FEDERAL COURT OF AUSTRALIA Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2) [2009] FCA 1180 GARRY DODD AND OTHERS ON BEHALF OF THE WULLI WULLI PEOPLE v STATE OF QUEENSLAND AND OTHERS QUD 6006 of 2000 DOWSETT J 10 AUGUST 2009 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY general division QUD 6006 of 2000 BETWEEN: GARRY DODD AND OTHERS ON BEHALF OF THE WULLI WULLI PEOPLE Applicant AND: STATE OF QUEENSLAND AND OTHERS Respondent JUDGE: DOWSETT J DATE: 10 AUGUST 2009 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This matter has a somewhat confused history. A meeting of the claim group was held on 14 February 2009 at Mundubbera. The meeting was called to consider proposed changes to the claim group description and of the persons constituting the applicant. Minutes of that meeting appear as exhibit CR1 to the affidavit of Christine Royan filed on 7 April 2009. There may have been people in attendance who were not members of the claim group as then described, but who were to be members pursuant to the proposed amendment. In the event, proposed resolutions 6 and 11 were adopted. Proposed resolution 6 was: That the Native Title Claim Group for the application for a determination of native title rights and interests known as the Wulli Wulli native title claim (Federal Court File No. QUD6006/00) be amended to be described as the descendants of the apical ancestors listed below: … 2 There follows a list of 17 apical ancestors. Proposed resolution 11 was in the following form: That this meeting authorizes the following members of the Wulli Wulli native title claim group to make the application for determination of native title and deal with matters arising in relation to it subject to the terms and conditions provided to this meeting and marked "B". … 3 There is then a list of 15 names. According to the minutes, resolution 6 was carried, 111 votes for and four against. Resolution 11 was adopted unanimously. I am told that an application for leave to amend the application was made to the registrar who allowed the amendment of the claim group description but declined leave to amend the composition of the applicant for a formal reason. That application for leave was then listed for hearing before me in Rockhampton on 11 June this year. On that occasion, Mr Lea and his mother, Ms Lea, attended and opposed the application for leave to amend the composition of the claim group. A number of reasons were advanced in support of such opposition, all of which I disposed of, save for one issue which emerged in the course of argument. It was not clear to me that the amendment to the claim group description had been voted on separately by the claim group, as previously constituted, and by the claim group, as it was to be constituted. I have previously held that such procedure is necessary. Proceedings were adjourned to today to enable the applicant to clarify that matter. I indicated that in the event that I was satisfied as to it, I would allow the amendment. This possible irregularity had not been raised before the registrar when she gave leave to amend the claim group description, and there had been no formal application for review of that decision, or for me to reconsider it. 4 In Rockhampton, Mr Lea and Ms Lea claimed that at the meeting, they, or members of their particular family group within the claim group, had sought to nominate persons for election as members of the applicant group, which nominations had been arbitrarily rejected. However there was no evidence before me as to that matter. It was raised purely as an assertion from the bar table. In those circumstances, I declined to act upon it. I did not, at that time, extend to Mr Lea and Ms Lea the opportunity to lead evidence at the proposed adjourned hearing, in support of their assertion. I had allowed Mr Richards for the applicant the opportunity to lead further evidence concerning the vote. Perhaps I should have offered Mr and Ms Lea a similar opportunity to lead further evidence concerning their case. 5 Mr Lea appeared today. In the course of argument, and without any previous notice to other parties participating in these proceedings, he sought leave to read an affidavit by himself, sworn on 4 August 2009, in which he offers evidence in support of his previous claim that nominations were arbitrarily rejected at the meeting. Although I had disposed of that argument on the previous occasion, my decision had not been formalized in any particular order. In those circumstances, I felt that it was open to me to entertain opposition to the present motion to amend the composition of the applicant, notwithstanding the fact that it involved revisiting matters which I had previously considered. In view of my failure to extend to Mr Lea and Ms Lea the opportunity to lead further evidence, I felt that I should do so now by allowing Mr Lea to read his affidavit. When I indicated that I was willing so to do, Mr Lea indicated that he would like to get further affidavits in support of his assertions. That seemed to me to be pushing the point a little too far, and I declined to adopt that course. I was also concerned to ensure that Mr Richards had an adequate opportunity to respond on behalf of the applicant. That was done by way of oral evidence from Ms Royan, one of the deponents, and there has been cross-examination of her by Mr Lea. 6 Over opposition, I also allowed Mr Lea to call another witness, Ms Gooda, who gave oral evidence and was cross-examined by Mr Richards. The factual question concerned the way in which the election of members of the applicant group was conducted. The meeting was chaired by Mr McAvoy, who is a Sydney barrister regularly engaged in native title applications. He was apparently retained by the Queensland South Native Title Services Limited ("Queensland South'), who act for the applicant in this matter. It is common ground that when the question of nominations for membership of the applicant group was raised, various non-members of the claim group were asked to leave the meeting. This included, in particular, Mr McAvoy and the representatives of Queensland South. When they returned to the room at a later stage, they were confronted with a board upon which had been written 42 names, apparently as potential nominees for membership of the applicant group. One of the names was that of Phyllis Lea, Mr Lea's mother. 