETWEEN: GORDON CHARLIE

Applicant

AND: CAPE YORK LAND COUNCIL

Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 5 DECEMBER 2006

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The Notice of Motion filed by the Applicant on 30 October 2006 is dismissed. 2. Mr Gordon Charlie pay the costs of the Cape York Land Council of and incidental to the Notice of Motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD426 OF 2006

BETWEEN: GORDON CHARLIE

Applicant

AND: CAPE YORK LAND COUNCIL

Respondent

JUDGE: GREENWOOD J

DATE: 5 DECEMBER 2006

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 29 November 2006, I heard an application for an interim injunction to restrain the Cape York Land Council ('CYLC') from holding an authorisation meeting on 29 November 2006 and 30 November 2006 from 10.00am to 5.00pm each day at the Hope Vale Church Hall, Hope Vale for the purpose of considering amendments to Dingaal Native Title Application 6004/1998 to include other identified groups in connection with the Dingaal native title claim; to authorise the replacement of the applicants to that application; and a possible change to the title of the application. 2 I heard the application between 9.30am and 11.00am on 29 November 2006 and indicated that I would dismiss the Notice of Motion. I also indicated that I would shortly publish reasons for the proposed orders including an order in relation to the question of the costs of the Notice of Motion. I propose to dismiss the Notice of Motion and order the applicant to pay the respondent's costs of and incidental to the Notice of Motion. These are the reasons. 3 The meeting conducted at Hope Vale on 29 and 30 November 2006 had been convened by the CYLC as a result of cancellation of an authorisation meeting which was to take place on 31 October 2006. That meeting was cancelled due to the death of one of the native title applicant members, Mr Gary Yoren, on behalf of the Dingaal claim group. 4 This application for an interim order is the second application made by Mr Gordon Charlie to restrain the conduct of the authorisation meeting. The first application was heard at 8.30am on 31 October 2006, on the day of the proposed meeting. That interim order was sought in aid of final relief in the application by which Mr Charlie sought a declaration that the CYLC had failed to comply with a statutory duty on the part of the CYLC pursuant to s 203BB(1) of the Native Title Act 1993 (Cth) ('the Act') as a representative body 'to facilitate and assist the Brim family in and around Kuranda being persons who may hold native title to participate in Native Title Application 6004/98 despite requests to do so'. 5 That application was heard and determined on 31 October 2006 and the Court ordered that the Notice of Motion filed by Mr Charlie be dismissed (Gordon Charlie v Cape York Land Council [2006] FCA 1418). The Court provided extensive written reasons on 31 October 2006 for the making of that order. 6 In those reasons, the Court reviewed the evidence of Mr Charlie and the legal issues concerning the standing of the applicant to advance claims on behalf of the Brim family members, the applicant's standing to enforce a statutory duty on the part of the CYLC, the strength of the evidence of an arguable question to be determined, the balance of convenience and other matters. I do not propose to review in these reasons the evidence examined in the course of the earlier reasons. Rather, the question to be determined is whether the applicant has adduced sufficient additional evidence to establish a serious question to be tried as to the applicant's entitlement to final relief in the proceeding, whether the applicant is likely to suffer irreparable injury and whether the balance of convenience favours the granting of an injunction. 7 In the earlier application, the applicant relied upon an affidavit by Gordon Charlie filed on 30 October 2006. The applicant relies upon that affidavit in this application and an affidavit of Mr Peter Zachary Black, the solicitor for Mr Charlie, filed on 28 November 2006. 8 The additional evidence exhibited to the affidavit of Mr Black comprises a copy of a letter dated 1 November 1994 from the applicant to Mr Noel Pearson of the Cape York Land Council in which Mr Charlie asserts certain factual contentions in these terms: 'I need you people to understand me that I do not want the Yoren and Baru or Birri-Biddi Baru to be part of the Dingaal people. I said to you that dingaal is Charlie family and you keep ignoring me. So put that down on my file and application for native title that the Brim family in Kuranda through my ancestor Dikarr. This man related to Dikarr got sent from Cape Bedford mission to Cairns missions then to Mona Mona. The Brim family are divided into two families, them who are connected to Jabuguy-Kuranda land and those that are connected to the Charlie family and Dan Charlie told me this too. Tom Charlie relation was moved from Cape Bedford and ended up with so many name changes and then finally he end up at Kuranda. That's what happen at this time. Please invite our families to meetings. This is why I do not want to go to meetings as your organisation is supposed to be the representative body and ignores my request to invite the Brims from Kuranda'. 