FEDERAL COURT OF AUSTRALIA Kemppi v State of Queensland [2017] FCA 902 Appeal from: Application for leave to appeal: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 File number(s): QUD 219 of 2017 Judge(s): JAGOT J Date of judgment: 4 August 2017 Catchwords: NATIVE TITLE – application for leave to appeal– whether decision of primary judge attended by sufficient doubt to warrant reconsideration – whether the applicant would suffer substantial injustice if leave to appeal were refused – leave refused Legislation: Native Title Act 1993 (Cth) s 66B Cases cited: Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 House v R (1936) 55 CLR 499 Date of hearing: 4 August 2017 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr D Yarrow Solicitor for the Applicant: Just Us Lawyers Counsel for the First Respondent: Mr G Del Villar Solicitor for the First Respondent: Crown Law Counsel for the Third Respondent: Ms CJ Klease with Ms J Macdonald Solicitor for the Third Respondent: The Australian Government Solicitor Counsel for Intervening Parties: Mr KA Barlow QC Solicitor for Intervening Parties: King & Wood Mallesons Counsel for Mr Tim Wishart Mr AM Preston Table of Corrections 17 August 2017 The citation Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373 has been corrected in the 'Appeal from' and 'Cases cited' fields on the cover page and in [1] of the Reasons. 17 August 2017 In the appearances on the cover page, the Counsel for the Third Respondent and Counsel for the Intervening Parties have been corrected. ORDERS QUD 219 of 2017 BETWEEN: DELIA KEMPPI First Applicant LESTER BARNARD Second Applicant GARY SALTNER FISHER (and others named in the Schedule) Third Applicant AND: STATE OF QUEENSLAND First Respondent ADRIAN BURRAGUBBA & ORS ON BEHALF OF THE WANGAN AND JAGALINGOU PEOPLE Second Respondent COMMONWEALTH OF AUSTRALIA (and others named in the Schedule) Third Respondent PRISCILLA GYEMORE (and others named in the Schedule) First Intervener JUDGE: JAGOT J DATE OF ORDER: 4 AUGUST 2017 THE COURT ORDERS THAT: 1. The amended application for leave to appeal filed 9 May 20147 be dismissed. 2. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: 1 There is before me today an application for leave to appeal from an order made by the primary judge on 11 April 2017dismissing an interlocutory application under s 66B of the Native Title Act 1993 (Cth)(NTA) to replace the applicant. That order was consequential upon his Honour's reasons for judgment, Burragubba on behalf of the Wangan and Jagalingou People v State of Queensland [2017] FCA 373. 2 There is no dispute about the relevant principles which regulate the making of the application for leave and its resolution. The applicant needs to persuade me that the primary decision is attended by sufficient doubt to warrant reconsideration, and I also need to be satisfied that substantial injustice would result should leave be refused, supposing the primary decision to be wrong. These criteria are to be applied in the present case recognising that the power of the Court to make an order for replacement of an applicant under s 66B of the NTA is a discretionary one, so that, ultimately, the principles in House v R (1936) 55 CLR 499 regulate the exercise of any form of appellate scrutiny. 3 While there are six proposed grounds which are said to give rise to sufficient doubt about the decision of the primary judge, having had close regard in particular to the notice of the meeting which occurred in March 2016 I am not persuaded, that any of those grounds raise any, let alone sufficient, doubt. 4 First, it is said that his Honour erred by stating at [32] of his reasons that "where the notice relates to a meeting that is being called for the purposes of replacing an applicant, or certain members of an applicant, under s 66B, it must clearly state that that is the main purpose, or one of the main purposes, of the meeting." In support of the application for leave, the applicant submits that this is contrary to authority which discloses that the requirement for a notice of meeting is simply to give reasonable notice of the business to be decided and a reasonable opportunity to participate in the decision-making process. 5 The difficulty with the applicant's focus on the last sentence of [32] of the primary judge's reasons is that it does not fairly take account of what is said in the preceding sentences. In particular, it is clear that his Honour was applying the test of reasonable notice of the business to be conducted and a reasonable opportunity to participate in the deliberations. While it is true that the notice of the meeting in March 2016 is headed "Wangan and Jagalingou People Authorisation Meeting" and contains a statement that "An authorisation meeting has been called of the Wangan and Jagalingou People Native Title Claim Group", it is the notice as a whole which must be construed, and this is what the primary judge did. When construed as a whole, it is apparent that the notice given was to those members of the Wangan and Jagalingou People who might have a concern as expressed in the notice, namely, that: Negotiations with Adani Mining have proceeded without the authority of the Wangan and Jagalingou People and that some applicants have received sitting fees for attending those negotiations without disclosing the benefits they have received. 