FEDERAL COURT OF AUSTRALIA Johnson v Native Title Registrar [2014] FCA 142 Citation: Johnson v Native Title Registrar [2014] FCA 142 Parties: ARTHUR CHARLES JOHNSON v NATIVE TITLE REGISTRAR and STATE OF QUEENSLAND File number: QUD 614 of 2013 Judge: RANGIAH J Date of judgment: 3 March 2014 Catchwords: NATIVE TITLE – application for summary judgment – applicant party to indigenous land use agreement – applicant filed application to set aside ILUA on ground of duress pursuant to s 199C(3) Native Title Act 1993 (Cth) – whether proceedings should be dismissed based on non-compliance with order – whether applicant's claim under s 199C(2) of the Native Title Act 1993 (Cth) has a reasonable prospect of success Legislation: Federal Court of Australia Act 1976 (Cth) s 31A Native Title Act 1993 (Cth) ss 24CD, 24CG, 24CL, 24EA, 199C Federal Court Rules 2011 (Cth) rr 5.22 and 5.23(1) Cases cited: Barton v Armstrong [1976] AC 104 Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152 Gamer's Motors Centre (Newcastle) Pty Ltd v Natwest Wholesaler Pty Ltd (1985) 3 NSWLR 475 Pao On v Lau Yiu Long [1980] AC 614 QGC v Bygraves (No. 2) (2010) 189 FCR 412 Spencer v Commonwealth (2010) 241 CLR 118 Date of hearing: 5 February 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: Mr J Paterson, appeared on behalf of the applicant Solicitor for the First Respondent: Mr P Hardman of Holding Redlich Solicitor for the Second Respondent: Ms P Dupuy of Crown Law IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 614 of 2013 BETWEEN: ARTHUR CHARLES JOHNSON Applicant AND: NATIVE TITLE REGISTRAR First Respondent STATE OF QUEENSLAND Second Respondent JUDGE: RANGIAH J DATE OF ORDER: 3 March 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The applicant's Originating Application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 614 of 2013 BETWEEN: ARTHUR CHARLES JOHNSON Applicant AND: NATIVE TITLE REGISTRAR First Respondent STATE OF QUEENSLAND Second Respondent JUDGE: RANGIAH J DATE: 3 march 2014 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The State of Queensland and Arthur Charles Johnson, Michael Andrew Johnson and Shirley Ann Walker are parties to an indigenous land use agreement known as the "Wulgurukaba People ILUA" ("the ILUA"). Details of the ILUA were entered into the Register of Indigenous Land Use Agreements ("the Register") on 22 December 2010. 2 On 9 September 2013, Arthur Charles Johnson ("Mr Johnson") filed an originating application seeking an order pursuant to s 199C(2) of the Native Title Act 1993 (Cth) ("the NTA") directing the Native Title Registrar to remove the details of the ILUA from the Register. Mr Johnson alleges that he and the Wulgurukaba People were subjected to duress and that they would not have entered into the ILUA but for that duress. 3 The State has applied for summary dismissal of Mr Johnson's application. 4 On 22 November 2013, I made an order requiring Mr Johnson to file and serve one or more affidavits setting out the evidence that he relied upon to establish his case by 6 December 2013. Mr Johnson filed an affidavit on 22 January 2014. The State seeks an order dismissing the proceeding on the basis of his non-compliance with the order. For reasons that will appear, this aspect of the State's application is without merit and should not have been made. 5 The second aspect of the State's application has more substance. It seeks summary judgment on the basis that Mr Johnson has no reasonable prospect of successfully prosecuting the proceeding. That application requires consideration of whether the matters alleged by Mr Johnson are capable of amounting to "duress" within the meaning of that expression in s 199C(3) of the NTA. Factual Background 6 The Wulgurukaba filed two applications for determinations of native title in respect of Magnetic Island, located approximately 9 km off Townsville. In 2004, they started negotiating the terms of an ILUA with the State in respect of Magnetic Island. The Wulgurukaba were represented by a solicitor. 7 Mr Johnson filed an affidavit annexing a letter from the solicitor addressed to the native title claimants dated 24 August 2009. That letter sets out the history of the native title determination proceedings and the negotiation of the ILUA. It also records certain legal advice that was given in respect of the proceedings and some of the terms of the ILUA. On 24 October 2013 the State sought and obtained an interim non-publication order in respect of the ILUA on the basis that its terms are confidential, but neither the State nor Mr Johnson has made any application to preserve the confidentiality of the letter. I will, however, refrain from discussing the advice and the terms of the ILUA described in the letter except to the extent necessary to explain my reasoning. 8 The solicitor's letter discloses that the Federal Court had ordered the Wulgurukaba applicant to provide a connection report to the State in 2002 or 2003. Apparently that connection report was not favourable and the State took the view that the Wulgurukaba were unable to satisfy the requirements of s 223(1) of the NTA. 9 The solicitor's letter states that the options were then to withdraw the applications, or face the prospect of the State either bringing an application to strike out the proceedings or seeking a declaration that native title had been extinguished, or entering into an ILUA to settle the applications. The letter says that a meeting of the claim group was held in 2004 and the meeting decided to authorise the applicant to pursue an ILUA with the State. 