9 In that letter, the applicant identifies the members of the Brim family to be invited to meetings as Henry Brim and family, Kenneth Wayne Brim, Winnie Brim and family, Sherry Ann Brim, Marella Brim and family, Monica Brim and family and Flo Brim and family. 10 Mr Black also exhibits to his affidavit a copy of a letter from the applicant to Mr Allan Padgett of the National Native Title Tribunal in the same terms as the letter at [8]. Mr Black also exhibits a letter from the applicant to the CYLC dated 27 February, 2003 which is described as a 'Notice of Demand'. By that letter, Mr Charlie asserts that he is the traditional custodian for the Dingaalwarra People; purports to put the CYLC on notice that all Brim family members ought to be added to any claim of common law native title by the Dingaal claim group; anthropologists had previously been told by Mr Charlie that Brim family members are related to the Charlies; Baru and Yoren families are not members of the Charlie family; and many of the Brims though linked to the Jabuguy People of Kuranda have the Charlies as their main family by reason of dissent through an ancestor sent from Cape Bedford to Kuranda. In that letter, the applicant requests that members of the Brim family be invited to relevant meetings of the claim group. Mr Charlie sets out in the letter the same nominated Brim family groups as those identified in the letter of 1 November 1994. Mr Black's affidavit also exhibits two documents described as mandate documents by which a range of signatories assert that Brim family members are inter‑related through Clem Brim and Winnie and Flo Brim as part of the Dingaal and Charlie family groups and are to be considered as part of the Dingaal claim group. 11 In addition to these documents, Mr Black exhibits to his affidavit a further document which is described as minutes of a 'Dingaal Native Title Meeting' taken by Mr Mal MacDougall. The meeting is said to have taken place at the Lions Park in Cooktown on July 3, 2005. Those minutes recite an attendance list of 'Dingaal People' and 'non-Dingaal People'. The minutes recite five agenda items and decisions taken at the meeting in relation to each of those items. The first decision dealt with the decision making process to be adopted at the meeting. The second decision recited that other family claim groups claiming to have a connection with the lands the subject of the Dingaal claim namely, the Thiithaarr, Nguurruumungu, Thanil, Gulaal, Ngaathawarra, Birri Biddi Baru are not Dingaal clan members. The third decision recited that the only authorised claimants for any native title claim by the Dingaal family group in respect of lands the subject of the present native title application, are Charlie family members. The fourth decision dealt with legal representation and the fifth decision dealt with a proposed application to replace the current applicants on behalf of the Dingaal claim group with others, pursuant to s 66B of the Act. 12 The important history of the native title application on behalf of the Dingaal family claimant group is dealt with in the earlier reasons for the dismissal of the application made on 31 October 2006. I do not propose to deal with each of those matters in these reasons and any consideration of these reasons should be undertaken in conjunction with the earlier reasons (see [5] of these reasons). 13 The application for the interlocutory order was made on notice to the CYLC. In response to the various factual allegations, the CYLC filed extensive affidavit material which essentially addressed three issues. First, the extent to which an examination of the anthropological evidence demonstrates any relationship between the Brim and Charlie families and any 'connection' to the lands the subject of the Dingaal native title claim. Secondly, the extent to which doubts might be held about the accuracy of the minutes of the meeting which is said to have taken place on July 3, 2005 and thirdly, the extent to which the balance of convenience weighs in favour of the CYLC having regard to the logistical steps associated with convening a two day meeting of existing claim group members and the dislocation which would arise by enjoining the conduct of the meeting. 