Goldfields Land and Sea Council Aboriginal Corporation v Minister for Indigenous Affairs
[2019] FCA 2010
•27 November 2019
FEDERAL COURT OF AUSTRALIA
Goldfields Land and Sea Council Aboriginal Corporation v Minister for Indigenous Affairs [2019] FCA 2010
File number: WAD 243 of 2019 Judge: BANKS-SMITH J Date of judgment: 27 November 2019 Date of publication of reasons: 28 November 2019 Catchwords: ADMINISTRATIVE LAW - application for interlocutory injunction - applicant previously native title representative body - where applicant not invited to apply for recognition as representative body for further period - where applicant provided with funding on transitional basis to provide native title services - where Grant Thornton appointed to oversee transition and change management - where new provider of native title services appointed - where decision made to fund new provider - where funding to applicant ceased - where judicial review sought of Minister's decision not to invite application for recognition and of delegate's funding decision - where injunction sought to compel funding only to Grant Thornton pending determination of judicial review - balance of convenience - serious question to be tried - application dismissed Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth)
Native Title Act 1993 (Cth) ss 203A, 203AD, 203B, 203BA, 203FE, Part 11, Divisions 2 and 3
Cases cited: Frigger v Trenfield [2019] FCA 1746
Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Limited [2015] FCA 460
Date of hearing: 27 November 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 136 Counsel for the Applicant: Mr DP O'Gorman SC Solicitor for the Applicant: Arnold Bloch Leibler Counsel for the Respondents: Ms CI Taggart Solicitor for the Respondents: Australian Government Solicitor ORDERS
WAD 243 of 2019 BETWEEN: GOLDFIELDS LAND AND SEA COUNCIL ABORIGINAL CORPORATION (ABN 54 489 243 524)
Applicant
AND: MINISTER FOR INDIGENOUS AFFAIRS
First Respondent
ASSISTANT SECRETARY, LAND BRANCH, DEPARTMENT OF THE PRIME MINISTER AND CABINET
Second Respondent
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
27 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The applicant's application for an interlocutory injunction is dismissed.
2.Pursuant to s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) and subject to further order, the name of the barrister who sent the email dated 22 October 2018 as included in the affidavit of William John Eldridge filed 18 October 2019 is suppressed and may not be published and is to be redacted in any copy of the transcript other than that provided to the Court or the parties.
3.Pursuant to r 1.32 and r 2.32 of the Federal Court Rules 2011 (Cth), until further order, no person other than a party to the proceeding or their legal advisors may inspect any of the affidavits or submissions filed in this proceeding.
4.Pursuant to s 136 of the Evidence Act 1995 (Cth), the evidence tendered at the hearing of 27 November 2019 is taken to have been tendered solely for the purpose of that hearing.
5.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
On 27 November 2019 I heard an application for urgent interlocutory relief. I made orders that day and now publish my reasons.
The application was made pending the hearing of a judicial review application that is listed before me for two days commencing on 22 January 2020.
Background
The applicant, Goldfields Land and Sea Council Aboriginal Corporation, was formerly the native title representative body for the Goldfields region of Western Australia.
The Native Title Act 1993 (Cth) provides for the recognition by the Minister of a native title representative body for an area (s 203AD), but also provides that funding may be made available to a person or body to carry out the functions of a representative body (s 203FE). Such a person or body is generally referred to as a native title service provider.
The applicant was appointed by the then Minister for Indigenous Affairs as the recognised representative body for the Goldfields region by legislative instrument made on 5 May 2016, being the Native Title (Recognition as Representative Body - Goldfields Land and Sea Council) Instrument 2016.
The area of the Goldfields region is described in schedule 1 to the Instrument.
The period of recognition was from 1 July 2016 until 30 June 2018. Accordingly, on 1 July 2018 the applicant ceased to be recognised as the representative body for the Goldfields region.
On 5 July 2018 the Minister decided not to invite the applicant to apply for recognition as the representative body for the Goldfields region for a further period (NTRB decision).
In order to avoid disruption to service delivery to native title holders and claimants, the second respondent's delegate (Wayne Beswick) made funding available to the applicant pursuant to s 203FE(1) of the Act to perform the functions of a representative body for a determined period. The applicant's funding ceased on 30 June 2019. I note that funding falls within the remit of the Land Branch of the Department of the Prime Minister and Cabinet.
The applicant claims that on 22 March 2019 the delegate of the second respondent decided not to make further funding available to the applicant and to instead make alternative arrangements (Funding decision).
In the substantive proceedings the applicant seeks judicial review of the NTRB decision and of the Minister's conduct in making the NTRB decision, and seeks judicial review of the Funding decision and of the second respondent's conduct in making that decision.
The judicial review application is made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and the Judiciary Act 1903 (Cth). The applicant seeks relief which, in summary, would set the NTRB decision and the Funding decision aside and require the matters the subject of those decisions to be considered again by the decision maker according to law.
The respondents deny the Funding decision was in fact a decision capable of judicial review under the ADJR Act, and have filed a notice of objection to competency in that regard. That issue is to be resolved as part of the main proceedings.
The relevant Commonwealth agency (now the National Indigenous Australians Agency (NIAA)) plans to enter into a funding agreement with a third party, Native Title Services Goldfields (NTSG), to provide native title services until 30 June 2020. The funding agreement is ready for execution and the parties have indicated that it is to be executed in November 2019. The applicant seeks an injunction to prevent execution of the funding agreement by the relevant agency pending the outcome of its application for judicial review.
The main proceedings
The NTRB decision
Part 11 of the Act provides for representative Aboriginal/Torres Strait Islander bodies. Representative bodies, generally speaking, have the function to help native title claimants lodge and pursue their native title claims and to represent them in negotiations.
Section 203A(l) of the Act relevantly provides that:
203A Inviting applications for recognition
(1) The Commonwealth Minister may, in writing:
(a)invite applications from eligible bodies for recognition as the representative body for an area; or
(b)invite an eligible body to make an application for recognition as the representative body for an area.
At the time, the then Minister (Nigel Scullion) administered Part 11 of the Act. It is not in issue that the applicant was an eligible body within the meaning of s 203A.
Division 3 of Part 11 of the Act provides for the functions of representative bodies. Section 203B(l) of the Act provides that a representative body has the following functions:
(a) the facilitation and assistance functions referred to in section 203BB;
(b) the certification functions referred to in section 203BE;
(c) the dispute resolution functions referred to in section 203BF;
(d) the notification functions referred to in section 203BG;
(e) the agreement making function referred to in section 203BH;
(f) the internal review functions referred to in section 203BI;
(g)the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.
Section 203A(l) of the Act does not expressly confine the exercise of the Minister's discretion to invite an eligible body to make an application to be a representative body. However, the Minister said that he took the view that other decisions within Division 2 of Part 11 of the Act required him to consider whether an eligible body satisfactorily performs its existing functions (for example, a decision to recognise a representative body by instrument for a region under s 203AD(l) of the Act). Therefore, the Minister stated that he considered that matters related to whether the applicant was satisfactorily performing representative body functions were relevant.