6 Read as a whole, the notice did not give the Wangan and Jagalingou People as a whole a reasonable opportunity to decide whether or not to attend the meeting and participate in the deliberations which were to occur at that meeting. 7 Apart from the fact that I do not consider his Honour erred in this regard, I also accept the submissions made for the proposed interveners; namely that there were a number of other reasons on which it would have been open to the primary judge to conclude that the notice of the March 2016 meeting was not a valid notice. Relevantly, the notice did not state that the business of the meeting included a proposal to revoke the authority of the existing applicant to conduct the application and it did not state any purpose of additional persons being added as members of the applicant. In other words, it seems to me that the notice for the March 2016 meeting was defective on numerous grounds, only some of which were relied upon by his Honour in his reasons for judgment. 8 Second, a point is made that the primary judge erred in an asserted conclusion at [33] of his reasons, which are said to exclude conduct of an applicant in negotiating an indigenous land use agreement (ILUA) as a valid reason for convening an authorisation meeting. The difficulty with this proposed ground is that I do not read his Honour's reasons for judgment as going so far. Indeed, I read his Honour's judgment in these paragraphs as focused only on the question whether the notice of the March 2016 meeting satisfied the criteria of reasonable notice of the matters to be conducted at the meeting, and a reasonable opportunity to decide whether to attend the meeting and to participate in its deliberations. 9 Third, I also accept the submissions of the Commonwealth about this aspect of the NTA as set out in paragraph 8(a) to (e) of the Commonwealth's submissions dated 2 August 2017, which relevantly state: a. Section 251A NTA only authorises or approves an event: the making of an ILUA. Section 251A NTA is not the means through which a claim group authorises anyone to do anything, including negotiating an ILUA on its behalf; b. The source of authority of an applicant (whether acting in their capacity as applicant or registered native title claimant) emanates only through a claim group's authorisation of the applicant made pursuant to s 251B NTA; c. It is through that authorisation, and the broad powers given to an applicant under section 62A NTA, that an applicant is empowered to negotiate area ILUAs which, by their very definition, deal with native title rights and interests which are the subject matter of the native title determination application; d. A claim group's power to change the constitution of the applicant (and therefore the registered native title claimant) is only through s 66B NTA, and not s 251A NTA; and e. It is permissible for members of a claim group to seek to change the constitution of the applicant pursuant to s 66B NTA because of actions taken by a person or persons comprising the applicant in the negotiation of an area ILUA on behalf of the claim group (and not only with respect to their conduct of the native title determination application). 10 I do not see the primary judge as having stated any conclusions to the contrary. 11 These conclusions effectively dispose of not only proposed grounds 1 and 2 of the proposed appeal, but also grounds 3 and 4. 12 As to ground 5 of the proposed appeal, which concerns a challenge to the reasons the primary judge gave for indicating that, in any event, he would not have made orders under s 66B for discretionary reasons, again, I do not see any error by the primary judge. But, just as importantly, perhaps, there seem to me to be overwhelming discretionary considerations which would have weighed against any exercise of discretion under s 66B in favour of the making of those orders, as the primary judge identified. 13 Insofar as the primary judge's reasons are concerned, I am unable to accept that his Honour's conclusions about the validity and integrity of the 16 April 2016 meeting were glaringly improbable or contrary to compelling inferences. In this regard, I agree with the submissions by the State of Queensland that this contention overlooks the unchallenged affidavit evidence from the second respondent about the steps which had been taken to ensure the integrity of the April 2016 meeting. As such, I accept the State's submission that it was plainly open to the primary judge to find, as he implicitly did, that the April 2016 meeting was valid. 