14 The 'organising principles' governing the grant of an interlocutory injunction are those identified at [19] of the joint judgment of Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O'Neil [2006] HCA 46 and the explanation of the organising principles is set out in the Reasons of Gummow and Hayne JJ at paragraphs [65] – [72]. At [19] Gleeson CJ and Crennan J said this: 'As Doyle CJ said in [Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440 at 442-443], in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 should be followed.' (per Gleeson CJ and Crennan J) [emphasis added] 15 At [65] – [72], Gummow and Hayne JJ affirm that the governing principles the Court addresses on applications for interlocutory injunctions are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. In assessing whether the applicant has made out a prima facie case in the sense contemplated in Beecham, 'it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial' [65]. Their Honours discussed the apparent distinctions between the views expressed and assumptions made concerning the approach adopted in Beecham and that reflected in the speech of Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1975] AC 396. At [70], Gummow and Hayne JJ said this: '70. When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity and outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.' 16 Their Honours Gummow and Hayne JJ expressed the view that 'the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient', does not accord with the doctrine as established by Beecham and 'should not be followed'. Their Honours Gummow and Hayne JJ observed at [71] that such a view obscures 'the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought' and at [72] their Honours said this: '[72] The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. …' 17 These explanatory views of the organising principles were adopted by Gleeson CJ and Crennan J. 18 Having regard to those organising principles, the evidence going to a serious question to be tried includes an affidavit by Dr Fiona Jane Powell, an anthropologist retained by the CYLC to prepare a 'Connection Report' in relation to Dingaal Native Title Application 6004/98. Dr Powell gives this evidence: '… 3. My knowledge of the Dingaal claim group and neighbouring groups derives from a long history of anthropological research in the region dating from 1970 and includes early and more recent family history and genealogical research. 4. I first compiled genealogical information Hopevale families, including the Charlie family, in the 1970's. 3. [There is an error in the numbering of Dr Powell's affidavit]. I subsequently compiled information about the Charlie family during research for a report prepared in 1995 by Dr Lee Sackett for the Dingaal Native Title Claim, for the Hopevale Native Title Determination, and more recently (since 2002) for the current Dingaal claim. 4. [An additional numbering error]. In addition to talking to many Dingaal people during my research, I have recently attended meetings of Dingaal traditional owners convened by Cape York Land Council in 2003, and on 28 February and 1 March 2006. 5. I am currently about two thirds of the way through writing a Dingaal connection report. I hope to be able to provide the connection report to the State by March 2007 in accordance with the work plan, provided that the necessary amendments to the claim are authorised and made. 6. In November 2006 the Cape York Land Council provided me with copies of correspondence received from Peter Z Black of Drakopoulos Black Solicitors and Mr Gordon Charlie and also with documents relating to an injunction application filed by Messrs Drakopoulos Black solicitors on behalf of Mr Gordon Charlie. In this correspondence and in the court proceedings there are claims of a connection between the Brim and Charlie families in relation to the Dingaal claim. 7. During my research for the current Dingaal application I have interviewed many Dingaal and other Hopevale people, some of whom are now deceased. Among those interviewed were Gordon Charlie, Jonathan Charlie and the late Henry Baru. At no time during this research did I obtain information about the connections of either the Charlie family to the Brim family or connections of the Brim family to the area of the current Dingaal claim. 8. According to the research I have conducted, the Charlie family are the descendants of ancestral persons reported in the records as Ngamu Ngakuburla, Bilmbil and Gaikumen, and to my knowledge, these person are not ancestors of the Brim family. 9. Based on my long term anthropological field work and research in this reason, I am not satisfied that the information provided in the documents submitted by Mr Gordon Charlie and Drakopoulos Black solicitors has demonstrated an arguable case of connection for the Brim family to the Charlie family and to the Dingaal claim area. Mr Gordon Charlie and Drakopoulos Black solicitors have not provided records, such as birth, death and marriage records to support the claims of a connection of the Brim family to the Charlie family and to the Dingaal claim area. 10. Neither Mr Gordon Charlie nor Drakopoulous Black solicitors has provided any records to support Mr Gordon Charlie's claim of the removal of a family member of the Charlie family from the Cape Bedford Mission to Cairns missions and then to Mona Mona. I have not heard of nor seen any such records. 