7 The course of events thereafter is a little uncertain. Ms Royan said that there was general discussion as a result of which a list of nominees emerged, and that there was then a secret ballot of members which resulted in the election of the 15 persons identified in resolution 11. At some stage, the names of the 17 apical ancestors identified in resolution 6 were written on a board. It seems that this was done for some purpose related to the election. I can only infer that it was done for the purpose of facilitating some form of representation of all apical ancestors in those who were to constitute the applicant group. Ms Royan was unable to give detailed evidence as to how the names had appeared on the board or as to how the question of representation was addressed, other than that it was by way of discussion amongst those attending the meeting. She said that at some stage, the number of nominees was reduced from 42 to a smaller number, and that the secret ballot then resulted in the reduction to 15. 8 Mr Lea has a somewhat different version of the meeting. His perception was that various names were raised from the floor and that Ms Powell, an anthropologist who had been retained for the purposes of the claim, virtually determined whether or not a particular nominee should be allowed to stand, apparently depending upon whether or not he or she was eligible to represent one or other of the groups claiming through each apical ancestor. Mr Lea said that individual votes were taken in a number of cases with a view to identifying the particular person who should be nominated, and that it was in the course of this process that his mother, Ms Lea, was excluded from nomination. This account seems to me to be inherently incredible in that if such a course were followed, there would have been no need for the final vote by all those present in order to identify the candidates. 9 It is possible, I suppose, that there may have been more than one candidate to represent one or other of the apical ancestor groups. Such problem could hardly be resolved by an overall vote of all those present at the meeting, or at least, I would have thought that would be unlikely. It is more likely that each individual group would have been left to resolve the question of its representation. Further, Ms Royan said that she was near Ms Powell throughout the meeting and that, although Ms Powell may have responded to some questions, she did not become involved in any way in accepting or rejecting nominations. It seems unlikely to me that Ms Powell would have become so involved. It is even less likely, I would have thought, that, had she become so involved, those attending the meeting would not have complained about it. 10 It is also significant that the resolutions at the meeting do not reflect any decision that the members of the applicant group should primarily represent groups descended from individual apical ancestors. It is more likely, I think, that there was an attempt to obtain some degree of balance amongst the families. I do not accept that there was any formal decision that individual members should necessarily represent individual apical ancestor groups. Had there been such an intention, it is most unlikely that the outcome would have been 15 applicant group members representing the descendants of 17 apical ancestors. 11 I should also refer to the evidence of Ms Gooda. She gave two slightly different versions in the course of her evidence. Initially, she seemed to refer to discussions which occurred in the course of the meeting which led to questions being asked of Ms Powell. To some extent, this seemed consistent with some of Ms Royan's evidence. However, when she was asked to return to those matters, she became somewhat more specific, suggesting that Ms Phyllis Lea had been nominated and that Ms Powell spoke about that proposed nomination, with the result that Ms Lea was not, in the end, nominated. 12 I am inclined to think that Ms Gooda's evidence may, to some extent, have been influenced by awareness of the issues which are before me for consideration, and that her later evidence was prompted by a desire, conscious or sub-conscious, to advance a particular cause. I see no other basis for the change in her evidence. I do not mean to suggest that anybody has been in any sense deliberately dishonest in what has happened. Ms Gooda said that she was not able to hear very well during much of the proceedings and frankly conceded that her knowledge of what had actually been said was quite limited. 13 As I have said, I am inclined to think that there was some discussion about balancing the representation of apical ancestor groups, but I do not accept that Ms Powell became involved in the nomination process. In this regard, I prefer the evidence of Ms Royan to that of Mr Lea and Ms Gooda. In the circumstances, I am satisfied that there was no substantial irregularity in connection with the conduct of the meeting insofar as concerns nominations. 14 I turn to the other question, which is whether or not the meeting should be invalidated by virtue of the failure to have separate meetings of the claim group as previously constituted, and as it is proposed that it be constituted. In considering that matter I am, in effect, reviewing the registrar's decision to allow the amendment. In the end, the evidence discloses that of the 146 people attending the meeting, 90 were descendants of Wonga Pope and therefore undisputed members of the original claim group. From the point of view of those propounding the resolution, the worst case would be that all those who did not vote were descendants of Wonga Pope. Thirty-one people attending the meeting did not vote. I analyze the vote in the following way: · Of the 146 people at the meeting, 115 voted, showing that 31 present did not vote. · There were 90 descendants of Wonga Pope at the meeting. They were members of the original claim group. · Assuming that all 31 abstentions were her descendants, it would mean that there were at least 59 valid votes at the meeting. · Of those, at least 55 were cast for the motion and four against. · At worst the resolution was passed by 55 valid votes to four. 15 In those circumstances I propose to make an order in accordance with para 1 of the amended notice of motion. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 15 October 2009 Counsel for the Applicant: Mr P Richards Solicitor for the Applicant: Queensland South Native Title Services Counsel for the Applicant: Mr T Lea appeared in person Solicitor for the State of Queensland: Ms S Cooper of Crown Law Solicitor for Banana Shire Council, North Burnett Regional Council and QLACCA: Mr S Sivarajah of MacDonnells Law Date of Hearing: 10 August 2009 Date of Judgment: 10 August 2009