10 The solicitor's letter enclosed a copy of a draft ILUA. It said that the applicant had negotiated a better outcome than the Wulgurukaba would have achieved had there been a successful native title determination; and that there was no certainty that there would have been a successful determination. 11 The letter stated that a meeting of the claim group would be held on 26 September 2009 to consider authorisation of the ILUA. It indicated that the North Queensland Land Council had been successful in obtaining funding for the meeting. The letter continued: Due to budgetary restrictions, there are simply not enough funds available to allow everybody to come to the meeting. As a result, it has been agreed between the applicants to cap the attendance of each family group to 35 attendees. Since there are 3 main family groups within Wulgurukaba, if all 35 people attended it will mean that there will be 105 people in attendance at the Meeting. The other benefit of approaching it in this manner is that it will ensure that there is fair representation from each of the family groups. It is a matter for each of the family groups who [sic] appoint those who will attend the meeting. The main expense in holding an Authorisation Meeting of this type is the cost of travel, accommodation and food for those out of town attendees. It is extremely important that elders and other persons that are important to the decision making process for the family groups are in attendance at the meeting. Accordingly first preference should be given to ensuring that all elders and other important decision makers are able to come to the meeting – should they so choose. Given the danger on the roads and the risk of breakdown, travel by motor vehicle is not encouraged, except in circumstances where the length of travel is less than 2 hours. Save and except in gravely exceptional circumstances, those who are unable or unwilling to travel by air, should travel by bus. Those costs will be met from the budget and will be paid directly to the airline or bus company. 12 Notices of the meeting of 26 September 2009 were sent to some 200 Wulgurukaba people. The meeting authorised the making of the ILUA. The agreement was lodged for registration on 2 June 2010. 13 On 26 August 2010, Mr Johnson notified the National Native Title Tribunal ("the NNTT") that he had signed the ILUA under duress and that he wanted his signature withdrawn immediately. 14 On 9 September 2010, the solicitor sent an email to the NNTT saying, inter alia: I represented Wulgurukaba in all of their negotiations for the abovementioned ILUA and I also provided advice and support to the Wulgurukaba Claimant group at the Authorisation meeting that was convened to consider and if thought appropriate to authorise the making of the ILUA. … Essentially there was a realisation of the point they had reached, that they could take their claim no further and that they would be better off to accept something from the State (which was far in excess of what they would get under a determination) rather than simply getting nothing. … Arthur was at all times present and took an active part in the discussion that occurred on the day. At no time whatsoever did I observe any form of coercion or bullying take place at the meeting. I definitely did not observe Arthur (or anyone else for that matter) being exposed to any form of coercion or bullying. When signing the ILUA, I did not observe any of the persons comprising the Applicant to be under duress to sign the ILUA. It simply did not happen. … At no time whatsoever (whether before, during or after the ILUA Authorisation Meeting) did Arthur ever make any assertions or allegations that he had "signed the Draft ILUA under duress". In fact I clearly recall that after the claimant group had taken a decision to authorise the ILUA, and prior to the claimant group considering a motion to direct the Applicant to sign the ILUA, one of Arthur's family asked Arthur and the other persons comprising the Applicant whether they were prepared to sign the ILUA – they all stated that they were. The decision to direct the Applicants to sign the ILUA was only made after the Applicant had informed the members of the claimant group present at the meeting that they would sign the ILUA. 15 On 24 September 2010, Mr Johnson informed the NNTT verbally that he would like to withdraw his objection to the registration of the ILUA and on 12 October 2010 he wrote to the NNTT asking that the ILUA be processed for registration. On 20 October 2010, he wrote to the NNTT noting that he would like to revoke his email of 26 August 2010 and that he wished the ILUA "to remain and go towards registration". 