In particular, the Minister considered whether the applicant satisfactorily performed representative body functions in accordance with s 203BA of the Act.
Section 203BA of the Act provides:
Functions to be performed in a timely manner
(1)A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:
(a)the time limits under this Act; or
(b)time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions.
Maintenance of organisational structures and processes
(2) A representative body must perform its functions in a manner that:
(a)maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and
(b)maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and
(c)ensures that the structures and processes operate in a fair manner, having particular regard to:
(i)the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and
(ii)the extent to which its processes involve consultation with those Aboriginal peoples or Torres Strait Islanders; and
(iii)its procedures for making decisions and for reviewing its decisions; and
(iv)its rules or requirements relating to the conduct of its executive officers; and
(v)the nature of its management structures and management processes; and
(vi)its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.
By letter dated 12 July 2018 the Minister provided a statement of reasons for his decision not to invite the applicant to make an application for recognition.
Those reasons reveal that the Minister obtained two independent reports from the Nous Group, one entitled 'The Goldfields Land and Sea Council: Performance Report' dated 2 March 2018 and 'Comparative Performance of Five NTRB-SPs' dated 2 March 2018. He also received submissions from the applicant.
Relevantly, and with regard to s 203BA, the Minister considered that by not taking reasonable steps, by allowing delays in finalising research and by failing to meet deadlines agreed with the Department, the applicant had not used its best efforts to research and prepare native title applications in a timely manner.
As to other facilitation and assistance functions, the Minister concluded that delays in finalising a 'strategic research program' delayed the applicant in filing any new native title applications, which in turned delayed the applicant in assisting persons who may hold native title in mediations and proceedings relating to native title applications. The Minister noted that no new native title applications had been registered in the last seven years.
The Minister also concluded that the applicant would not perform its certification functions in relation to native title applications until the strategic research program was finalised. He considered that during the period 2015 to 2018, delays in finalising the strategic research program may have resulted in delays in resolving disputes amongst potential native title holders. The Minister also considered that the delays hindered the applicant's performance of its notification functions in that period in relation to persons who may hold native title, and have led to delays in finalising identification of persons who may hold native title within the Goldfields region.
The Minister concluded as follows (with 'GLSC' being references to the applicant):
79.I have concluded that GLSC is not satisfactorily performing one of its facilitation and assistance functions relating to researching and preparing native title applications. The lack of timeliness in performing this function has impacted GLSC's ability to file native title applications. In this regard, I note that GLSC has not filed any new applications since 2011.
80.Furthermore, the delays in finalising the Strategic Research Program have delayed GLSC's performance of some of its other facilitation and assistance functions, its certification functions, its dispute resolution functions, its notification functions, and one of its other functions in relation to persons who may hold native title. This has resulted in (i) delays in assisting persons who may hold native title to make native title applications; (ii) delays in assisting persons who may hold native title with matters provided in paragraph 203BB(1)(b) of the NT Act; (iii) delays in certifying native title applications; (iv) delays in resolving disputes; (v) persons who may hold native title not being notified of future act notices; and (vi) delays to identification of who may hold native title.
81.There is considerable distrust towards GLSC from persons who may hold native title in the GLSC area and stakeholders 'do not understand and question GLSC's approach to researching claims over the area covered by the dismissed Wongatha claim' (page 44 of the Nous report). At Annexure 7 to the Submission (responding to Nous Recommendation 10), GLSC acknowledged that it needs to do more in the area of engagement and communication with potential native title holders about its strategies and plans for future claim formulation.
82.I note GLSC's comments that, under subsection 203B(4) of the NT Act, it is empowered to determine the priorities it will give to performing its functions under Part 11 of the NT Act (at paragraphs 5.23-5.24 and paragraph 13.6 of the Submission). However, I consider that rigidly adhering to the policy of completing the Strategic Research Program prior to performing certain representative body functions has resulted in GLSC delaying the performance of those functions in relation to persons who may hold native title within their area. I consider that assisting persons who may hold native title is one of the principal purposes of a representative body. As a result of GLSC's delays, these persons have not been provided with services from GLSC in the period 2015-2018. For these reasons, I do not consider that GLSC is satisfactorily performing representative body functions.
Conclusion
83.I have considered all the material before me.
84.Having considered this material, I do not consider that GLSC is satisfactorily performing representative body functions. Accordingly, 1 have decided to not invite GLSC, under paragraph 203A(1)(b) of the NT Act, to make an application for recognition as the representative body for the area described in Schedule 1 to the Native Title (Recognition as Representative Body - Goldfields Land and Sea Council) Instrument 2016 for a period after 30 June 2018.
The Funding decision
Although the recognition of the applicant as a representative body ceased with effect from 1 July 2018, the delegate of the second respondent made funding available to the applicant for the period 1 July 2018 to 31 March 2019 under s 203FE(1) of the Act. That section provides:
The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform, in respect of a specified area:
(a) all the functions of a representative body; or
(b) specified functions of a representative body;
either generally or in relation to one or more specified matters.
From September 2018 the Department commissioned reports from a consultant, Bill Lawrie, who has held roles as Acting Regional Coordinator at the National Native Title Tribunal, and has held management and consulting roles with the South West Aboriginal Land and Sea Council. Mr Lawrie provided a report and recommendations following an assessment of the applicant's performance, taking into account certain milestones.
The Department also procured the services of Greg Roche as a consultant to assist with providing advice on native title service delivery, with a focus on stakeholder consultation and communication.
The applicant provided responses to the various reports prepared by Mr Lawrie and Mr Roche.
By letter dated 22 March 2019 the delegate informed the applicant that he had decided to make a further sum available to it under s 203FE(1) of the Act for the period 1 April 2019 to 30 April 2019. The delegate's letter records the following:
I, as delegate of the Secretary, made funding available, under section 203FE of the Native Title Act 1993 (the Act), to the Goldfields Land and Sea Council Aboriginal Corporation (GLSC) to generally perform representative body functions in respect of the area described in Schedule 1 to the Native Title (Recognition as Representative Body - Goldfields Land and Sea Council) Instrument 2016 (Goldfields representative region) until 31 March 2019. As you are aware, I have been considering whether to make funding available to the GLSC from 1 April 2019. Thank you for your responses of 19 December 2018 and 1 February 2019 setting out the GLSC's proposals to address priority areas for reform.
I have considered the materials listed in Attachment 1 when considering these matters. Having considered this material, I am not satisfied that GLSC's performance of representative body functions in the Goldfields region is likely to significantly improve. I will be looking to make alternative arrangements.
I have decided to make $388,750 (GST exclusive) available, under subsection 203FE(l) of the Act, to the GLSC for the purpose of enabling the GLSC to generally perform, in respect of Goldfields representative region, all the functions of a representative body from 1 April 2019 to 30 April 2019. During this time, the Department will investigate options to make funding available, under section 203FE of the Act, to another person or body to perform representative body functions in respect of Goldfields representative region. Depending on the outcome of these investigations, I anticipate that I may make further short term funding available to GLSC to facilitate an orderly transition of representative body functions to another provider, with a view to transitioning the functions, if possible, by 1 July 2019.
