FEDERAL COURT OF AUSTRALIA Taylor v Fortescue Metals Group Ltd [2012] FCA 52 Citation: Taylor v Fortescue Metals Group Ltd [2012] FCA 52 Appeal from: Fortescue Metals Group Ltd/FMG North Pilbara Pty Ltd/Western Australia/Johnson Taylor and Others on behalf of Njamal [2011] NNTTA 66 Parties: JOHNSON TAYLOR, RODNEY MONAGHAN, MAURICE COPPIN, ALICE MITCHELL, L.W. (NAME WITHHELD FOR CULTURAL REASONS), KEVIN ALLEN, TONY TAYLOR, WILLIE JUMBO, AND JEAN WALKER ON BEHALF OF THE NJAMAL PEOPLE v FORTESCUE METALS GROUP LTD, THE STATE OF WESTERN AUSTRALIA and FMG NORTH PILBARA PTY LTD File number: WAD 151 of 2011 Judge: SIOPIS J Date of judgment: 6 February 2012 Catchwords: NATIVE TITLE – future act – right to negotiate – native title party objected to negotiation party using a former employee of a representative body as a solicitor during the course of negotiations – native title party contended that solicitor disqualified on common law grounds from acting for negotiation party – negotiation party took advice of independent counsel in respect of native title party's objection – counsel advised that solicitor was not disqualified – whether negotiation party did not negotiate in good faith by continuing to use solicitor – whether notice of appeal under s 169(1) of the Native Title Act 1993 (Cth) disclosed a question of law. Legislation: Native Title Act 1993 (Cth) ss 29, 31(1), 35, 36(2), 38, 155, 169(1), 169(6), s 169(7) Administrative Appeals Tribunal Act 1975 (Cth) s 44 Cases cited: Holborow v Macdonald Rudder [2002] WASC 265 Parker v Western Australia (2008) 167 FCR 340 Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52 FMG Pilbara Pty Ltd v Cox (2009) FCR 141 Ibarcena v Secretary, Department of Family and Community Services [2003] FCA 1354 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Date of hearing: 29 August 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 97 Counsel for the Applicant: Mr MT Ritter SC Solicitor for the Applicant: Yamatji Marlpa Aboriginal Corporation Counsel for the First and Third Respondents: Mr MD Howard SC Solicitor for the First and Third Respondents: Green Legal Counsel for the Second Respondent: Mr CS Bydder Solicitor for the Second Respondent: Acting State Solicitor for Western Australia IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 151 of 2011 ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL BETWEEN: JOHNSON TAYLOR, RODNEY MONAGHAN, MAURICE COPPIN, ALICE MITCHELL, L.W. (NAME WITHHELD FOR CULTURAL REASONS), KEVIN ALLEN, TONY TAYLOR, WILLIE JUMBO, AND JEAN WALKER ON BEHALF OF THE NJAMAL PEOPLE Applicant AND: FORTESCUE METALS GROUP LTD First Respondent THE STATE OF WESTERN AUSTRALIA Second Respondent FMG NORTH PILBARA PTY LTD Third Respondent JUDGE: SIOPIS J DATE OF ORDER: 6 february 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 151 of 2011 ON APPEAL FROM THE NATIONAL NATIVE TITLE TRIBUNAL BETWEEN: JOHNSON TAYLOR, RODNEY MONAGHAN, MAURICE COPPIN, ALICE MITCHELL, L.W. (NAME WITHHELD FOR CULTURAL REASONS), KEVIN ALLEN, TONY TAYLOR, WILLIE JUMBO, AND JEAN WALKER ON BEHALF OF THE NJAMAL PEOPLE Applicant AND: FORTESCUE METALS GROUP LTD First Respondent THE STATE OF WESTERN AUSTRALIA Second Respondent FMG NORTH PILBARA PTY LTD Third Respondent JUDGE: SIOPIS J DATE: 6 february 2012 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant is the applicant on a native title determination claim brought on behalf of the Njamal People. The land over which the native title determination claim is made is located in the Pilbara region of Western Australia. In 2009, the first and third respondents applied for five mining leases in respect of land which was included within the area of land, the subject of the applicant's claim. The first and third respondents are related companies within the Fortescue Metals Group of companies. I will refer to these companies collectively as Fortescue. In 2009, the second respondent, the State of Western Australia, gave notice under the Native Title Act 1993 (Cth), of future acts in relation to that land, namely, the intention to grant the mining leases applied for by Fortescue. 2 In 2010, the applicant conducted negotiations with the respondents pursuant to the applicant's right to negotiate under the Native Title Act. 3 The negotiations did not lead to the making of any agreement. 4 On 30 June 2010, Fortescue applied to the National Native Title Tribunal (the Tribunal) for the Tribunal to make a future act determination under s 38 of the Native Title Act. The applicant (who I will refer to as the "native title party") claimed, before the Tribunal, that Fortescue had not complied with its obligation to negotiate in good faith because it had used, as a solicitor, in the negotiations, a former employee of the Yamatji Marlpa Aboriginal Corporation (YMAC). YMAC is a representative body under the Native Title Act. 5 The Tribunal rejected that contention. 6 The native title party appeals to this Court under s 169(1) of the Native Title Act against the Tribunal's decision. background 7 YMAC has, at all material times, assisted the native title party in matters relating to the making of its native title determination claim. YMAC, also, assists other native title claim groups in the Pilbara region in relation to matters affecting their respective native title determination claims. 8 An aspect of the services which YMAC provides is the giving of advice and assistance in relation to negotiations conducted between mining companies and native title claim groups, pursuant to the claim group's right to negotiate under Subdiv P of Div 3 of the Native Title Act. 9 At all material times, YMAC employed legal practitioners to assist it in fulfilling its statutory function as a representative body. Between November 2005 and September 2008, Mr Sukhpal Singh, a solicitor, was employed by YMAC as a senior legal officer and, later, as a deputy principal legal officer. During the period of his employment, Mr Singh assisted a number of native title claim groups, for whom YMAC acted as the representative body, in relation to their respective native title determination claims. This assistance included, in some cases, acting in relation to the conduct of negotiations between a native title claim group and one or more mining companies active in the Pilbara. BHP Billiton Iron Ore Ltd (BHP BIO) was, at all material times, a mining company active in the Pilbara, as was Fortescue. 10 Mr Singh left the employment of YMAC on 8 September 2008 and commenced employment with Fortescue on 9 September 2008. 