11. On 22 November 2006, the CYLC sent me a copy of a document entitled "GENEOLOGY [sic] OF THE BRIM AND CHARLIE FAMILY CONNECTION" prepared for Tharpuntoo Legal Services by K. Johnson – James Cook University Researcher, which they [CYLC] had just obtained from the Court [arising out of the application on 31 October 2006]. 12. After inspecting this document, I advised the Cape York Land Council that the information represented on it is inconsistent with the information compiled about the Charlie family during previous research by myself and other researchers. I also advised the CYLC that I have found no information about a connection of the Charlie family to the Brim family. 13. The document "GENELOGY …CONNECTION" represents the Charlie family as part of the Brim family and as descendents of the union of Julputyai and Kuluwara and the union of Merukan and Marukeidji. This representation is not consistent with my research. 14. According to my genealogical materials, the Charlie family is descended from ancestral persons reported as Ngamu Ngakuburla, Bilmbil and Gaikumen. Ancestral persons with those names are not represented in the "GENEOLOGY … CONNECTION".' [emphasis added] 19 It is clear therefore that Dr Powell has a long term deeply rooted knowledge in the ancestral and anthropological evidence in relation to those claimant groups who have a demonstrated connection with the land the subject of the Dingaal claim. Notwithstanding compilation by Dr Powell of genealogical information in connection with the Hope Vale families including the Charlie family from as early as the 1970's including interviews with Gordon Charlie and Jonathan Charlie, Dr Powell's evidence is that at no time during her research did she obtain information of a connection between the Charlie family and the Brim family or a connection on the part of the Brim family to the area of the current Dingaal claim. 20 The CYLC filed further affidavits which addressed the question of whether the mandate documents accurately reflected the adoption of each mandate by particular signatories and affidavits addressing the question of whether individuals nominated in the minutes of meeting of 3 July 2005 as attendees, attended that meeting. 21 As to the mandate document, Mr George Rosendale swore an affidavit in which he denies that he signed any mandate document provided to him by Gordon Charlie or any of his associates. He denies that he signed the document either recently or in 1994. Ms Doreen Margaret Hart, a member of the Binthi clan group swore an affidavit which annexes a copy of one of the mandate documents attached to Mr Black's affidavit bearing her name. Ms Hart denies that the signature is her signature. She says she did not sign the document and has never seen it prior to the CYLC bringing the document to her attention. 22 In relation to the meeting of 3 July 2005, the CYLC filed a number of affidavits all of which raise a question about the accuracy of the minutes. For example, Ms Elaine McGreen a health worker of Hope Vale and a member of the Dingaal clan group swore an affidavit referring to the material filed on behalf of Gordon Charlie including the exhibited minutes of the meeting of 3 July 2005. Ms McGreen says that her name appears on the list of attendees as 'non‑Dingaal'. She says that she did not attend the meeting, was surprised to see her name on the document as an attendee and did not take any part in the proceeding. To the same effect is the affidavit of Ms Jacklyn Karen Yoren, the affidavit of Pamela Joyce Baru and the affidavit of Amanda Kim Baru. 23 Mr Thomas David Jantke, a Minister of Religion of Hope Vale swore an affidavit in which Reverend Jantke deposes that he has held the position of a Minister of the Lutheran Church in Hope Vale since February 1999; that he was with Vernon Yoren when Mr Yoren passed away at the Hope Vale Clinic on 15 September 2000; that details of Mr Yoren's death and burial are contained in records of the church; and that Reverend Jantke presided over the burials of Henry Baru on 2 July 2002, Elaine Baru on 17 December 2004 and Phyllis Greenway (nee Baru) on 7 October 2004. Reverend Jantke says that Lutheran Church records show that Kevin Yoren passed away on 17 July 1998. 24 However, the minutes of the meeting of 3 July 2005 record Vernon Yoren, Henry Baru, Elaine Baru, Phyllis Greenway (nee Baru) and Kevin Yoren as attendees at the meeting on 3 July 2005. 