This is the letter that the applicant says comprises the Funding decision.
As the 22 March 2019 letter anticipated, further interim funding was provided until 30 June 2019 (see reasons immediately below).
On 18 April 2019 the delegate provided his reasons for his decision under s 203FE of the Act about whether to make funding available to the applicant. The conclusion to the reasons reads as follows:
96.Overall, I do not consider that the GLSC has sufficiently addressed the issues identified by Mr Lawrie. This is due to: (i) the lack of specificity in the proposals; (ii) the lack of concrete actions to date; and (iii) as many of the proposals do not go further than standard practice, the GLSC's proposals demonstrate an insufficient commitment to change from previous practices. The GLSC has not demonstrated a sense of urgency about the reform process and does not appear to have made a concerted effort to implement change. It is difficult to be persuaded momentum will be maintained under current governance and management arrangements. Accordingly, I consider that the GLSC's performance of representative body functions is unlikely to significantly improve in the long-term.
97.Therefore, I would like to assess whether another person or organisation can be identified who can better perform the functions of a native title representative body for the Goldfields representative region.
98.To ensure that there is uninterrupted performance of representative body functions in the Goldfields representative region whilst I make this assessment, I have decided to make funding available to the GLSC for the purpose of enabling the GLSC to generally perform, in respect of Goldfields representative region, all the functions of a representative body from 1 April 2019 to 30 April 2019. I also note that, on 29 March 2019, I decided to make a further $777,500 available to the GLSC for the purpose of enabling the GLSC to generally perform, in respect of the Goldfields representative region, all the functions of a representative body until 30 June 2019.
99.I have also decided that it would be appropriate to impose conditions on this funding to:
- facilitate an orderly transition; and
-ensure that the funding made available will be used for proper purposes whilst I consider the future of the delivery of native title services in the Goldfields representative region.
The agreement to provide the additional funding was recorded in a Variation Agreement dated 1 April 2019 executed by the applicant as 'Provider' and the Department. Relevantly, the Variation Agreement states, amongst other things, that:
(a)'The Provider acknowledges that it is the Commonwealth's intention to transition the project's [business as usual function] to alternative arrangements. The Provider will be funded to prepare the [business as usual function] for a smooth and orderly transition …';
(b)'If and when the Commonwealth identifies a suitable alternative provider to whom the project and related services may be transitioned and if it necessary in order to facilitate such a transition the Provider must allow access to copies of confidential information to the Commonwealth or its nominated alternative Provider';
(c)'The Provider acknowledges that the Commonwealth intends to transition the Provider's functions of a native title representative body under the Native Title Act to an alternative provider if and when a suitable candidate is identified';
(d)'The Commonwealth will appoint a change manger to whom the Provider must report in relation to all the Provider's transition obligations'; and
(e)'The Provider must perform certain transition functions in relation to the project, including, in relation to any authorised claims, arranging a meeting of claimants to advise on the process of transition to an alternative provider'.
Funding for provision of services to the Goldfields region after Funding decision
On 10 April 2019 an invitation for expressions of interest to become a native title service provider for the Goldfields region was advertised. The applicant was aware of the process as the chair wrote to the Minister on 5 June 2019 referring to it.
In May 2019 the Department appointed Grant Thornton to act as change manager to oversee the transition of delivery of native title services from the applicant to an alternative provider.
During June 2019 the delegate corresponded with the applicant about transition issues and the proposal to appoint Grant Thornton as an interim native title service provider.
On 1 July 2019 the effective responsibility for matters arising under the Act in relation to native title representative bodies and native title service providers passed from the Department to the NIAA. The chief executive officer of the NIAA, or their delegate, is now the person responsible for making decisions under s 203FE(1) of the Act: Acts Interpretation Substituted Reference Order 2017 (as amended by the Acts Interpretation Amendment Substituted Reference Order 2019) and the 'Order to Establish the National Indigenous Australians Agency as an Executive Agency dated 29 May 2019' gazetted on 30 May 2019.
On 1 August 2019 Grant Thornton was funded as a native title service provider for an interim period ending 30 November 2019, and subject to certain limitations.
The applicant did not submit an application to be considered as the native title service provider for the period from 1 July 2019. However, an expression of interest and application was received from a new organisation called Goldfields Native Title Services Ltd which proposed to utilise the existing infrastructure, records and staff of the applicant. Goldfields Native Title Services Ltd was not successful in its application.
On 2 August 2019 the NIAA announced by media release that the process to select a new provider for provision of native title services in the Goldfields region was complete, that 10 applications were received and that the successful applicant was Central Desert Native Title Services Ltd (CDNTS) which proposed the establishment of a new organisation for the Goldfields region.
CDNTS established a new organisation known as Native Title Services Goldfields (NTSG) (the entity is in fact a company limited by guarantee, registered on about 9 August 2019). Its directors include Terry Grose (Chair), Dr Carolyn Tan, the Hon Fred Chaney OA and aboriginal directors Sharon Reynolds and Kado Muir.
On 25 September 2019 CDNTS and NIAA executed a Project Schedule Agreement for funding for native title services for the Goldfields region. The Project Schedule Agreement provides, relevantly that:
(a)a grant is made to CDNTS for the establishment of NTSG;
(b)CDNTS to deliver the project described as 'establish Native Title Services Goldfields' with the fundamental requisites to build capacity to undertake native title service provider functions in the Goldfields region. The funding is for salaries for senior staff, specifically the chief executive officer and the principal legal officer, and for the establishment of office accommodation and associated setup costs; and
(c)expenditure will be in line with an approved budget which provides for sums for the purpose of, amongst other things, travel and meetings, consultants, both legal and corporate, administration costs and accommodation including fit‑out and the salaries of the chief executive officer and principal legal officer.
As detailed below, the NIAA has indicated it is about to enter into an agreement with NTSG under which it will fund NTSG to provide native title services. It appears that the applicant became aware that the proposed funding agreement with NTSG was about to be signed upon receipt of an affidavit of Ryan Bulman filed in the main proceedings on 5 November 2019. Mr Bulman is a member of the senior executive service and group manager of the Housing, Land and Culture Group in the NIAA.
The injunction application
On 14 November 2019 the applicant filed an urgent interlocutory injunction application seeking, relevantly, the following relief:
The Respondents are restrained until final determination of this proceeding or further Order of this Court from doing anything to further recognise pursuant to the Native Title Act 1993 (Cth) (NTA), or entering into any funding agreement, or otherwise providing any funding to, any body or person, including, but not limited to, Central Desert Native Title Services Limited (ABN 53 124 921 811) or NTS Goldfields Ltd (ABN 54 635 417 042) or Native Title Services Goldfields (ABN 54 635 417 042), other than Grant Thornton Australia Limited (ABN 41 127 556 389), for the performance of any of the functions of a representative body under Part 11 of the NTA, particularly sections 203AD and 203FE of the NTA, in respect of the area described in Schedule I of Native Title (Recognition as Representative Body - Goldfields Land and Sea Council) Instrument 2016 (Cth).