11 On Mr Singh's departure from YMAC, Mr Michael Meegan, principal legal officer of YMAC, wrote to Fortescue contending that Mr Singh's capacity to assist Fortescue in its negotiations with native title claim groups in the Pilbara, would be limited because Mr Singh was affected by a potential conflict of duty and interest, arising from his previous employment with YMAC. 12 On 11 September 2008, Mr Peter Huston, a senior in-house lawyer with Fortescue, responded to Mr Meegan, stating that Fortescue accepted that Mr Singh had a duty of confidentiality to certain native title claim groups for whom Mr Singh had acted during his employment with YMAC. Mr Huston specified three of those groups, in respect of which Mr Singh may, in the course of his duties, have been exposed to confidential information; and undertook not to involve Mr Singh in any dealings relating to those groups. The Njamal People was not one of the native title claim groups specified. Mr Huston stated: Fortescue does not propose to utilise Mr Singh in circumstances relating to…native title claim groups where there may be an actual or possible risk that Mr Singh may disclose or make use of confidential information which he may have acquired as a result of his employment with the PNTS. 13 The reference in the letter to PNTS is a reference to the Pilbara Native Title Service, and is nomenclature which appears to be used interchangeably with YMAC. 14 By a letter dated 6 October 2008, Mr Meegan wrote to Mr Huston stating that it was his view that Mr Singh had acted for seven additional native title claim groups, including the Njamal People, in negotiations between them and BHP BIO. Mr Meegan went on to state that, consequently, Mr Singh was precluded from acting in any Fortescue matter involving any of those native title claim groups. 15 Fortescue then briefed a barrister at the Western Australian Bar to give advice in relation to allegations made in the letter. On 11 November 2008, Mr Huston wrote to Mr Meegan as follows: We have now taken advice from Counsel on the issue in question regarding Mr Singh's employment with Fortescue Metals Group Ltd. Accordingly, we advise that Fortescue intends to continue to engage Mr Singh to act as a representative of Fortescue, and will do so in a manner which will ensure adherence to all legal and professional obligations. 16 By a letter to Mr Huston dated 22 December 2008, Mr Meegan sought confirmation, within 14 days, from Fortescue, that Mr Singh would not act for Fortescue in respect of any matter involving the native title claim groups (which included the native title party) referred to in his letter of 6 October 2008, and reserving YMAC's rights. Mr Meegan stated that a professional conduct complaint against Mr Singh, would be made if the confirmation requested was not forthcoming. No such confirmation was given by Fortescue. 17 YMAC did not make the professional conduct complaint about Mr Singh which it had threatened. Further, neither YMAC, nor the native title party, took any other steps regarding Mr Singh's position in response to the failure of Fortescue to provide the confirmation demanded by Mr Meegan's letter. 18 On 15 July 2009, the State of Western Australia gave notice under s 29 of the Native Title Act of future acts, namely, the grant of five mining leases under the Mining Act 1978 (WA) to Fortescue. The areas covered by the proposed leases are located west of Marble Bar in the Shire of East Pilbara and are entirely overlapped by the area the subject of the native title party's native title determination claim. 19 Section 31(1)(b) of the Native Title Act provides that the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each native title claim group to the doing of the future act. 20 On 12 January 2010, Mr Singh, on behalf of Fortescue, sent a letter to YMAC seeking a response to a draft agreement relating to the grant of the mining leases, which had been previously sent by Fortescue to YMAC. 21 On 19 January 2010, Mr Rodney Nichole, a deputy principal legal officer at YMAC, sent an email to Mr Singh inviting Fortescue to attend a meeting of the Njamal Working Group in connection with Fortescue's proposed mining activities in the Pilbara; and to commence good faith negotiations. Mr Singh continued to correspond by letter and email with Mr Nichole until 1 February 2010. 22 On 2 February 2010, Mr Rainer Mathews, a lawyer employed by YMAC, sent an email to Mr Singh in which Mr Mathews alleged that Mr Singh, by reason of his previous employment with YMAC, had a "conflict of interest" and should "preclude" himself from acting for Fortescue in the negotiations with the native title party. The letter concluded by stating that YMAC looked forward to the meeting with representatives of Fortescue, other than Mr Singh, for the purpose of progressing negotiations. This was the first occasion since the correspondence in 2008 referred to above, that the issue of Mr Singh's capacity to provide legal services to Fortescue in relation to native title negotiations, was raised by YMAC. 23 On 2 February 2010, Mr Singh responded to the email by denying the allegations made, stating that it was a serious matter to make the allegations made and advising Mr Mathews that YMAC was "at liberty to seek the appropriate legal remedy". No such legal remedy was sought by YMAC. 24 Thereafter, a meeting between representatives of Fortescue and the native title party for the purpose of carrying on further negotiations, was arranged to be held on 5 March 2010. 25 On 17 February 2010, Mr Singh sent an email to YMAC. The email stated that if the Njamal People were not prepared to meet with Fortescue whilst he was Fortescue's legal representative, this fact should be communicated to Fortescue in advance of the meeting, in which case, Fortescue would consider its position. The email went on to say that if the Njamal People only communicated their objection to Mr Singh's attendance at the time of the meeting, then Fortescue would withdraw its attendance at the meeting in full, and Fortescue would not accept any costs of the meeting. The email, also, stated that Fortescue would recover any payments made to YMAC in relation to that meeting. Further, said the email, if instructions could not be obtained prior to the meeting, then the date of the meeting should be changed. 26 On 17 February 2010, Mr Blair McGlew, an executive officer of Fortescue, also, sent an email to Mr Mathews stating that Mr Singh had Mr McGlew's full support and that Fortescue would not accept liability for any costs if the proposed meeting did not proceed on 5 March 2010. 27 On 5 March 2010, the meeting between representatives of the native title party and Fortescue's negotiating team which included Mr Singh, took place, as scheduled. At the meeting, representatives of the native title party expressed their dissatisfaction with Mr Singh's continued involvement in the negotiations as part of the Fortescue negotiating team. The representatives of the native title party present at the meeting, said they reserved the native title party's rights in relation to Mr Singh's presence at the meeting and involvement in the negotiations. Thereafter, the meeting proceeded. 