25 In addition, Ms Florence Rose Deemal filed an affidavit in which she deposes that she is an Area Officer for Cooktown employed by CYLC and commenced this position in 2000; that on 3 July 2005 after seeing notification advertised about a Dingaal meeting Ms Deemal attended at the RSL in Cooktown which is immediately next to the Lions Park in Cooktown; that Mr Phillip Baru was in company with Ms Deemal notwithstanding that Mr Phillip Baru's name is recorded as an attendee at the meeting; that neither Mr Phillip Baru nor Ms Deemal attended the meeting; and that Ms Deemal observed approximately five attendees meeting in the park including Ruth Schaffer, Mary Cobus and approximately four other people that Ms Deemal could not identify. Ms Deemal says that she did not observe any of the people listed on the minutes of meeting as 'non‑Dingaal' in attendance including Gordon Charlie. Ms Deemal says that most of the people listed as non‑Dingaal are or were personally known to her. 26 Having regard to all of these affidavits, there is serious doubt as to the accuracy of the mandate documents and more profoundly serious doubt about the accuracy and integrity of the document described as the minutes of meeting of 3 July 2005. I make no finding about that document other than to observe for interlocutory purposes that no weight at all should be attributed to it. 27 The respondent also filed an affidavit from Mr Simon Charles Downing, the Legal Officer employed by CYLC. That affidavit deposes to searches undertaken of CYLC records to try and identify any record of the receipt by the CYLC of the documents dated 1 November 1994 and 27 February 2003 exhibited to the affidavit of Mr Black. Mr Downing was not able to identify the receipt by the CYLC of any such documents. Mr Downing deposes to the steps taken to prepare for the two day meeting, the number of traditional owners attending the meeting and the dislocation which would be caused by postponing the meeting. 28 Mr Black relies upon two further matters. First, an anthropologist consulted by Mr Black, Mr Neill Phillipson, has provided a letter to Mr Black in which he says that he has made 'a cursory examination' of material provided to him including affidavits and Land Council minutes and his initial assessment is that 'further anthropological work needs to be undertaken including a connection report as a matter of urgency'. Dr Powell, as the evidence recited at [18] demonstrates, has been involved in the preparation of a connection report, has completed approximately two thirds of the work leading to a connection report and has been engaged in a compilation of genealogical information concerning Hope Vale families including the Charlie family since the 1970's. Plainly enough, the evidence of Dr Powell is persuasive for interlocutory purposes having regard to the evidence of Mr Neill Phillipson of a cursory examination of material. 29 Secondly, Mr Black says that in the absence of an interlocutory order enjoining the meeting, the claims of the Brim family members articulated by Mr Charlie will be irreparably lost. As to that contention, the claims of the Brim family members will not be lost should the meeting proceed. If the Brim family members are in a position to provide reliable information demonstrating an inter‑relationship between the Brim and Charlie families and a connection with the lands the subject of the Dingaal claim, such information can be put before the CYLC and other Dingaal claim group members to determine whether an additional claim group should be joined as a participant with the present claim group members. Such evidence will also need to deal with the issues raised in the previous Reasons for Decision (see [5] of these reasons) concerning the consequences for any such claim as a result of the decision of Spender J in Djabugay People v State of Queensland [2004] FCA 1652. 30 Accordingly, I am not satisfied that Mr Gordon Charlie has demonstrated a serious question to be tried or a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the applicant will be held entitled to relief. Moreover, the material relied upon by the applicant in connection with the minutes of meeting of 3 July 2005 and the purported decisions arising out of that meeting is, at least for interlocutory purposes, entirely unreliable. In addition, I am satisfied that no irreparable injury arises should the meeting proceed. I am further satisfied that having regard to the extensive steps taken to convene the meeting and the dislocation caused by enjoining the meeting, the balance of convenience weighs in favour of making no interlocutory order. 31 Accordingly, I propose to dismiss the Notice of Motion. 32 The CYLC has sought an order for costs of the proceeding. I am satisfied that the material so fails to demonstrate any of the necessary elements in support of an interlocutory order of the kind sought by the Notice of Motion that the applicant ought to pay the costs of the CYLC of and incidental to the Notice of Motion. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.