Anderson v Queensland

Case [2011] FCA 1158

FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Wulli Wulli People v State of Queensland [2011] FCA 1158

Citation: Anderson on behalf of the Wulli Wulli People v State of Queensland [2011] FCA 1158
Related to: Dodd on behalf of the Wulli Wulli People v State of Queensland (No 2)
Parties: ELLIOT ANDERSON AND OTHERS ON BEHALF OF THE WULLI WULLI PEOPLE v STATE OF QUEENSLAND AND OTHERS
File number: QUD 6006 of 2000
Judge: COLLIER J
Date of judgment: 11 October 2011
Catchwords: NATIVE TITLE – majority decision of applicant to native title determination application – decision of 12 of 15 members of applicant to replace solicitor on record – previous resolution of native title claim group authorising decision of applicant by majority – whether majority decision effective – whether decision of applicant must be unanimous – whether authorisation of each person comprising applicant is in personal capacity – purpose of legislation
Legislation: Native Title Act 1993 (Cth) ss 13, 61, 62, 66B, 84D, 190C(4), 251B
Explanatory Memorandum to the Native Title Amendment (Technical Amendments) Bill 2007 (Cth)
Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005)
Cases cited: Anderson v Western Australia (2003) 204 ALR 522 cited
Ankamuthi People v State of Queensland (2002) 121 FCR 68 cited
Butchulla People v Queensland (2006) 154 FCR 233 cited
Chapman v Queensland (2007) 159 FCR 507 cited
Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland [2011] FCA 690 cited
Doolan v Native Title Registrar (2007) 158 FCR 57 cited
Lennon v State of South Australia [2010] FCA 743 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 cited
Tigan v Western Australia [2010] 188 FCR 533 distinguished
Date of hearing: 13 July 2011
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 63
Counsel for the Applicant (for Notice of Motion filed 29 June 2011): Mr D O'Gorman SC and Mr J Creamer
Solicitor for the Applicant: Queensland South Native Title Services
Counsel for the Respondent (for Notice of Motion filed 29 June 2011): Ms HP Bowskill
Solicitor for the Respondent: Just Us Lawyers
Solicitor for the State of Queensland: Ms C Taggart of Crown Law

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 6006 of 2000
BETWEEN:

ELLIOT ANDERSON AND OTHERS ON BEHALF OF THE WULLI WULLI PEOPLE
Applicant
AND:

STATE OF QUEENSLAND AND OTHERS
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

11 OCTOBER 2011

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

The notice of motion 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 6006 of 2000
BETWEEN:

ELLIOT ANDERSON AND OTHERS ON BEHALF OF THE WULLI WULLI PEOPLE
Applicant
AND:

STATE OF QUEENSLAND AND OTHERS
Respondent

JUDGE:

COLLIER J

DATE:

11 OCTOBER 2011

PLACE:

BRISBANE

REASONS FOR…

Continue reading Anderson v Queensland

Sign in free to access the full text

Details
AGLC
Anderson v Queensland [2011] FCA 1158
Case
[2011] FCA 1158
Decision Date

CaseChat Overview and Summary

In the case of Anderson v Queensland, the applicant, the Wulli Wulli native title claim group, sought to challenge a decision made by a majority of its members to change the solicitor on record for the group’s native title application. The dispute arose from a resolution passed at an authorisation meeting on 13 June 2011, which authorised the applicant to act on behalf of the claim group under certain terms and conditions, including that decisions of the applicant shall be made on the basis of a majority vote. The minority members of the applicant, who were opposed to the change of solicitor, argued that the decision was not effective because it did not represent a unanimous decision of all members of the applicant.

The court was required to determine whether the decision of a majority of the applicant to change the solicitor on record was effective, and whether the decision of the applicant must be unanimous. The court considered the relevant provisions of the Native Title Act 1993 (Cth), as well as relevant case law, including Butchulla, Doolan and Chapman. The court noted that the authorisation of each person comprising the applicant was in their personal capacity and that the Act did not imply that the ability of the persons constituting the applicant to act was dependent upon the others continuing to act.

The court found that the decision of 12 of the 15 persons constituting the applicant, that a notice be filed changing the solicitor on record, was effective. The court noted that the resolution of the authorisation meeting empowering the applicant included a condition that the applicant was able to make effective decisions by majority. The court further noted that the minority members of the applicant were capable, able and willing to continue to serve as members of the applicant and that principles specifically relevant to such circumstances were not applicable in this case. The court concluded that the decision of the majority of the applicant was effective, and dismissed the motion.