28 Notwithstanding the native title party's objection, Fortescue continued to utilise the services of Mr Singh, in relation to the negotiations. 29 By 30 June 2010, the parties had not reached an agreement. 30 On 30 June 2010, Fortescue made applications pursuant to s 35 of the Native Title Act for future act determinations to be made by the Tribunal under s 38 of the Native Title Act. The applications were made on the basis that the negotiation parties had not been able to reach an agreement within six months of the government party notifying its intention to carry out the future acts. 31 Section 36(2) of the Native Title Act provides that: If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b), the arbitral body must not make the determination on the application. 32 In response to the s 35 applications made by Fortescue, the native title party contended before the Tribunal that Fortescue had, by reason of having used the services of Mr Singh in the negotiations, not complied with its obligation to negotiate in good faith, and that, consequently, the Tribunal did not have the power to make the future act determinations sought by Fortescue. 33 On 15 April 2011, the Tribunal, having conducted an inquiry into the native title party's contention that Fortescue had not negotiated in good faith, rejected the native title party's contention and determined that the Tribunal had the power to make the future act determinations. 34 On 12 May 2011, the native title party filed in this Court, an appeal under s 169(1) of the Native Title Act against the decision of the Tribunal. proceeding before the tribunal 35 On 26 July 2010, the Tribunal made directions that the parties provide contentions and evidence in relation to the question of whether Fortescue had negotiated in good faith. 36 The native title party filed affidavits from Ms Doris Eaton, Mr Tony Taylor and Mr Ian Taylor – each of whom is a member of the applicant on the native title claim brought on behalf of the Njamal People. The native title party, also, filed an affidavit from another solicitor in the employ of YMAC, Ms Maimbo Chilala, and an affidavit from Mr Mathews. Fortescue filed affidavits from Mr Singh, Mr Peter Woodman, Mr Dennis Keith Jacobs and Ms Alexa Kate Morcombe. 37 Each party filed detailed written submissions. The native title party also filed a number of documents attached to its submissions in reply. On 8 November 2010, the Tribunal made an interim nondisclosure order pursuant to s 155 of the Native Title Act in respect to some of these documents. 38 With the consent of the parties the Tribunal considered the evidence and submissions on the papers. There was, accordingly, no cross-examination on the affidavits. 39 Before the Tribunal, the native title party appeared to rely upon two contentions to support its claim that Fortescue had not negotiated in good faith. 40 First, it was contended that Mr Singh was disqualified on common law grounds from acting for Fortescue in the negotiations, and Fortescue had failed to negotiate in good faith because it had, notwithstanding the native title party's objection, used the services of Mr Singh in the negotiations. This circumstance would, said the native title party, amount to the failure by Fortescue to act reasonably and, consequently, a failure to negotiate in good faith. 41 More particularly, the native title party contended that, by providing advice and assistance to Fortescue during the negotiations, Mr Singh acted in breach of his duty of loyalty which he owed to the Njamal People not to act against their interests in the same matter in respect of which he had acted on their behalf, or in a closely related matter. Further, said the native title party, Mr Singh, had, in his capacity as a solicitor employed by YMAC, obtained information confidential to the Njamal People, and Mr Singh's possession of that confidential information, whilst acting as a solicitor for Fortescue, prejudiced the Njamal Peoples' ability to engage in negotiations with Fortescue on a fair and reasonable footing. The native title party also contended that the general remedial purpose of the Native Title Act informed the scope of the duty owed by a solicitor employed by a representative body, to his or her native title claim group client, so as to provide greater protection to a native title claim group client, than otherwise provided by the common law to a client of a legal practitioner. 42 Secondly, the native title party contended that Fortescue had failed to negotiate in good faith because it failed to act reasonably in the negotiations by, notwithstanding the native title party's objection, retaining Mr Singh as part of its negotiating team in circumstances where Fortescue knew that Mr Singh possessed confidential information which prejudiced the native title party from engaging in fair negotiations, and knew that Mr Singh was acting in breach of his common law duty of loyalty to the native title party. 43 The distinction between these two contentions appears to be that the first contention does not depend upon Fortescue having had knowledge of Mr Singh's disqualifying condition. In other words, it appears that, by its first contention, the native title party contended the crucial factor in determining whether Fortescue had negotiated in good faith, was whether Mr Singh had been disqualified on common law grounds, from acting as a solicitor for Fortescue in relation to the negotiations, rather than Fortescue's conduct in response to the native title party's allegation that Mr Singh was so disqualified. 44 Although it does not appear that the Tribunal expressly rejected the native title party's first contention, it also appears that the Tribunal did not wholly accept that contention. This is apparent from the Tribunal's reasons at [29], where it stated: Before we proceed to examine the contentions of the grantee party, and the evidence submitted by both parties to support their contentions, it is important to remember that the allegation made by the native title party is that the grantee party, ie FMG, failed to negotiate in good faith on this matter, not Mr Singh. My focus in the examination of the evidence will be on the behaviour of FMG, the grantee party. There is a question, which I discuss further below, as to whether a finding that Mr Singh did act in breach of his duty to his former client, the native title party would be, of itself, sufficient to found a finding of a failure to negotiate in good faith against the grantee party. 