16 Some three years later, Mr Johnson filed his originating application seeking the removal of the details of the ILUA from the Register. The applicant's case 17 Mr Johnson was given the opportunity to file affidavits setting out the evidence he relied on to make out his case. He did not have legal assistance. The affidavits he filed were scanty. His submissions were bereft of detail. I do not intend this as a criticism, but merely to point out that the material placed before the Court by Mr Johnson is very limited and that it is not easy to decipher precisely what his allegations of duress are. 18 Mr Johnson described the duress he relied on for the purpose of s 199C(3) of the NTA as "economic duress" and "physical duress". 19 The "economic duress" was said to consist of two matters. The first matter was that the members of the claim group had realised, in the words used by the solicitor in his email of 9 September 2009, that they "could take their claim no further and that they would be better off to accept something from the State…rather than simply getting nothing". I take Mr Johnson to contend that the decision of the authorising group to authorise the ILUA was brought about by pressure by the solicitor in advising that the claim group faced the prospect of getting nothing if they did not authorise the ILUA. 20 The second component of the "economic duress" was the statement made in the solicitor's letter of 24 August 2009 that there were not enough funds available to allow everybody to come to the authorisation meeting. I understood Mr Johnson to submit that the statement about a lack of funds meant that there was some kind of economic pressure brought to bear by the solicitor upon authorising group. 21 As to the "physical duress", Mr Johnson alleged that many of the people who were present at the authorisation meeting were not truly Wulgurukaba People and, as a result, the true Wulgurukaba People were outnumbered. I understood him to assert that only the descendants of Jimmy White were truly Wulgurukaba. Mr Johnson and many members of his family are descended from Jimmy White. Consideration The summary judgment application 22 Section 31A of the Federal Court of Australia Act 1976 (Cth) provides, relevantly: 31A Summary judgment … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. 23 The State argued that Mr Johnson has no reasonable prospect of successfully prosecuting his application for an order that the Registrar remove the details of the ILUA from the Register. 24 In Spencer v Commonwealth (2010) 241 CLR 118, French CJ and Gummow J said at [25]: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. 25 I will proceed on the assumption that, at trial, Mr Johnson would prove the factual matters which he asserts. 26 Mr Johnson's application relies on s 199C of the NTA, which provides, relevantly: 199C Removal of details of agreement from Register Federal Court order to remove details (2) The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register. Ground for order (3) The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement). Compensation order (4) If the Court orders the Registrar to remove the details, the Court may also order the person who committed the fraud, exerted the influence or applied the duress to pay compensation to any party to the agreement who will suffer loss or damage as a result of the removal of the details. 27 The State does not argue that Mr Johnson is not a "party" to the ILUA for the purposes of s 199C(2) and (3). It follows that the State may be taken to accept that each of the registered native title claimants is individually a party. That would be consistent with the view of s 24CD taken by Reeves J in QGC v Bygraves (No. 2) (2010) 189 FCR 412 at [85]. That approach raises the question of whether the phrase "a party would not have entered into the agreement" in s 199C(3) refers only to the persons named in the ILUA as parties, or whether it also refers to the group of persons who hold or may hold native title. That question need not be considered here because I will assume that it refers to both. 28 On this assumption, Mr Johnson must prove at trial that either he or the Wulgurukaba People were subjected to "duress by any person". It must also appear either that he or the Wulgurukaba would not have entered into the agreement but for that duress. It is unnecessary, for present purposes, to consider whether the Court has a discretion as to whether to grant relief if those matters are made out. 29 The term "duress" has both a legal and an ordinary meaning. It is necessary to decide which meaning that expression bears where is used in s 199C(3). In Gamer's Motors Centre (Newcastle) Pty Ltd v Natwest Wholesaler Pty Ltd (1985) 3 NSWLR 475, McHugh JA (Priestly JA agreeing) said at 494: [I]n interpreting a statute, the relevant question is not how an "ordinary citizen" would read the words but what Parliament intended by the words it has used? Parliament does not always use words in their popular sense. It may, for example, use words in their legal sense: Commissioner for Special Purposes of Income Tax v Pemsel (at 573, 577, 580). In that case Lord Macnaghten said (at 580) that in "construing Acts of Parliament, it is a general rule that words must be taken in their legal sense unless a contrary intention appears". 