FEDERAL COURT OF AUSTRALIA
Conlon v QGC Pty Ltd (No 2)
[2017] FCA 1641
File number: QUD 120 of 2017 Judge: RARES J Date of judgment: 13 December 2017 Catchwords: NATIVE TITLE – whether unregistered deed capable of varying Indigenous Land Use Agreement (ILUA) registered under the Native Title Act 1993 (Cth) – validity and efficacy of amendment deed - whether amendment deed supervened contractual force of registered ILUA – whether variation of registered ILUA required registration under s 24CL to be effective – whether earlier authorisation under s 251A of persons to be defined native title party to enter into original ILUA permitted majority of those persons to agree new terms to replace or vary registered ILUA – new terms not considered by native title claim group when granting authorisation – whether clause in registered ILUA permitted majority of native title party to vary it without further authorisation by claim group under s 251A
NATIVE TITLE – construction of registered ILUA – whether amendment deed was a decision required to be made “under” the ILUA
CONTRACTS – principles as to variation, amendment or replacement of existing contract by subsequent one
Legislation: Native Title Act 1993 (Cth) ss 24CD, 24CG, 24CL, 24EA, 24L, 61, 62A, 199B, 251A, 251B, Pt 2, Div 3 Cases cited: Booker Industries Pty Limited v Wilson Parking (Queensland) Pty Limited (1982) 149 CLR 600
Concut Pty Limited v Worrell (2000) 176 ALR 693
Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165
Date of hearing: 13 December 2017 Registry: Queensland Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 46 Counsel for the Applicants: Mr L Stephens Solicitor for the Applicants: Trevor Hauff Lawyers Counsel for the First Respondent: Ms E J Longbottom Solicitor for the First Respondent: Ashurst Australia Counsel for the Second, Third, Fourth, Fifth and Seventh Respondents: Mr A Preston Solicitor for the Second, Third, Fourth, Fifth and Seventh Respondents: Just Us Lawyers ORDERS
QUD 120 of 2017 BETWEEN: PATRICIA CONLON
First Applicant
ELIZABETH JOHNSTON
Second Applicant
NATALIE ALBERTS (and others named in the Schedule)
Third Applicant
AND: QGC PTY LIMITED ACN 089 642 553
First Respondent
MARGARET MCLEOD
Second Respondent
ISOBEL RABBITT (and others named in the Schedule)
Third Respondent
JUDGE:
RARES J
DATE OF ORDER:
13 DECEMBER 2017
THE COURT DECLARES THAT:
1.The deed of agreement made on or about 16 February 2015 between the first respondent, thirteenth applicant, third respondent, fourth applicant, ninth applicant, fifth respondent, second respondent, second applicant, ninth respondent and third applicant (the deed):
(a)is not an indigenous land use agreement under the Native Title Act 1993 (Cth) and has no force or effect under or in accordance with that Act; and
(b)does not vary and has no contractual or other force or effect in respect of the Barunggam, Cobble Cobble, Jarowair, Western Wakka Wakka, Yiman and QGC…
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- Case
- [2017] FCA 1641
- Decision Date
CaseChat Overview and Summary
The court reasoned that an amendment deed could not supervene the contractual force of a registered ILUA. The court held that a variation, such as the one attempted by the deed, must be an ILUA and must go through the registration process under section 24CL. However, the deed lacked authorisation under section 251A, which was necessary to qualify as an ILUA. The court concluded that the deed was not an ILUA under the Act, had no force or effect, and did not vary or impact the contractual force of the ILUA as registered. The court found no basis for making an order regarding costs under section 85A(1) of the Act.
The court’s conclusion was based on the statutory requirement that an ILUA must be registered to have contractual effect, and any variation must also be registered. The court found that the deed did not meet these requirements, and thus, it did not alter the terms of the registered ILUA. Consequently, the deed was ineffective and did not change the obligations or rights established by the original ILUA. The court’s decision underscores the importance of following the legislative process for amending registered ILUAs to ensure their validity and enforceability.
Orders
Orders of the court
1. Kathleen Ott be removed as the tenth applicant to this proceeding and added as the ninth respondent.
2. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Act creates the significance of registration of an ILUA in Subdiv E of Div 3 of Pt 2. That prescribes, relevantly, in s 24EA(1) and (2):Subdivision E – Effect of registration of indigenous land use agreements24EA Contractual effect of registered agreement(1)While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:(a)it were a contract among the parties to the agreement; and(b)all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.Note:Section 199B specifies the details of the agreement that are required to be entered on the Register.Only certain persons bound by agreement(2)To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies. (emphasis added)Procedural matters In the event, in March 2010, 14 persons signed the ILUA as representatives of various families named in the definition of the collective term “native title party”. None of the parties has raised any issue about the fact that, despite the restriction to one representative of each family in the definition of the native title party in the ILUA, in four instances, two members of one family signed, namely, Patricia Conlon and Margaret McLeod signed for the Darlo(w) family of the Western Wakka Wakka family group, Lilian Colonel and Kylie Jerome for the Jerome family of the Jarowair family group. Elizabeth Johnson and Kathleen Ott for the Waddy family of the Yiman family group, and the late Clarissa Malone (who died on 14 March 2013 but who is named as the sixth respondent), and William Davis for the Davis family of the Cobble Cobble family group. It does not appear that a representative of at least one, or perhaps more, of other family groups signed the ILUA. Ms Conlon began the proceeding as sole applicant. I required her to join as, proper and necessary parties, all the persons who signed the ILUA and the deed as members of the native title party in each document. That joinder occurred. There was some confusion at different points of the proceeding as to which of the persons that Ms Conlon joined were on a particular side of the record. I was satisfied by the evidence that Trevor Hauff gave today that the record of the proceeding needed to be corrected first, to remove Kylie Jerome as the twelfth applicant as named on the amended originating application and to add her as the eighth respondent and, secondly, to remove Kathleen Ott from the Court record as tenth applicant and add her as ninth respondent. Mr Hauff said this was because, after initially indicating to him that she was content to be named as an applicant, each of Ms Jerome and Ms Ott had ceased to have any desire to be party to the proceedings.