45 However, notwithstanding this observation, the Tribunal then proceeded to examine in some considerable detail the evidence with a view to determining, by reference to common law authorities, whether the native title party had demonstrated that Mr Singh, by reason of the tasks performed, and information acquired, as a solicitor employed by YMAC, was disqualified from acting as a solicitor for Fortescue in relation to the negotiations. Having engaged in that exercise, the Tribunal then, at [72] of the reasons, identified a number of issues that it said were relevant to determining whether Fortescue had failed to negotiate in good faith. 46 Among the issues identified by the Tribunal, were issues going to whether the native title party had demonstrated that Mr Singh, in acting for Fortescue, had acted in breach of any common law duty of loyalty or confidentiality to the Njamal People, and, also, the following issue: [I]f it is the case that Mr Singh had a conflict of duty which required him not to act for the grantee party in relation to negotiations with the native title party, did that amount to a failure to negotiate in good faith by the grantee party in these proceedings? 47 However, the Tribunal did not go on to answer this question. This is because the Tribunal concluded that the native title party had, on the evidence, failed to establish that Mr Singh's involvement with the Njamal People, whilst employed as a solicitor by YMAC, was sufficient to give rise to a duty of loyalty to the Njamal People, such as would have precluded him from acting as a solicitor for Fortescue in the negotiations, nor that Mr Singh was possessed of any information confidential to the Njamal People, as would preclude him from acting as a solicitor for Fortescue in the negotiations. 48 The Tribunal concluded at [75] of the reasons: [O]n the basis of the evidence that I have been provided with, in relation to Mr Singh's previous involvement with Njamal, I cannot conclude that the grantee party has acted unreasonably by involving Mr Singh in the negotiations. On that basis, Mr Singh's involvement cannot be said to amount to a failure of the grantee party to have negotiated in good faith as required by the Act. 49 The factual findings made by the Tribunal upon which its conclusion is based, relate only to the nature and extent of Mr Singh's previous involvement with the Njamal People's claim in his capacity as a solicitor employed by YMAC, and the information he acquired in that capacity. It is on the basis of these findings that the Tribunal stated that it was unable to conclude that Fortescue had acted unreasonably by involving Mr Singh in the negotiations, and, therefore, was unable to conclude that Fortescue had failed to act in good faith. 50 Those factual findings made by the Tribunal were made after a detailed review by the Tribunal of the affidavit and documentary evidence. However, contrary to the Tribunal's observations (set out at [44] above) that it intended to examine the evidence by reference to "the behaviour" of Fortescue, there is no assessment in the Tribunal's reasons of the conduct of Fortescue in relation to the manner in which it reacted to the native title party's objections to Fortescue using Mr Singh as a solicitor in the negotiations. In particular, there is no analysis as to the relevance of the fact that after YMAC had initially raised objections to Mr Singh being involved in relation to matters affecting, amongst others, the Njamal People, Fortescue took the advice of independent counsel, who advised that Mr Singh was not precluded from acting as a solicitor for Fortescue in relation to, amongst others, the Njamal People, and the fact that the native title party was advised of the tenor of that advice, and took no steps in response thereto, to obtain an independent opinion or independent adjudication on the difference in views. 51 The important findings which the Tribunal made, and on which it relied for its conclusion that the native title party had failed to establish that Fortescue had not negotiated in good faith, were as follows. 52 First, the Tribunal found that the native title party had not established that Mr Singh had, whilst employed by YMAC, in any real sense, acted as a solicitor, for the Njamal People, other than in relation to negotiations with BHP BIO. At [55] of the reasons, the Tribunal states: It is my conclusion that, while Mr Singh acted for the native title party in relation to BHPBIO matters, he did not act for them in any other capacity. He may have supervised Mr Mathews in a formal sense, but I accept the fact, based on the documentary record, that there was no direct supervision carried out over Mr Mathews and, indeed, Mr Mathews preferred the supervision of the other alternatives that were available to him, in particular Mr Nichol [sic] and Mr Rind. 53 The Tribunal specifically rejected the native title party's contention that Mr Singh had acted as the solicitor for the Njamal People in the negotiations between Fortescue and the native title party in relation to the Glacier Valley project. In making this factual finding, the Tribunal relied on the evidence of Mr Jacobs, a former senior future acts officer employed by YMAC, to the effect that Mr Singh was not involved in those negotiations. The Tribunal found that, while Mr Singh appeared to be formally responsible at a supervisory level for the negotiations in relation to the Glacier Valley project, there was no evidence to suggest that Mr Singh had any "significant or substantive involvement at that time". 54 The Tribunal went on to find that, in any event, it had not been provided with any evidence that the negotiations in respect of the Glacier Valley project were closely related to the negotiations in issue. 55 As to Mr Singh's representation of the Njamal People in relation to the BHP BIO negotiations, the Tribunal found that this representation had occurred in the context of Mr Singh acting on behalf of the Njamal People and other persons in relation to Pilbara-wide negotiations with BHP BIO. The Tribunal found that there was no evidence that Mr Singh had received advice or instructions from the Njamal People in the course of that representation. 56 The Tribunal also found that the native title party had failed to show that Mr Singh was possessed of any relevant information confidential to the Njamal People. At [62] of the reasons, the Tribunal stated: In my opinion…having evaluated the evidence of the native title party, including that contained in the documents provided, I am unable to identify, with precision or otherwise, what confidential materials the native title party says Mr Singh has in his possession and, more particularly, what information there was a risk he would disclose to the grantee party. 