The applicant's contention, expressed generally, is that the second respondent should fund Grant Thornton exclusively and until the main proceedings are determined, rather than provide funding to any other entity to provide native title services.
It is reasonable to assume that the applicant perceives that the prospect of it again being invited at some point in the future to be recognised as the representative body for the Goldfields area or being provided with funding to perform native title services for that area would be enhanced if NTSG were not established as the provider in that area. Otherwise it is not clear on what basis the injunction assists the applicant, as the grant of the proposed injunction would not direct or compel Grant Thornton to retain the applicant or facilitate payment to it.
The grounds of the judicial review application
I have attached by way of schedule to these reasons the grounds relied upon by the applicant as set out in its amended originating application.
The applicant filed submissions in the main proceedings on 21 November 2019 (main submissions) and referred to those submissions for the purpose of the 'serious question to be tried' aspect of its interlocutory application (see principles below). The main submissions were wide ranging. For the purpose of the present application, counsel directed my attention to what were considered by the applicant to be the five main or stronger aspects of its claim. These were the matters addressed during oral submissions and responded to by counsel for the respondents. They are addressed further below. The first relates to the decision of the Minister (that is, the NTRB decision). The balance relate to the decision of the second respondent's delegate as to funding (that is, the Funding decision).
In summary, these matters are:
(1)The Minister failed to have regard to an email from the applicant attaching an operational plan.
(2)The delegate received prejudicial material by way of comment from a legal advisor, said to be relevant to a denial of natural justice and to the delegate's conduct.
(3)There was impermissible conduct by the delegate as revealed by email exchanges between a consultant and the delegate's office.
(4)The issue of the management of the applicant was wrongly taken into account by the delegate as it was an irrelevant consideration.
(5)The Minister's views were wrongly sought for or on behalf of the delegate during the funding consideration process when the funding decision was a decision solely for the delegate.
Principles - interlocutory injunctions
The principles to be applied in circumstances where an applicant seeks interlocutory relief are well-established: see, for example, Edelman J's summary in Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Limited [2015] FCA 460 at [26]‑[34]. They were also recently collected by Jackson J in Frigger v Trenfield [2019] FCA 1746 as follows:
[6] The principles applicable to interlocutory injunctions are well established.
(1)If interlocutory relief is to be sought, it should be sought promptly and any delay in applying for injunctive relief should be adequately explained: Baker & McAuliffe Holdings Pty Ltd t/as JSB Lighting v Carey [2018] FCA 1972 at [62].
(2)Where an applicant seeks interlocutory relief, it is necessary to demonstrate that:
(a)there is a serious question to be tried as to the applicant's entitlement to relief;
(b)the applicant is likely to suffer injury for which damages will not be an adequate remedy; and
(c)the balance of convenience favours the granting of an interlocutory injunction.
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J).
(3)The applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O'Neill at [65] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [9] (Beech J).
(4)The likelihood of success required is dependent upon the nature of the right being asserted and the practical consequences that are likely to flow if the injunction is granted: ABC v O'Neill at [71]; Twinside at [9]; Apotex Pty Ltd v Cipla Limited [2017] FCA 1627 at [40] (Beach J).
(5)The resolution of the question of where the balance of convenience and justice lies requires the court to exercise a discretion: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [65] (Dowsett, Foster and Yates JJ). The court will weigh up the injustice which might be suffered by the respondent if the injunction is granted and the applicant later fails at trial, against the injustice which might be suffered by the applicant if the injunction is not granted and the applicant later succeeds at trial: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Twinside at [11].
(6)There are questions as to whether the requirement that damages are not an adequate remedy is an independent requirement or whether it is relevant to the broader question of the balance of convenience: see e.g. National Australia Bank Ltd v Joyce [2012] WASC 224 at [38]‑[41] (Edelman J). In any event, the test may be expressed as whether the applicant would, in all material respects, be in as good a position if they were confined to a remedy of damages as they would be if an injunction were granted: Samsung Electronics at [62].
(7)The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance: Samsung Electronics at [67]. As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54‑55; Twinside at [11].
(8)Mandatory interlocutory injunctions are uncommon, partly because the usual purpose of the interlocutory injunction is to preserve the status quo, which is inapplicable to mandatory injunctions. Mandatory injunctions require a party to take some positive step or to undo what has been done in the past: Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 at 483 (Kennedy J).
(9)The features which justify describing an injunction as mandatory will usually also have the consequence of creating a greater risk of injustice if it is granted rather than withheld at the interlocutory stage, unless the court feels a high degree of assurance that the applicant would be able to establish the relevant right at a trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680‑681 (Hoffmann J); see also Cash Converters at 483.
(10)However these matters concerning characteristics of mandatory injunctions are best understood as guidelines rather than independent principles: Films Rover at 680‑681. Ultimately the question is as to the balance of the risk of injustice. In considering that balance the court must take into account the nature and consequences of the particular injunction sought: Twinside at [12].
In assessing whether to exercise the discretion to grant injunctive relief, it will also be relevant to consider whether the moving party is prepared and able to give the usual undertaking as to damages (see the Court's 'Usual undertaking as to damages' practice note GPN‑UNDR').
Balance of convenience
The respondents' evidence
Mr Bulman deposed to the current position with respect to funding for the Goldfields region. Mr Bulman deposed as follows:
(a)it is anticipated that a funding agreement for funding under s 203FE(1) of the Act will be agreed between NTSG and NIAA in or shortly after November 2019 and to cover the period for the remainder of the 2019/2020 financial year;
(b)the funding agreement will be put in place for that period in order to align it with funding agreements generally in the sector which expire at the end of the 2019/2020 financial year;
(c)NIAA's general policy is to fund only a single provider for each representative Aboriginal/Torres Strait Islander body area, and in accordance with that policy it does not intend to appoint more than one native title service provider in the Goldfields region; and
(d)the Minister has not indicated any intention to invite an organisation to apply for recognition in the Goldfields region as a representative body under s 203A of the Act. The NIAA does not currently have any intention to brief the Minister about inviting an organisation to apply for recognition. The NIAA does not distinguish between recognised representative bodies and service providers in its funding arrangements.
Anthony Bevan is a partner in the Indigenous Advisory group at Grant Thornton. He has been involved in the change management process and therefore has knowledge of the position of Grant Thornton and the applicant, and the role of NTSG. He deposed as follows:
(a)although Grant Thornton is funded by the NIAA until 30 June 2020, it is not funded to perform all functions of a native title service provider and is using NIAA funding to 30 June 2020 only for transitional purposes;
(b)in the course of his role at Grant Thornton, he regularly consults with both the applicant and NTSG regarding the transition to a new native title service provider;
(c)he was informed by Wayne Beswick (the second respondent's delegate) that he made a decision on 13 November 2019 to provide funding to NTSG under s 203FE(1) of the Act; and
(d)he understands from discussions with David Lanagan, the chief executive officer of NTSG, that a funding agreement between the NIAA and NTSG has been prepared and was due to be signed by NTSG during the week commencing 18 November 2019. He was informed by Mr Beswick that he, on behalf of NIAA, proposed to sign the funding agreement after NTSG had signed it.