The court held that the decision of a majority of the applicant to change the solicitor on record was effective in the circumstances of this case. The court found that the authorisation of each person comprising the applicant was in their personal capacity and that the Act did not imply that the ability of the persons constituting the applicant to act was dependent upon the others continuing to act. The court further held that the resolution of the authorisation meeting empowering the applicant included a condition that the applicant was able to make effective decisions by majority. The court dismissed the motion and made no orders.

Orders

Orders of the court

The notice of motion be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant to the motion submitted that the purported notice of change of solicitor, whereby Just Us Lawyers purportedly became the solicitor on the record of the applicant, was itself flawed and of no effect, and to that extent there is no basis for any orders of the Court “removing” Just Us Lawyers from the record. At the hearing on 13 July 2011 however the only ground pressed in support of the motion was that the appointment of Just Us Lawyers as the solicitor for the applicant was of no effect because Just Us Lawyers do not hold instructions from all of the persons constituting the applicant as required by the Native Title Act 1993 (Cth) (“the Act”). In deciding the motion I focus on this ground.Background The background facts to motion are uncontroversial. They are described in the affidavit of Ms Elizabeth Law filed 23 June 2011. Authorisation meetings of the Wulli Wulli claim group were held on 14 February 2009 and on 13 June 2011. At the authorisation meeting of 14 February 2009 a number of resolutions were passed including the following:· Resolution 10That this meeting determines that the number of members of the Wulli Wulli native title claim group authorised to make the Application for native title and deal with matters arising in relation to it shall be 15.· Resolution 11That this meeting authorises the following members of the Wulli Wulli native title claim group to make the application for determination of native title and deal with matters arising in relation to it subject to the terms and conditions provided to this meeting and marked “B”.1. Desmond Dodd2. Annette Fuller3. Neil Saltner4. Elizabeth Blucher5. Drew Millar6. Robert Clancy7. Celeste Williams8. Brian Clancy9. Jill Wilson10. Marjorie Reid11. Robert Bond12. Jeffrey Williams13. Elizabeth Law14. Elliott Anderson15. Ivan Saltner The terms and conditions marked “B” referred to in Resolution 11 were:“B”TERMS AND CONDITIONSOF APPOINTMENT OF APPLICANTS FOR THEWULLI WULLI NATIVE TITLE GROUPThe claim group of the Wulli Wulli & DJJ Peoples authorise the Applicants appointed on 14 February 2009 to act on behalf of the claim group under the following terms and conditions.1.That the Applicants represent the whole of the claim group not just their own family descent group.2.That in the event that one or more Applicant is unable or unwilling to continue to act as an Applicant whether as a result of death, ill-health or any other reason the remainder of the Applicants may continue to act as Applicants.3.The Applicant may agree to reduce the area of the claim in mediation with any other party and may take any formal steps on behalf of the Applicant to effect such reduction without conducting an authorisation meeting.4.Decisions of the Applicant shall be on the basis of a majority vote and all Applicants shall abide by a majority decision.5.The Applicant may negotiate and reach agreement with respect to Cultural Heritage matters in addition to the claim Application but must ensure that for Cultural Heritage inspection work they allocate the work fairly amongst all qualified members of the claim group.6.The Applicants may negotiate and reach agreement with respect to Future Act matters but are required to consult with Elders of the group before executing any agreement.7.The Applicants shall as far as possible act according to traditional law and custom and operate with Elders Structures and family groups providing evidence to them and through working groups which may be established by the Applicants.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having made this observation, however I note that Resolution 5 did not purport to be a decision of the claim group in relation to the identity of the solicitors on the record or even an instruction to the applicant – rather it was in the nature of an expression of the views of the claim group, and an authority granted to the applicant which the applicant was at liberty to accept or reject. Second, it is not in issue that the minority members of the applicant, Mr Elliot Anderson, Mr Desmond Dodd and Mr Jeffrey Williams, are capable, able and willing to continue to serve as members of the applicant. There is no application before me to remove these persons as members of the applicant because they are incapable, unable and/or unwilling to act. Principles specifically relevant to such circumstances are not applicable in this case. However broader principles developed in cases including Butchulla, Doolan and Chapman relating to the role of the applicant are relevant in considering the motion before me. Third, the applicant to the motion submits that the decision of Gilmour J in Tigan is squarely on point. However an key factor which distinguishes the facts before me from those before his Honour in Tigan is that in this case the resolution of the authorisation meeting empowering the applicant included a condition that the applicant was able to make effective decisions by majority. Specifically, while Resolution 4 of the authorisation meeting of 13 June 2011 contemplated circumstances where one or more of the persons comprising the applicant might be incapable, unable or unwilling and authorised the remaining persons to continue to act as applicant – a position supported by the cases I have discussed earlier in this judgment – Resolution 4(c) provides:The members of the Wulli Wulli Claim group directs that the Applicant must:……(c) in the event that agreement cannot be reached, make all decisions by simple majority of those present at a face to face meeting or by a simple majority of those persons comprising the applicant providing written or verbal instructions to the Applicant’s legal advisor. All persons comprising the Applicant must abide by the simple majority decision; and…Findings In my view, the decision of 12 of the 15 persons constituting the applicant, that a notice be filed changing the solicitor on the record, was effective. I form this view for the following reasons. First, the authorities to which I have referred are unambiguous in finding that the authorisation of each person comprising the applicant in any case is of the named persons, personally: Butchulla at [42], [45], Doolan at [56], Chapman at [9]. While the Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005) defines “jointly” as meaning “together, in common”, s 61(2)(c), in its reference to persons being jointly “the applicant” does not create a legal entity itself capable of suing, or imply that the ability of the persons constituting the applicant to act is dependent upon the others continuing to act (Chapman at [9]). Indeed, I respectfully note the point made by Spender J in Doolan at [66]-[67] in relation to the requirement under s 62(1) that a claimant affidavit must be accompanied by “an affidavit sworn by the applicant”, and his Honour’s observation that the requirements of s 62 are satisfied by the filing of affidavits by each of the persons who constitute “the applicant” deposing to specified beliefs. Clearly, s 62 does not contemplate a “joint” affidavit by members of the applicant.