57 The Tribunal, also, stated at [73] of the reasons as follows: In my view, the native title party has not established on the evidence that Mr Singh while employed by YMAC had provided advice, received instruction, or received confidential or privileged information other than possibly in relation to the negotiations between BHPBIO. In relation to that matter, there is no evidence that has been provided by the native title party as to the nature of the material provided, which may be privileged or confidential, which Mr Singh received in relation to those negotiations. Neither is there any evidence of any advice or instructions he received from Njamal in the course of that representation. His attendance at one (or possibly two) meetings on behalf of the native title party in relation to BHPBIO is consistent with his evidence, supported by the evidence of Mr Jacobs, that he was responsible for those negotiations across the Pilbara. The native title party has continued to assert that it is "obvious" that Mr Singh had a conflict of duty in that he was previously the native title party's lawyer and was in possession of confidential and privileged information. The repeated recitation of that assertion is no substitute for the provision of evidence to that effect. I accept that Mr Singh, during the course of employment with PNTS may have been privy to, in the sense that he was copied into communications relating, information which was the privileged and confidential information of the native title party. He has no recollection of receiving such information, or of its nature. If there had been information directed to Mr Singh, to which he provided some response, then in my view, not withstanding his lack of recollection, there may have been grounds for asserting that he did have a duty to the native title party. On any reading of the circumstances the involvement of Mr Singh with the native title party is not of the same category as those referred to in the other "getting to know you" cases, which created a duty of loyalty. 58 In addition, the Tribunal, also, rejected the native title party's contention that the general remedial purpose of the Native Title Act meant that native title claim group clients were "deserving of greater protection" than the protection otherwise provided to clients of legal practitioners by the common law. The Tribunal referred to the case of Holborow v Macdonald Rudder [2002] WASC 265, a case where a native title party sought to restrain the conduct of a legal practitioner who had previously acted for that party, and observed that there was nothing said in that case which supported the proposition advanced by the native title party. the appeal 59 This appeal is brought under s 169(1) of the Native Title Act. That section of the Native Title Act provides that: A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding. 60 In its re-amended notice of appeal, the native title party identified four questions of law. However, the native title party abandoned the third of the questions. 61 The following were the remaining questions which formed the basis of the native title party's appeal: 1 Whether the Tribunal erred in law and misconstrued the requirement to negotiate in good faith under section 31(1) of the NTA by failing to find that the First and Third Respondents, in using Mr Singh as a negotiator in relation to the grant of the mining leases, had failed to so negotiate? 2 Whether the Tribunal erred in law and misconstrued the requirement to negotiate in good faith under section 31(1) of the NTA by failing to find that the First and Third Respondents, in not excluding Mr Singh from its negotiating team in relation to the grant of the mining leases, following a not unreasonable request by the Njamal People to do so, had failed to so negotiate? 3 … 4 Whether the Tribunal erred in law in failing to take into account the following, as being confidential and/or privileged information and, as such, relevant to deciding the issue before it: (a) instructions previously provided by the Applicant to its lawyers in relation to its earlier negotiations with the First and Third Respondents; (b) strategies considered and employed by the Applicant to maximise its bargaining leverage in its earlier negotiations with the First and Third Respondents; (c) information about the operation of the Applicant's charitable trust, including sensitive information about distributions; (d) the terms of the Applicant's confidential native title agreements with other mining companies; (e) the content of confidential negotiations that the Applicant has had with other mining companies; (f) the Applicant's views about the likelihood of success of the Applicant's native title claim; and (g) information about the day-to-day conduct of the Applicant's affairs. 62 The native title party's re-amended notice of appeal, also, contained four grounds of appeal. Each ground of appeal restated in an assertive form, rather than an interrogatory form, the statements relied upon as comprising the corresponding questions of law. In addition, there were attached to the first ground of appeal, a number of statements described as particulars. The particulars are as follows: 1. The Tribunal erred in law and misconstrued the requirement to negotiate in good faith under section 31(1) of the NTA in that it failed to find that the First and Third Respondents, in using Mr Singh as a negotiator in relation to the grant of the mining leases, had failed to so negotiate. Particulars (a) Mr Singh was designated and/or given employment duties as and worked as an assistant claim lawyer, future act lawyer and supervising lawyer for the Njamal native title claims when employed by the Yamatji Marlpa Aboriginal Corporation. He was also the Deputy Principal Legal Officer at the Yamatji Marlpa Aboriginal Corporation. In that capacity, Mr Singh was reported to, given access to and copied into legal and tactical advice and confidential discussions concerning future acts and claim work for the Njamal People. He also had access to all legal files for the Njamal People. (b) Mr Singh was designated as, was given employment duties and carried out work as a lawyer for the Njamal People in future act negotiations concerning, inter alia, BHP Billiton Iron Ore, Wedgetail Mining Ltd and Moly Mines Ltd and was privy to existing confidential agreements and agreements being negotiated and to expert and consultant advice obtained for the Njamal People and others about such agreements. He also provided legal and strategic advice to the Njamal People's working group about such agreements. (c) Mr Singh was designated as, was given employment duties and carried out work as a lawyer for the Njamal People and other native title claim groups represented by the Yamatji Marlpa Aboriginal Corporation in relation to projects involving the First and Third Respondents and associated companies, including as lawyer supervising the Njamal lawyer in relation to the Glacier Valley project which included or is related to the mining leases. (d) Mr Singh attended Yamatji Marlpa Aboriginal Corporation Pilbara Planning Meetings at which confidential and strategic discussions took place about the claims and major future acts in the Pilbara, including those concerning the Njamal People. (e) Mr Singh in the capacities set out above gained and had access to information about the Njamal People's attitudes to future act agreements, tactics and strategies for maximising their bargaining leverage in future act negotiations, instructions given by the Njamal People in relation to future act mining tenements, settlements and compromises and their decision-making processes. (f) Mr Singh had knowledge of and access to the internal workings of the Njamal People's charitable trust structures and issues relating to this. (g) The Tribunal wrongly took into account the lack of direct evidence that Mr Singh had received confidential information when this could be readily inferred. (h) The Tribunal erred in its assessment of whether Mr Singh had "acted for" or received instructions from the Njamal People. 