14 This leaves the allegation that the primary judge took into account irrelevant considerations in respect of the exercise of discretion that his Honour indicated he would have undertaken, had he reached a different conclusion about the validity of the notice for the March 2016 meeting. I find the submissions for the State about this issue compelling. The applicant's contentions do not give sufficient weight to the fundamental principle that an irrelevant consideration is one that, according to the relevant statute, a decision-maker must not take into account. As the State submitted, there is nothing in the scope, purpose or objects or provisions of the NTA which would support the contention that the matters identified in the subparagraphs of proposed ground 6 of the appeal are matters which the primary judge was prohibited from taking into account in the exercise of his discretion. 15 I expressly adopt the submission of the State that: To regard the NTA as mandating that consequence [namely, that the court is prohibited from taking such matters into account] would be remarkable: the court would have to shut its eyes to the likelihood that replacing the existing applicant would compound divisions in the claim group, by enabling a minority faction opposed to a particular ILUA to take control of the W & J application in circumstances where the claim group has already expressed its emphatic approval of the ILUA. 16 Otherwise, I do not see why the primary judge was prohibited from taking into account the apparent inadequacies in the notice given of the March 2016 meeting in the exercise of discretion. It seems to me, to the contrary, that this was a matter which was entitled to weight in the exercise of any discretion. 17 Accordingly, I am convinced that this application for leave is incapable of satisfying the first limb of the requirement for leave. Considering the fact that it was more than open to his Honour to find that the April 2016 meeting was the result of a process unaffected by any deficiency, it necessarily also follows that the application for leave is incapable of establishing substantial injustice should the decision of the primary judge be assumed to be wrong. 18 For these reasons, the orders I make are that the amended application for leave to appeal be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 4 August 2017 SCHEDULE OF PARTIES QUD 219 of 2017 Applicants Fourth Applicant: ALEXANDRA GATER Fifth Applicant: LYNDELL TURBANE Sixth Applicant: ADRIAN BURRAGUBBA Seventh Applicant: LINDA BOBONGIE Eighth Applicant: MURRAWAH JOHNSON Ninth Applicant: BILLIE-ANNE BROOME Respondents Fourth Respondent: BARCALDINE REGIONAL COUNCIL Fifth Respondent: CENTRAL HIGHLANDS REGIONAL COUNCIL Sixth Respondent: ISAAC REGIONAL COUNCIL Seventh Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Eighth Respondent: TELSTRA CORPORATION LIMITED Ninth Respondent: ALPHA COAL PTY LTD Tenth Respondent: AUSTRALIA PACIFIC LNG PTY LIMITED ACN 001 646 331 Eleventh Respondent: BISAM PTY LIMITED Twelfth Respondent: BLAIR ATHOL COAL PTY LIMITED Thirteenth Respondent: CLYDE IAN DOXFORD Fourteenth Respondent: HANCOCK COAL PTY LTD Fifteenth Respondent: HANCOCK GALILEE PTY LTD Sixteenth Respondent: HANCOCK KEVIN'S CORNER PTY LTD Seventeenth Respondent: QUEENSLAND COAL PTY LIMITED Eighteenth Respondent: PETER SHEVILL Nineteenth Respondent: VALE COAL EXPLORATION PTY LTD ACN 108 568 725 Twentieth Respondent: BELLEVUE PASTORAL PTY LTD Twenty First Respondent: EVAN BENNEY Twenty Second Respondent: MARGARET CATHERINE BIRD Twenty Third Respondent: PETER JOHN BAIRD Twenty Fourth Respondent: CHUDLEIGH FARM PTY LTD Twenty Fifth Respondent: BRUCE RAYMOND COBB Twenty Sixth Respondent: SAMANTHA ELIZABETH COBB Twenty Seventh Respondent: CREEK FARM PTY LTD Twenty Eighth Respondent: ALLISON GLENDA FINGER Twenty Ninth Respondent: STEVEN WILLIAM FINGER Thirtieth Respondent: SHARON MAREE FRASER Thirty First Respondent: SIMON MUNRO FRASER Thirty Second Respondent: TREVOR DAVID GOODWIN Thirty Third Respondent: JOHNSON MANAGEMENT (QLD) PTY LTD T/AS BECO PASTORAL TRUST Thirty Fourth Respondent: LOGAN CREEK PTY LTD Thirty Fifth Respondent: MEXICO GRAZING CO PTY LTD Thirty Sixth Respondent: RAYE MARILYN O'SULLIVAN Thirty Seventh Respondent: ROBERT ALAN O'SULLIVAN Thirty Eighth Respondent: PRETTY PLAINS PTY LTD Thirty Ninth Respondent: JOANNE MARY SALMOND Fortieth Respondent: JOSEPHINE BARBARA SALMOND Forty First Respondent: GEOFFREY THOMAS SCHARF Forty Second Respondent: PATRICK JOHN SCHARF Forty Third Respondent: TERESA MONICA SCHARF Forty Fourth Respondent: DAVID ALBERT SCOTT Forty Fifth Respondent: SEDGEFORD PASTORAL COMPANY PTY LTD Forty Sixth Respondent: AINSLIE BRUCE MCKENZIE TEMPLETON Interveners Second Intervener IRENE SIMPSON Third Intervener LES TILLEY Fourth Intervener PATRICK MALONE Fifth Intervener NORMAN JOHNSON (JNR) Sixth Intervener GWENDOLINE FISHER