During a case management hearing on 22 November 2019, I inquired of counsel for the respondents as to why there was such urgency for Mr Beswick to sign the funding agreement with the NTSG in circumstances where this injunction application was pending before the Court.
Counsel informed me (in effect) that at minimum there were issues with respect to retaining premises in Kalgoorlie and that there may also be issues with respect to retention of employees. I accorded counsel the opportunity to take instructions as to whether the delegate would await the hearing of 27 November 2019 before signing any funding agreement so that the injunction application could be determined. Counsel was able to obtain such instructions. However it was on the basis that the delegate's assurance to defer signing only extended to the hearing date of 27 November 2019 that I indicated I would give orders at the end of the hearing of the interlocutory application with reasons to follow later.
Evidence as to the prejudice to the respondents (and interested parties) if a funding decision is deferred was also provided by Mr Bevan.
By way of background, it should be noted that there are currently three native title claims before this Court for the Goldfields region. They are referred to as the Nyalpa Pirniku, Tjalkadjara and Mirning Part B claims.
Mr Bevan's evidence is that as part of the transition to NTSG providing native title services, he has organised four community information sessions in the Goldfields region. Those meetings are to be held in Kalgoorlie (3 December 2019), Leonora (4 December 2019), Esperance (5 December 2019) and Eucla (8 December 2019).
During that period he has also organised meetings of the Nyalpa Pirniku claim group in Leonora on 4 December 2019, the Tjalkadjara claim group in Leonora on 4 December 2019 and the Mirning People in Eucla on 8 December 2019. The purpose of those meetings is to meet with the NTSG principal lawyer (Robert Powrie) and chief executive officer (Mr Lanagan) to discuss representation for native title matters and to make decisions about NTSG representing the native title claim groups (both Mr Powrie and Mr Lanagan have already been retained by NTSG). More particularly, the discussions will include considering resolutions to authorise NTSG to legally represent the native title applicants, including authorisations for legal representation on the record in relation to the three claims. Those meetings have already been advertised and the advertisements have also been distributed to Aboriginal communities and organisations in South Australia and the Goldfields region.
Mr Bevan said that Grant Thornton is funded to organise and conduct those meetings and he will be attending the community information and authorisation meetings together with the chief executive officer and principal legal officer of NTSG.
Mr Bevan also deposed to his understanding that limited funding has already been provided by the NIAA to CDNTS to meet the initial costs for the establishment and setup of NTSG, including the salaries of the NTSG chief executive officer and principal legal officer and the costs of their attendance at the meetings. However, if the funding agreement between NTSG and NIAA is not executed before the authorisation meetings, NTSG would not have the resources required to represent the native title applicants going forward and it would be necessary to withdraw the proposed resolutions regarding representation in the claims for the time being.
If no decisions by way of resolutions are made by those claim groups at the December 2019 meetings authorising NTSG to represent the native title applicants in the Court proceedings, then the likely result would be that there would be no representation for them in the interim period. Mr Bevan deposed to the fact that the current solicitor on the record in each of those claims, Graham Castledine, has been employed as a consultant by the applicant but with Grant Thornton paying his costs and that his role was to act during a transitional period until a new native title service provider was appointed. Mr Castledine has given notice of his intention to terminate the consultancy agreement with effect from 16 December 2019. The evidence suggests he made the decision to resign some time prior to 14 November 2019 and had intended to resign with effect from 15 November 2019, but was persuaded by Mr Bevan to remain in that role until 16 December 2019.
According to Mr Bevan, after mid‑December 2019 the next available opportunity to hold claim group meetings to authorise legal representation would not be until February 2020 due to cultural reasons, and there is currently no viable alternative person who could act as a solicitor on the record. Mr Bevan deposed to difficulties he has had in the past in identifying solicitors who were able to represent the claimants in the relevant claims, as he has twice undertaken that task. On those occasions he contacted some ten barristers and solicitors who self‑identify as having native title experience before finding lawyers who were available, had sufficient expertise and were not conflicted.
Mr Bevan says that if the NTSG is not authorised to represent the native title applicants in the claims then there is currently no viable alternative. Grant Thornton is not authorised to be a solicitor on the record.
Mr Bevan also deposed to his belief based on his understanding of the applicant's finances and current employees that it does not have financial capacity to appoint new legal representation for the claim groups, nor does it have the operational capacity to provide instructions on legal matters or undertake anthropological work or organise logistics. Mr Bevan says the source of his knowledge as to the applicant's financial position is that until October 2019 Grant Thornton had access to the applicant's financial systems and assisted it to finalise its 2018/2019 financial statements as part of Grant Thornton's change management role.
Mr Bevan also says that the progress of the claims before the Court could be significantly impacted without legal representation. He says this because he is aware that the Court is seeking to ascertain whether the claims can be resolved by consent determinations in about April to June 2020. Such a timetable, although not the subject of particular Court orders, means that it is unlikely that the claims will be progressed if the December 2019 meetings are postponed as the claimants are likely to be unrepresented until at least February 2020 when further authorisation meetings could be convened.
Mr Bevan says that he has met many of the people who comprise the native title applicants in the various claims and that they are largely elderly people with limited resources who are unlikely to have capacity to independently negotiate consent determinations without a legal representative.
Mr Bevan also provided details as to the likely cost of convening the meetings in December 2019, being approximately $35,000 (this is based on advertising costs, travel assistance, venue hire, food and logistical support). I note that if the meetings must be postponed, in terms of costs thrown away, the most obvious loss is likely to be that of advertising costs ($9,900) as the meetings would need to be re-advertised.
Mr Bevan gives evidence at a very general level of other potential detriment if funding to NTSG is delayed. In particular, he refers to the fact that traditional owners have expressed an interest in progressing claims which are not yet the subject of a native title application or determination. Mr Bevan has been informed by Mr Lanagan that NTSG's work plan includes the identification and progress of new native title claims in the Goldfields region. Mr Bevan says he has attended public meetings at which Mr Lanagan has publically stated that there are a number of areas within the Goldfields region where there is strong evidence to support new native title claims.
Mr Bevan says that he understands from discussions with Mr Lanagan that NTSG has communicated with a potential senior anthropologist as well as having had discussions with other potential employees. This evidence supports an inference that NTSG is in a position to be ready, willing and able to undertake its tasks as a native title service provider.
Further affidavits relied upon by the respondents are those of Robert Powrie, the solicitor retained by NTSG. Mr Powrie says that he has been appointed as the principal legal officer of NTSG with effect from 4 November 2019 on a six‑month contract. Mr Powrie says that until the funding agreement is executed he is limited in the functions that he can perform as the principal legal officer, and in particular that he wishes to discuss representation in native title matters at the meetings scheduled to take place between 4 December 2019 and 8 December 2019. He says that his role is significantly curtailed and he cannot seek instructions to represent the native title applicants without the anticipated further funding in place.