63 The case of Parker v Western Australia (2008) 167 FCR 340 (Parker), was concerned with an appeal on a question of law under s 169(1) of the Native Title Act. At [23]-[27], Branson J made the following observations as to the nature of such an appeal: [23] An appeal pursuant to s 24 of the Federal Court Act is an appeal by way of rehearing (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 esp at [35]-[47]). For this reason it is critical to identify what was the subject matter of the hearing before the primary judge. [24] Section 169 of the Act relevantly provides: (1) A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding. … (4) An appeal is to be instituted: … (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976. [25] The language of s 169(1) indicates that the nature of the right of appeal created by the subsection is the same as the nature of the right of appeal created by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). That subsection provides: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. [26] It is now well established in respect of an appeal under s 44(1) of the AAT Act that, as Gummow J stated in TNT Skypak International (Australia) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1070; 82 ALR 175 at 178: The existence of a question of law is...not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself. See also, for example, Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at [17]-[18] per Branson and Stone JJ; Comcare v Etheridge (2006) 149 FCR 522 per Branson J with whom Spender and Nicholson JJ agreed at [13]; and Price Street Professional Centre Pty Ltd v Federal Commissioner of Taxation (2007) 67 ATR 544 at [35] per Edmonds J. The subject matter of an appeal under s 169(1) is also, I conclude, the question or questions of law on which the appeal is brought. [27] An appeal "on a question of law" is of a different character from an appeal under s 24 of the Federal Court Act and also from an appeal "in relation to" a question of law or an appeal "including" a question of law. Subject to any specific legislative provision authorising the Court to make factual findings, where the subject matter of the appeal is a question or questions of law the Court is not authorised to determine any matter of fact for itself (cf s 44(7) of the AAT Act). The nature of the statutory right of appeal indicates a legislative intention that the final arbiter of factual disputes should be the primary decision making tribunal or body. 64 Further, at [31], Branson J in Parker went on to observe: The supervisory role of the Court in a proceeding of the kind heard and determined by the primary judge has been limited by the legislature in such a way as to make an identified question or questions of law the subject matter of the proceeding…In this circumstance it will not ordinarily be nitpicking for the applicant to be required to specify the subject matter of the proceeding in a way which reflects the nature of the appeal in question and makes clear to all concerned that the Court is not being invited to evaluate for itself the evidence before the primary decision-maker. Moreover, should an appeal to the Full Court be instituted from the judgment of the Court at first instance, the smooth hearing of that appeal will almost certainly be assisted by a common understanding in all concerned as to the subject matter of the first instance proceeding. 65 In my view, the observations of Branson J are germane to the issues which arise on this appeal. 66 Fortescue's primary submission was that the appeal should be dismissed because the native title party's re-amended notice of appeal did not disclose any question of law upon which the Court's jurisdiction is founded. 67 As mentioned, the native title party advised that it did not intend to proceed with question 3 in its re-amended notice of appeal. Accordingly, I will consider whether the three other questions which are set out in the re-amended notice of appeal formulate questions of law which enliven the jurisdiction of the Court under s 169(1) of the Native Title Act. Question 1 68 In my view, question 1 of the re-amended notice of appeal does not disclose a question of law. 69 The query raised by the question as formulated which is recognisable as potentially giving rise to a question of law, arises from the complaint that the Tribunal misconstrued s 31(1) of the Native Title Act. However, the question as formulated, does not disclose the question relating to the construction of s 31(1) of the Native Title Act which the Court is required to answer. 70 The Tribunal addressed the construction of s 31(1) of the Native Title Act in [8], [9], [70] and [71] of the reasons. In essence, at [8] of the reasons, the Tribunal stated that in construing s 31(1) of the Native Title Act, it would apply the principles as set out in Gulliver Productions Pty Ltd v Western Desert Lands Aboriginal Corp (2005) 196 FLR 52 (Gulliver), unless in conflict with the Full Court decision in FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 (Cox). 71 At [70] of the reasons, the Tribunal referred to a number of criteria known as the "Njamal indicia" (which are set out in Gulliver), for the purpose of determining whether Fortescue had not negotiated in good faith. One of the criteria referred to, was whether a negotiating party had failed to do what a reasonable person would do in the circumstances. 72 Further, at [71] of the reasons, the Tribunal adopted the following observations of the Full Court in Cox: It has been repeatedly recognised that the requirement for good faith is directed to the quality of a party's conduct. It is to be assessed by reference to what a party has done or failed to do in the course of negotiations and is directed to and is concerned with a party's state of mind as manifested by its conduct in the negotiations. 