30 The Macquarie Dictionary gives the ordinary meaning of "duress" as, relevantly, constraint or compulsion. However, an examination of the context in which s 199C(3) appears demonstrates that "duress" takes its meaning from the law of contract. 31 An ILUA has effect as if it were a contract among the parties to the agreement while its details are entered on the Register: s 24EA(1) of the NTA. All other persons holding native title in relation to any of the land or waters in the area covered by the agreement are also bound by the agreement: s 24EA(1) and (2). Section 199C deals with removal of the details of an ILUA from the Register. Once removed, the agreement will no longer have contractual effect by force of s 24EA. 32 Subsections 199C(2) and (3) allow the Court to order that the Registrar remove the details of an agreement from the Register on the grounds of "fraud, undue influence or duress". Each of those grounds describes a basis upon which a contract may be vitiated at common law or equity because the consent of a party was induced by a form of illegitimate pressure. 33 The connection between the three grounds was described in Barton v Armstrong [1976] AC 104, where Lord Cross said at 118: There is an obvious analogy between setting aside a disposition for duress or undue influence and setting it aside for fraud. In each case - to quote the words of Holmes J. in Fairbanks v. Snow (1887) 13 N.E. 596, 598 -" the party has been subjected to an improper motive for action." 34 These considerations demonstrate that Parliament intended that each of "fraud", "undue influence" and "duress" in s 199(3) was to have its meaning under the law of contract. 35 In Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40, McHugh JA (Samuels and Mahoney JJA agreeing) described the elements of duress at 45: The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 384 per Lord Diplock. As his Lordship pointed out, the consequence is that the "consent is treated in law as revocable unless approbated either expressly or by implication after the illegitimate pressure has ceased to operate on his mind" (at 384). In the same case Lord Scarman declared (at 400) that the authorities show that there are two elements in the realm of duress: (a) pressure amounting to compulsion of the will of the victim and (b) the illegitimacy of the pressure exerted. "There must be pressure", said Lord Scarman "the practical effect of which is compulsion or the absence of choice". 36 McHugh JA continued at 46: A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress. 37 In Pao On v Lau Yiu Long [1980] AC 614, Lord Scarman said at 635: Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the observation of Kerr J. in Occidental Worldwide Investment Corporation v. Skibs A/S Avanti [1976] 1 Lloyd's Rep. 293, 336 that in a contractual situation commercial pressure is not enough. There must be present some factor "which could in law be regarded as a coercion of his will so as to vitiate his consent." 38 In Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152, Lord Goff said at 165: It was at one time thought that, at common law, the only form of duress which would entitle a party to avoid a contract on that ground was duress of the person…However…that limitation has been discarded; and it is now accepted that economic pressure may be sufficient to amount to duress for this purpose, provided at least that the economic pressure may be characterised as illegitimate and has constituted a significant cause inducing the plaintiff to enter into the relevant contract. (citations omitted) 39 The first aspect of "economic duress" relied on by Mr Johnson is the advice given by the solicitor that led the Wulgurukaba to think that they had to "accept something…rather than simply getting nothing". It may readily be accepted that such advice was the reason or part of the reason why Mr Johnson and the other Wulgurukaba decided to authorise the making of the ILUA. However, Mr Johnson makes no allegation that the solicitor was acting dishonestly, or unconscionably, or for some purpose other than carrying out his duty as solicitor for the Wulgurukaba. The advice certainly seems to have been supported by the solicitor's description of the connection report as being unfavourable for the Wulgurukaba. Mr Johnson has no reasonable prospect of demonstrating that the advice given by the solicitor amounted to illegitimate pressure. 40 The next aspect of "economic duress" relied upon by Mr Johnson was that the solicitor's letter to the Wulgurukaba claimants said that, "…there are simply not enough funds available to allow everybody to come to the meeting". Mr Johnson did not explain how or why this statement could amount to illegitimate pressure that induced him to become a party to the agreement or the group to authorise the making of the ILUA. The solicitor was making a statement that reflected the reality that there were insufficient funds to pay for the travel cost of all members of the claim group. There is no allegation that the statement was untrue or misleading. It is not apparent how the statement could have placed pressure on Mr Johnson or the group in such a way that they were induced to become a party to the ILUA or authorise its making. Mr Johnson has no reasonable prospect of establishing that this statement amounted to illegitimate pressure. 