Mr Powrie says he has also considered (in response to a suggestion made by the applicant and conveyed to him by the respondents' solicitors) whether, if Grant Thornton were funded to retain him as a consultant, he would act as a consultant lawyer for the applicant. He says he is unwilling to do so and also noted that he would need permission from NTSG to provide legal services other than in accordance with his employment by NTSG.
Applicant's evidence
The evidence on behalf of the applicant was given by William Eldridge. Mr Eldridge is no longer employed by the applicant, but he was formerly its Government Liaison, Strategic Policy and Special Projects officer.
The applicant says that the second respondent has engaged Grant Thornton to perform the functions of a native title representative body and that its engagement has been extended until 30 June 2020. Therefore, it submits, Grant Thornton could work with the applicant to continue to allow the applicant to carry out native title service provider functions.
The applicant says that if appropriate funding and/or recognition is not provided to the applicant, it may be wound up with significant consequences. It says that the 'GLSC Ranger Project' could be wound up with a loss of Aboriginal employment.
It says that if appropriate funding and/or recognition is not provided, the applicant may risk losing its status as a registered charity with the Australian Charities and Not-for-profits Commission, as it may no longer be able to demonstrate to the ACNC's satisfaction that it is acting in accordance with its main objectives. It says that damages would be no compensation for the adverse outcome that would be suffered if the injunction is not granted and if it is not reinstated to a role as a representative body or service provider.
Mr Eldridge says that there is no reason why dealings with NTSG cannot be put on hold pending the determination of the substantive judicial review proceedings. It says that it is not a complicated process to employ a new legal representative for the claimants for the purpose of the Court proceedings and that it would be open to Grant Thornton to engage a solicitor on the record, just as it would be open to Grant Thornton to employ those employees who are presently contemplating employment with NTSG.
Consideration
I accept that there will be some direct loss to NTSG if it is unable to proceed with the meetings that have already been convened with stakeholders in December 2019. There will be the cost of re-advertising plus meeting any costs that relate to cancellation/re‑convening. I also accept that those costs might not be particularly large in relative terms, but the applicant has not provided any undertaking as to damages and through its counsel frankly observed before me that it is in a parlous financial state. I should add that counsel indicated that the applicant was willing to provide an undertaking as to damages, but it would seem none has been provided. It will be necessary to reconvene the meetings with claimants at some point in the future in order to obtain instructions for legal representation, and that reconvening will be an unnecessary cost incurred as a result of any injunction.
NTSG has already secured the services of Mr Powrie as its current principal legal officer and for a limited contractual term, being until around May 2020. That time coincides with the time during which it is hoped that consent determinations in the current proceedings will be significantly advanced. If an injunction is granted, NTSG will not be able to fully utilise Mr Powrie's services despite the basis upon which he has been retained. His role would, it seems, be redundant if injunctive relief is granted.
I am concerned about the impact on other third parties to these proceedings whose position will be directly affected by the grant of injunctive relief. Those third parties include NTSG, and persons who may be employed and anticipate being employed by NTSG forthwith.
However, more importantly I am concerned as to the position of the native title claimants who are in the course of prosecuting their native title claims and are highly likely to be left in the position that they are unrepresented until, at the earliest, February 2020. Further, I do not dismiss the potential effect of delay on persons who have not yet made applications but are seeking to make native title determination applications in the Goldfields region. Their position will not be advanced until funding is secured and Mr Powrie is able to commence the work he has been retained to undertake.
I am not satisfied that alternative arrangements for legal representation can be put in place, as suggested by the applicant. It was unclear on what basis it was suggested that the delegate might be obliged to provide funding to Grant Thornton for that purpose and it was also unclear on what basis Grant Thornton would be able to identify and appoint new lawyers in any realistic period. Mr Castledine's retirement from his position is imminent. The suggestion that alternative arrangements can be put in place in a timely manner is speculative.
In considering the balance of convenience, I also take into account the delay on the part of the applicant in bringing the application for injunctive relief. The steps undertaken by the NIAA, CDNTS and NTSG may not have been so advanced and so the balance of convenience may have weighed differently had an application been brought at an earlier time.
The conduct of the second respondent in preparing to enter into a funding agreement should have been anticipated by the applicant from the time of the advertising for expressions of interest to become a native title service provider.
Although the applicant received funding to carry out native title services after it was no longer recognised as a representative body, it was expressly clear that it was funding for a transitional period and only on an interim basis.
From at least March 2019 (the Funding decision) the applicant was on notice that the second respondent was seeking to engage an alternative services provider.
From at least August 2019 (media release) the applicant was on notice that the process to select a new native service title services provider was complete and that the successful applicant was CDNTS which proposed the establishment of a new organisation.
It has been aware since on or before 18 October 2019 (media release) that NTSG was to be established to perform the functions of a native title service provider in the Goldfields region.
Despite those matters the applicant did not seek injunctive relief until 14 November 2019.
Therefore, the applicant brought its application late and only after the transitioning and appointment steps were significantly advanced.
It may well be that the catalyst for seeking relief was the realisation based on the affidavit of Mr Bulman that execution of a funding agreement was pending. However, that can hardly have been a surprise to the applicant in light of the prior indications that the second respondent proposed to engage with third parties. Furthermore, I note that the applicant says that it did not bring an application because it assumed that there would not be a change in circumstances pending resolution of the main proceedings. There is nothing to suggest such assumption arises out of anything done by the respondents and, furthermore, it would seem there was no sensible basis for such an assumption in light of the disclosed steps being undertaken by the delegate to identify and retain a new service provider.
I have also taken into account the matters that the applicant relies upon as to its own position. I am not persuaded that the apparently precarious financial position of the applicant would be altered or ameliorated by the grant of the proposed injunctive relief. The proposed injunction does not direct or inevitably lead to a conclusion that the applicant will receive funding to carry out the services if the funding is not provided to the NTSG and is provided only to Grant Thornton. The fact that the applicant says it is willing to carry out such services does not compel Grant Thornton to engage it. The matters deposed to by Mr Eldridge to the effect that he has concerns about the applicant being wound up are not matters that will be remedied by an injunction.
The applicant is not now carrying out native title services in the Goldfields region, has not been doing so for some months, and therefore does not need to be funded to do so.
The suggestion that the Ranger program would be prejudiced absent injunctive relief was not supported by the evidence. The applicant was unable to point to evidence that indicated that the Ranger program was funded under s 203FE funding or was otherwise affected by the Funding decision.
The effect of a cessation of funding under s 203FE on the applicant's charitable status was the subject of submission by the applicant, but there was no evidence of any communications with the appropriate body or any real evidence as to other funding utilised or tasks undertaken by the applicant.
I am not satisfied that the applicant has established that the refusal to grant injunctive relief will have a detrimental effect on it that would outweigh the effect on the respondents and third parties if such relief is granted.
In my view the balance of convenience strongly favours the respondents.