73 The Tribunal then went on to say that the Full Court in Cox, further concluded that "in that particular matter where the negotiations had not passed an embryonic stage, an absence of good faith could only be established by a reference to 'deliberate delay, sharp practice, misleading negotiation or other unsatisfactory or unconscionable conduct' ". 74 The question, as posed by the native title party in its re-amended notice of appeal, does not identify the respect in which the native title party takes issue with the construction of s 31(1) of the Native Title Act, adopted by the Tribunal. More specifically, the question does not identify an alternative construction in respect of which the native title party seeks the Court's adjudication. 75 The particulars which are attached to the corresponding first ground of appeal, do not assist in this respect. The first six paragraphs of the particulars comprise summaries of evidence led and contentions made by the native title party before the Tribunal. They do not reflect the factual findings made by the Tribunal. The seventh paragraph of the particulars takes issue with the failure of the Tribunal to draw inferences of fact from the evidence adduced by the native title party. The eighth paragraph appears to be a complaint about the failure of the Tribunal to make the factual findings for which the native title party contended at the hearing before the Tribunal. 76 None of the particulars casts any light on an alternative construction to that adopted by the Tribunal, for which the native title party contends, and which the Court is called upon to consider. Further, insofar as particular (g) complains of the failure of the Tribunal to draw inferences from the evidence, this is a complaint about the Tribunal's fact finding and does not give rise to a question of law. Likewise, particular (h) is a generalised complaint about the Tribunal's fact finding and does not identify a question of law. 77 For the foregoing reasons, therefore, I am of the view that question 1, as formulated by the native title party, does not formulate a question of law. 78 I do not accept the native title party's contention that question 1 formulated a question of law as to whether, on the evidence before the Tribunal, it was open to the Tribunal to make the factual findings that it made. The language of question 1, simply does not formulate a question to that effect. 79 In Ibarcena v Secretary, Department of Family and Community Services [2003] FCA 1354, Stone J observed, in relation to an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), that "the respondent and the Court need to be able to discern from the notice of appeal the question the Court is asked to answer". For the question posed by the native title party to be identified as a question of law as to whether it was open to the Tribunal, on the evidence before it, to make the factual findings that it did, the question would have needed to have been clearly formulated in those terms, and not, as in this case, in terms challenging the Tribunal's ultimate conclusion at a high level of generality, and invoking a complaint about the Tribunal's misconstruction of s 31(1) of the Native Title Act. 80 However, even if the question as posed by the native title party, was to be treated as being a question as to whether the factual findings made by the Tribunal were open on the evidence, in my view, the appeal would, in any event, have failed. In my view, the factual findings made by the Tribunal, were open to it on the evidence. The Tribunal closely analysed the affidavit evidence adduced by the native title party. The Tribunal, also, had close regard to the documentary evidence that the native title party presented. Thus, for example, at [49] of the reasons, the Tribunal examined and subjected to scrutiny, each of the documents upon which the native title party relied. The position, therefore, is that the Tribunal took into account the evidence which was adduced by the native title party, including the evidence in relation to the matters referred to in the particulars, as well as the evidence adduced by Fortescue, but, in the end, the Tribunal did not make the factual findings for which the native title party contended. The Tribunal gave detailed reasons for making the findings that it made. It cannot be said that the factual findings were not open to the Tribunal. Question 2 81 In my view, for the same reasons as apply in relation to question 1, the native title party has not in question 2 of its re-amended notice of appeal, formulated a question of law enlivening the jurisdiction of the Court under s 169(1) of the Native Title Act. 82 Question 2, as does question 1, refers to a misconstruction by the Tribunal of s 31(1) of the Native Title Act, but does not expose the basis of the native title party's complaint as to the construction by the Tribunal. Accordingly, there is no question before the Court as to the proper construction of that section which the Court is able to answer. Nor, for the reasons given in [79] above, does it raise any other identifiable question of law. 83 It follows that, in my view, question 2 does not raise a question of law within the meaning of s 169(1) of the Native Title Act, such as to enliven the jurisdiction of the Court. 84 Further, the same observations made in [80] above, apply in relation to this question as posed by the native title party. Question 4 85 The query raised by this question which is recognisable as potentially giving rise to a question of law, is whether the Tribunal failed to take into account relevant considerations. The failure by a decision-maker to take into account relevant considerations, is recognised as an error of law, and a question as to whether the Tribunal failed to take such considerations into account would give rise to a question of law. 86 There are two possible categories of relevant considerations nominated in question 4 as formulated by the native title party. The first possible relevant consideration is whether Mr Singh possessed disqualifying "confidential and/or privileged information". This consideration, said the native title party, in its formulation of the question, was "relevant to deciding the issue before" the Tribunal. The second possible category of relevant considerations nominated in the question are the factors listed in subparas (a)-(g) of the question as formulated. The subparagraphs contain a generalised outline of the nature of the evidence adduced, and contentions made by, the native title party before the Tribunal. 87 In the case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), the High Court observed that the considerations which a decision-maker was bound to take into account, would depend upon whether the relevant statute expressly or impliedly, prescribed those considerations as being relevant for the decision-maker to take into account in reaching his or her decision. 