41 It may be that Mr Johnson's real complaint is with the next sentence in the solicitor's letter that, "As a result, it has been agreed between the applicants to cap the attendance of each family group to 35 attendees". That statement could mean that the persons comprising the applicant had decided that only 35 members of each family group were permitted to attend the meeting, or it could mean that they had decided that the claim group could only pay for the travel expenses of 35 members of each family group. In the context of the letter, I think that it was intended to convey the latter meaning, but even if it were the former it would not assist Mr Johnson to make out his case of duress. Mr Johnson has made no allegation of dishonesty or unconscionability or other illegitimacy on the part of the applicant in making this decision. That is hardly surprising, because he was one of persons comprising the applicant who made the decision. If only 35 members of each of the three family groups were permitted to attend the meeting, that might have created a basis for a submission that the Registrar should refuse to enter the details of the agreement on the Register: see s 24CG(3)(b) and s 24CL(3). However, this does not amount to "duress" for the purposes of s 199C(3). 42 Mr Johnson's allegation of "physical duress" is that a number of persons who attended the authorisation meeting were not truly Wulgurukaba. He asserted that only members of his family were Wulgurukaba. He asserted that the members of his family were outnumbered by those who are not truly Wulgurukaba People and that they were outvoted. 43 There are significant difficulties with Mr Johnson's argument. The reasons for the decision to register the details of the ILUA record that the resolutions were passed at the authorisation meeting "without objection". The solicitor's email to the NNTT indicated Mr Johnson willingly indicated his consent to the ILUA by signing it. Mr Johnson provided no evidence to the contrary. 44 Mr Johnson's real complaint seems to be that only members of his family should be recognised under the ILUA as Wulgurukaba and as having rights and interests in Magnetic Island. The assertion that people who are not Wulgurukaba had voted at the meeting, might, if proved, have influenced the Registrar not to enter the details of the ILUA. However, no such submission was made by Mr Johnson to the Registrar. Mr Johnson, in fact, ultimately supported its registration. 45 There is no suggestion that any of the people who voted at the meeting did not believe themselves to be Wulgurukaba. If any form of pressure can be discerned from the mere fact that people who might not have truly been Wulgurukaba supported the making of the ILUA, then it is impossible to see how such pressure could be considered to be illegitimate. There is no allegation of threats, dishonesty or unconscionable conduct by those people. Mr Johnson has no reasonable prospect of succeeding in his "physical duress" argument. 46 For these reasons, Mr Johnson does not have any reasonable prospect of demonstrating "duress" for the purposes of s 199C(3). Application for dismissal because of non-compliance with orders 47 The State also sought an order that the application be dismissed pursuant to r 5.23(1) of the Federal Court Rules 2011 (Cth). Rule 5.22 provides that a party is in default if the party fails to comply with an order of the Court or prosecute the proceeding with due diligence. Rule 5.23(1) permits the Court to dismiss the proceeding if an applicant is in default. 48 The State's complaint was that an order was made on 22 November 2013 requiring Mr Johnson to file and serve one or more affidavits setting out the evidence that he relied upon to establish his case on or before 6 December 2013, but he did not file any further affidavit until 22 January 2014. This was the only default complained of by the State. 49 Although Mr Johnson did not file any affidavits within the required time, he had contacted the Court's Registry on 6 December 2013 and advised that his son was seriously ill in hospital in Brisbane. Mr Johnson has provided a more than adequate explanation for the late filing of his affidavit. It is the only order that he has failed to comply with. No prejudice has been caused to the State. 50 The State had itself failed to comply with an order made on 24 October 2013 requiring it to file an application for a non-publication order on or before 1 November 2013. 51 In these circumstances, the application by the State for dismissal of the proceeding on the basis of non-compliance with the order was churlish, unnecessary and bound to fail. It should not have been made. Conclusion 52 Mr Johnson does not have reasonable prospects of successfully prosecuting his application for an order that the details of the ILUA be removed from the Register. There will be summary judgment for the respondents pursuant to s 31A of the Federal Court of Australia Act. The Originating Application will be dismissed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 3 March 2014