Steps are well advanced for NTSG to immediately undertake the relevant services. That means it can engage with the community sooner rather than later, conduct the important meetings with claimants and ensure that the opportunity to progress the claims towards consent determinations in the first half of next year is not unduly prejudiced. A lawyer has already been retained who is ready, willing and able to proceed.
I am particularly conscious of the effect of delay in legal representation and uncertainty on the native title claimants who are entitled to some certainty over the next few months that their claims are being pursued diligently with an eye to the proposed consent determinations.
Serious question to be tried
There would need to be convincing arguments as to a strong prima facie case and serious question to be tried to counterbalance my conclusion as to the balance of convenience. I am not satisfied on the evidence before me and the submissions that have been made that the position is sufficiently strong. That does not pre-empt the determination of matters that might be exposed or addressed more fully by the substantive hearing.
Issues with respect to relief
As noted, the injunction will not have the effect of causing the applicant to be funded pursuant to s 203FE of the Act. At most, it will have the effect of preventing the second respondent from funding anyone other than Grant Thornton to perform those functions whilst the proceeding is ongoing. Grant Thornton is not currently funded to provide full native title services. What is sought by the injunction is in effect a mandatory requirement that the second respondent provide further funding to Grant Thornton so that it can fund a third party to provide legal and other services that it is unable to provide within the remit of its current retainer.
There are not insignificant issues with respect to the relief sought in the main proceedings. For example, as to the NTRB decision, particularly insofar as the applicant seeks to have the decision quashed and seeks an order remitting the matter for re-consideration, the applicant does not seem to have addressed in its main submissions the relevance of the agreement reached with CDNTS or the fact that the NTSG has been established. As to the Funding decision, the orders sought do not appear to take into account that funding has already been provided for the period post 1 July 2019 and the relevant work has been undertaken.
Nor has the applicant addressed the discretionary nature of the power of the Minister to recognise an eligible body as a representative body under s 203AD or the discretionary nature of the power of the second respondent to fund a native title service provider under s 203FE.
These are all matters that I take into account in considering whether there is a prima facie case for the relief sought by the applicant and the risks of injustice to the respective parties.
I have also had regard to the particular matters relied upon by the applicant in support of its submission that there is serious question to be tried, as listed above.
(1) Failure to have regard to applicant's email attaching operational plan
The applicant alleges that the Minister failed to have regard to an email of 16 May 2018 that Mr Eldridge sent to the respondents. The email referred to a draft Operational Plan 2018‑19 dealing with claims that it was anticipated might be filed in the short term. A copy of the plan and maps was attached. The applicant asserts that the Minister did not have regard to the material based on the fact that it is not referred to in the list of information referred to in the Minister's reasons for decision and to which the Minister says he had regard.
Factually, that would not seem to be the case. Whilst the covering email is not expressly referred to in the lists of materials, it is apparent that the attachments were in fact included in the list.
There are two relevant lists of information recorded by the Minister. In the first (part of the Minister's letter advising of decision 5 July 2018) the attachments seem to be included under the heading 'GLSC operational plans, budgets, performances reports and associated correspondence from 2015 to 2018'. That list includes the item: 'Goldfields Land & Sea Council 2018-2020 Budget Submission, and Proposed GLSC Operational Plan 2018-2019' and 'Follow up material (map) sent by GLSC (John Eldridge) to the Department on 16 May 2018 on progress with the proposed first claim'.
The second list (part of the Minister's decision reasons) is included under a heading 'Evidence or other materials on which findings on material questions were based'. There is a reference to 'Goldfields Land & Sea Council 2018‑20 Budget Submissions, and Proposed GLSC Operational Plan 2018‑19'.
I accept the respondents' submission that it appears on the face of the evidence that the materials (at least the attachments) were included in materials before the Minister.
(2) Prejudicial material by way of comment from legal advisor
The applicant placed great store on an email from a barrister who works in the native title area that was provided to the delegate. The email suggests that the delegate and barrister also had a phone call.
The applicant contends that two issues arise from the email, although that position was not clear from the grounds of the application. The applicant contends it is relevant to an overarching complaint about denial of natural justice and to an allegation about the conduct of the delegate.
Very serious allegations were made in the applicant's submissions about the conduct of the barrister. I do not intend to air those allegations as I am of the view that they ought not to have been made on the basis of the limited materials relied upon and before the Court. Nothing in the materials before the Court established that the barrister acted for the applicant in the manner asserted by the applicant. Whilst the barrister is not a party to the proceedings, in light of the allegations that were made I directed that copies of relevant papers be provided to the barrister ahead of the hearing. The barrister in an email has denied the matters alleged and at this point what can be said is that the evidence would appear to support those denials.
As to the contention that there were adverse comments in the email that ought to have been disclosed to the applicant, that is a matter that will require detailed attention at the main hearing to the principles as to the obligations of the delegate, the extent to which adverse observations or opinions of others must be put to a party and to what extent materials obtained as part of an evaluation process must be disclosed.
It also appears that the applicant was on notice that Mr Lawrie's review involved a broad range of inquiries. For example, Mr Lawrie disclosed in a report that he, along with officers from the Department, also conducted interviews with the registrar of the Court, the State Solicitor's Office, the Aboriginal Coordination and Policy Unit of the Western Australian Government, and with a number of other legal practitioners and potential native title claimants. So certainly the applicant was aware of the broad scope of inquiries which were being made. The fact that legal practitioners were consulted was not withheld from the applicant.
The question as to whether or not the delegate should have put all or any adverse comments obtained during the evaluation process to the applicant, at this stage addressed only generally in the main submissions, does not persuade me that I should put to the side the balance of convenience.
(3) Impermissible conduct revealed by email exchange
The applicant relies on an email of 3 October 2018 from Mr Lawrie, addressed to Mr Roche and John McKinley of the Department, reporting on various discussions he had with people as part of his review process. In the email Mr Lawrie uses the plural 'we' in a number of places. Some examples are:
(a)'in particular, I think we need to be clear about what the objective is here';
(b)'are we still aiming for what is essentially a mediation …';
(c)'are we seeking a discussion with or without [the applicant] …';
(d)'are we clarifying the terms and limitations of a briefing out arrangement …'; and
(e)'we should consider whether the face to face with [the applicant] is the best way forward …'.
The applicant's contention is that it was not permissible for Mr Lawrie and Department staff to jointly act and that Mr Lawrie's asserted independence is undermined, as is the conduct of the delegate. There is also an allegation of bias.
Such a contention places great store in the author's use of the plural pronoun, and says nothing about the delegate's own conduct. Whilst it may be that the submission is further advanced at the main hearing, I am not currently persuaded that the email alone provides the basis for the finding sought by the applicant.
Further, as to the question of Mr Lawrie's independence, without deciding the issue at this point, I note that there is at least one example in the materials that indicates that Mr Lawrie changed his mind in a manner beneficial to the applicant (as identified by the respondents' counsel during the hearing).
(4) Management wrongly considered
The applicant refers to a conclusion within the Funding decision reasons to the effect that the applicant had not demonstrated to the delegate a commitment to leadership renewal amongst senior management. The applicant contends that the delegate therefore had regard to an irrelevant consideration because the 'leadership of the applicant is a matter for the applicant and the applicant alone'.