88 In my view, s 31(1) of the Native Title Act does not prescribe any specific considerations as mandatory considerations to be taken into account by the Tribunal in determining whether a party has negotiated in good faith. In the case of Cox, the Full Court at [19], stated that the words "negotiate in good faith" were to be given their natural and ordinary meaning in the context of the Native Title Act as a whole. Because of the wide range of circumstances which may give rise to an allegation of a failure to negotiate in good faith, the considerations to which the Tribunal will be called upon to have regard, will vary from case to case depending upon the circumstances of each case. 89 Accordingly, even if the question was to be characterised as a question of law as to whether the Tribunal failed to take into account a relevant consideration by failing to have regard to whether Mr Singh possessed disqualifying confidential information, or to the matters referred to in subparas (a)-(g) of the question, the answer to the question would be in the negative. This is because s 31(1) of the Native Title Act, does not, in my view, prescribe any of those considerations as relevant considerations in the Peko-Wallsend sense. I would add that the Tribunal did, in any event, have regard to those considerations in coming to its ultimate finding that the native title party had not demonstrated that Fortescue had not negotiated in good faith. 90 However, although the language of the question as formulated, appears to reflect a query as to whether the Tribunal failed to take into account relevant considerations, in my view, the true nature of the complaint implicit in the question as formulated, is an attack on the factual findings of the Tribunal, namely, that the native title party failed to show that Mr Singh was possessed of confidential or privileged information which disqualified him from acting as a solicitor for Fortescue. Insofar as the native title party purports to attack the factual findings of the Tribunal, the question as formulated does not, in my view, call upon the Court to answer a question of law. This is because the complaint implicit in the question, does no more than reflect disagreement with the finding of the Tribunal, and implicitly asks the Court to revisit that factual finding. As Branson J observed in Parker, the Court has no jurisdiction to embark upon such an exercise in the course of determining an appeal under s 169(1) of the Native Title Act. Further, for the reasons given at [78] above, applied mutatis mutandis, I do not accept the native title party's contention that the question as formulated, asks whether the factual finding made by the Tribunal on this issue was open on the evidence before the Tribunal. 91 In any event, even if the question was to be construed as raising the question as to whether the factual findings of the Tribunal on this issue were open to it, for the reasons I have already given, at [80] above, the appeal would have failed. 92 It follows that the appeal is dismissed. 93 However, I should observe that, in my respectful view, in seeking to determine, in response to the arguments made before it, whether Mr Singh had acted in breach of his common law duties of loyalty and confidentiality to the Njamal People, the Tribunal embarked upon an inquiry which was unnecessary and not germane to the question of whether Fortescue had, in the circumstances, failed to negotiate in good faith within the meaning of s 31(1) of the Native Title Act. 94 As the Full Court observed in Cox, the question of whether a party has negotiated in good faith, is to be assessed by reference to that party's state of mind and its conduct. In this case, it was the conduct of Fortescue which called for assessment. 95 Accordingly, in my respectful view, what truly fell for assessment was Fortescue's reaction to, the not altogether uncommon circumstance of, one party to a commercial transaction complaining that the other party was using the services of a legal practitioner who was disqualified from acting against the interests of that party. In this case, when faced with that allegation, Fortescue sought and obtained the advice of independent counsel at the Western Australia Bar on Mr Singh's position. The tenor of this advice, but not the advice itself, was communicated to YMAC, which disagreed with the advice. However, YMAC apparently elected not to take its own advice from independent counsel on the question, nor did it accept Fortescue's invitation to commence proceedings to have the question determined. Nor did YMAC, notwithstanding that it threatened to do so, make any complaint to the appropriate professional body in Western Australia of professional misconduct by Mr Singh. 96 In my view, those circumstances comprised the proper scope of an inquiry as to whether in the face of the native title party's complaint about Mr Singh's position, Fortescue, in continuing to use Mr Singh in the negotiations, complied with the obligation to negotiate in good faith. It was, therefore, in my respectful view, unnecessary for the Tribunal to embark upon a consideration as to whether, notwithstanding the advice which Mr Huston obtained and the passive reaction to that advice by the native title party, Mr Singh would have been found to have been disqualified at common law, from acting against the interests of the Njamal People, or to have acted unprofessionally. 97 Had I not been of the view that the appeal should be dismissed for the reasons set out above, I would have, in any event, in accordance with s 169(6) and s 169(7) of the Native Title Act, affirmed the Tribunal's determination. This is because on the basis of the evidence, the Tribunal could not have found that Fortescue's behaviour or conduct in continuing to use Mr Singh as its solicitor, in the circumstance, outlined in [95] above, amounted to unreasonable or unconscionable conduct. In the face of the YMAC complaint, Fortescue acted reasonably and in good faith in seeking the advice of an independent counsel as to the question of Mr Singh's position, and communicating the tenor of the advice to YMAC. The failure of the native title party to seek its own advice; or to make a complaint to a court or professional body, so that the competing contentions could be adjudicated on, did not render Fortescue's conduct in continuing to use Mr Singh's services, in light of the advice it had received, unreasonable, unconscionable or oppressive. In my view, therefore, on the application of the appropriate test, the Tribunal was bound to have found that the native title party failed to establish that by reason of continuing to use Mr Singh as a solicitor in the negotiations, Fortescue did not negotiate in good faith. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 6 February 2012