QGC Pty Limited v Bygrave [2010] FCA 659

FEDERAL COURT OF AUSTRALIA

QGC Pty Limited v Bygrave [2010] FCA 659 Citation: QGC Pty Limited v Bygrave [2010] FCA 659

Parties: QGC PTY LIMITED ACN 089 642 553 v LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR and RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON, RICHARD DOYLE AND MADONNA BARNES ON BEHALF OF THE IMAN PEOPLE #2

File number: QUD 147 of 2010

Judge: REEVES J

Date of judgment: 23 June 2010

Catchwords: PRACTICE AND PROCEDURE – application of Native Title Representative Body to be made a party to proceedings – consideration of whether the Representative Body has a sufficient interest in the decision the subject of the proceedings and whether the Court should exercise its discretion to allow it to be made a party – Representative Body found to have a sufficient interest in the decision as it will affect the number and diversity of the native title holders it is to represent and will affect how is discharges its functions under the Native Title Act 1993 (Cth) – this interest is direct and demonstrable and goes beyond a mere emotional or intellectual concern PRACTICE AND PROCEDURE – "solicitor on the record" described as the Principal Legal Officer of the Representative Body – a party does not comply with the relevant Federal Court Rule by identifying his or her solicitor by a job title – "solicitor on the record" has important duties to the Court and his or her role is critical to the Court's ability to ensure that cases are managed efficiently, promptly and inexpensively PRACTICE AND PROCEDURE – consideration of whether a conflict of interest may arise if Representative Body made a party to the proceedings – Representative Body seeking to advance a construction of a section of the Native Title Act 1993 (Cth) which, if accepted, could be adverse to the interests of a group of native title claimants that a solicitor engaged by the Representative Body is representing in other proceedings – a solicitor acting for a client has among other fiduciary obligations to that client a duty of undivided loyalty – duty includes a proscription against a solicitor at the same time acting both for and against the client in the same proceedings and in some cases in related matters – duty must be manifestly and undoubtedly discharged – solicitors should not be seen to readily "change sides" – however there must be an actual conflict between duties before a solicitor is placed in a position of conflict – duty imposes only proscriptive or negative duties – a fiduciary must not place him or herself in a position where there is or may be a conflict between duties owed and he or she must not profit from the relationship – Held that no situation could be identified where the duties of the solicitor on the record were in actual conflict – two sets of proceedings not sufficiently related