Ratio Decidendi

Legal Principle Established

Gilmour J considered Doolan and Chapman and continued:27. Two propositions, at least, emerge from these cases. First, they are to be distinguished on their facts from the present case. Here, the Wiggans are both alive and there is no evidence that they are not willing or able to act as members of the applicant. Second both cases cited by the respondent re-affirm the statutory requirement that, although authorised individually, members of the applicant must, in accordance with the Act, act jointly.28. The issue raised by the second submission does not concern the authorisation of any of the members of the applicant in that capacity but rather whether they can cause the applicant to deal with a matter arising under the Act in relation to the application by majority decision. My opinion, as I said, is that they can not. They must act in concert. If dissension arises, as it seems has occurred here, between the named persons who are the applicant, then there are procedures under the Act for the native title claimant group to effect a change in the membership of the applicant. Indeed that has been foreshadowed in this case.29. The respondents submit that decisions of the National Native Title Tribunal support their contentions upon this issue. The applicant on the other hand has provided very persuasive written submissions that this is not the case, and that the Tribunal’s approach is consistent with that taken in this Court. It is unnecessary, given the conclusion to which I have come, to consider these additional submissions concerning the Tribunal.30. It follows, in my opinion, that the action of the respondents in instructing Western Legal to act and to file a notice of change of solicitors were not actions by, or authorised by, the applicant. Accordingly, the Registrar should be ordered to remove the notice of change of solicitors from the Court file and to return it to Western Legal.ConsiderationPreliminary observations Before turning to the key question in these proceedings – namely whether, in the circumstances of this case, the decision of a majority of the applicant to file a notice of change of solicitor was effective – I make three preliminary observations. First, Resolution 5 as passed at the claim group’s authorisation meeting of 13 June 2011 was in terms authorising the applicant to withdraw and terminate the instructions of QSNTS and to retain Just Us Lawyers or any other legal practitioner to prosecute the Wulli Wulli claim. I accept the submission of the applicant that, in respect of a claimant application such as the Wulli Wulli claim, the effect of s 62A is that it is only the applicant who is entitled to deal with all matters arising under this Act in relation to the application. The claim group is not empowered by the Act to control the conduct of the application before the Court, including the identity of the solicitors to be instructed by the applicant. That the claim group in authorisation meeting does not have the power to terminate instructions to one firm of lawyers, and to instruct another, is clear from the decisions in Ankamuthi, Roe and Tigan.