That submission does not take into account s 203BA(2)(c)(v) (included above) which would seem to squarely note management as a relevant issue for consideration.
I acknowledge the submission and the role of s 203BA other than in the context of a representative body may be further developed at the main hearing, but for the purpose of this application I do not find the submission as currently put persuasive.
(5) Minister wrongly involved
The applicant contends that based on an email, the Minister was wrongly involved in the Funding decision, being a decision that was to be made only by the second respondent or the delegate.
The email is part of an exchange between a senior advisor in the Land Branch of the Department who received the report from Mr Lawrie. The advisor wrote to a representative of the Minister's office informing her that the report had been received, informing her of the summary outcome and indicating that the delegate would be meeting with the applicant the following day to discuss performance improvement and funding.
The email relied upon is a reply from the Office of the Minister which reads:
Happy to discuss, however I think the Minister possibly needs to be briefed before this progresses as the course of action? Need to understand why this was the view formed and agree on next steps/timeframes.
On its face that email does not suggest that any view is being sought from the Minister. The fact that a ministerial staff member suggests that the Minister may need to understand why certain views have been formed, and agree on next steps or timeframes, says nothing about the Minister's view, and it does not suggest that any view of the Minister was being sought. Nor would it follow that administrative error would necessarily be established even if a view had been provided. Questions would remain as to the content of and use made of any such view.
Again, whilst I acknowledge issues arising from the email exchange may be further developed at the main hearing, I am not persuaded that the evidence is of sufficient strength to justify injunctive relief.
Consideration
As to the particular factual matters raised at the hearing by counsel for the applicant, they were not sufficiently compelling to withstand the submissions of the respondents. Measured against the clear tipping of the balance of convenience in favour of the respondents, they do not persuade me that there is a sound case for injunctive relief.
As I indicated during the course of the hearing, I would deal with the issue of a serious question to be tried by focussing on the particular matters raised and addressed by counsel during the hearing. I have not ignored the other matters raised in the main submissions.
However, the basis of many of the additional alleged administrative errors or allegations as to matters of procedural fairness that are raised in the main submissions are based upon dissection of comments in materials to isolate what might be considered adverse comments, but the nexus between the adverse comments and the judicial review ground is addressed at only a general level and without any condescension into the relevant principles or the question of materiality. Those matters, even viewed together with the particular matters already addressed, do not change my view that no sound basis for injunctive relief is disclosed in light of the balance of convenience.
Outcome
To my mind, having regard to all of the circumstances, the risk of injustice is higher if the injunction is granted than if it is not.
Accordingly, I dismissed the application, and indicated that I would hear the parties as to costs. I also made certain orders limiting the use of and access to evidence and suppressing the name of the relevant barrister, orders that were foreshadowed and discussed during the hearing.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith. Associate:
Dated: 27 November 2019
Schedule
Grounds of application from amended originating process
NTRB Decision1. The grounds of the application relating to the NTRB Decision are:
(a)The NTRB Decision is so unreasonable that no reasonable person could have so exercised the power;
(b)The NTRB Decision was based on the existence of a particular fact, namely that the Applicant was not satisfactorily performing functions that it was required to perform, when the circumstances were that it was simply not possible for the Applicant to have been performing those functions; and
(c)The NTRB Decision did not take into account follow up material forwarded by the Applicant to the First Respondent and/or the Second Respondent "on 16 May 2018 on progress with the proposed first claim".
(d)The NTRB Decision involved breaches of the rules of natural justice, namely:
(i)(A) The First Respondent concluded that:
AA.The Applicant's delays in finalising the anthropologists' reports were not the fault of the anthropologists.
BB.The Applicant had delayed the deadline for finalising the Strategic Research Program.
CC.This means that the Applicant allowed the anthropologists to miss their deadlines. It is the responsibility of the Applicant to negotiate and manage the contracts with the anthropologists to ensure that the anthropologists meet their own deadlines.
(B)The Applicant was not informed of these proposed conclusions prior to the making of the NTRB Decision.
(ii)(A) The First Respondent concluded that the Applicant had not taken reasonable steps to assist the anthropologists to meet their deadlines in order for the Applicant to meet its own deadlines with the Department of Prime Minister and Cabinet.
(B) The Applicant was not informed of this proposed conclusion prior to the making of the NTRB Decision.
(iii)(A) The First Respondent concluded that the Applicant had not provided detailed evidence that it has taken any steps to meet the deadlines agreed with the Department of Prime Minister and Cabinet.
(B) The Applicant was not informed of this proposed conclusion prior to the making of the NTRB Decision.
(iv)(A) The First Respondent concluded the Applicant, by not taking reasonable steps, allowing delays in finalising the research, and consistently not meeting deadlines agreed with the Department of Prime Minister and Cabinet, had not used its best endeavours to research and prepare native title applications in a timely manner.
(B) The Applicant was not informed of this proposed conclusion, or any individual parts of it prior to the making of the NTR8 Decision.
Funding Decision
2. The grounds of the application relating to the Funding Decision are:
(a)The Funding Decision involved breaches of the rules of natural justice, namely:
(i)Reports which were relied upon by the Second Respondent in making the Funding Decision were biased, namely:
(A) The "Final Lawrie Stage One Report"; and/or
(B) The "Lawrie progress report".
(ii)Documents relied upon by the Second Respondent, namely "Mr Lawrie's and Mr Roche's responses to GLSC's comments of 11 March 2019", were not provided to the Applicant prior to the decision being made with the result that the Applicant did not have an opportunity to comment on those documents, yet were taken into account by the Second Respondent in making the Funding Decision.
(iii)The Second Respondent:
(A)As part of the Funding Decision the Second Respondent concluded that the action of the Applicant in waiting to put proposals relating to composition of the Applicant's Board to the next Annual General Meeting of the Applicant was too slow because such proposals should have been put to the Applicant's Annual General Meeting held in November 2018.
(B)Had not informed the Applicant of this proposed conclusion prior to making the Funding Decision.
(b) The Funding Decision involved an error of law in that the Second Respondent applied the wrong test in that:
(i)As part of the Funding Decision the Second Respondent stated that he is "not satisfied that [the Applicant]'s performance of representative body functions in the Goldfields region is likely to significantly improve ... [and that he] ... will be looking to make alternative arrangements".
(ii)In making the Funding Decision, the Second Respondent was required to apply sub-section 203FE(1) of the NTA which does not restrict the Second Respondent in his decision-making to the issue of whether the Applicant's performance of its functions "is likely to significantly improve".
(c)The Funding Decision took into account an irrelevant consideration, namely, the composition of the management of the Applicant.
(d)The Funding Decision involved an error of law in that:
(i)As part of the Funding Decision the Second Respondent concluded that the Applicant had not demonstrated to him a commitment to leadership renewal amongst the senior management.
(ii)The leadership of the Applicant is a matter for the Applicant and the Applicant alone.
(e)There was no evidence or other material to justify the making of the decision in that:
(i)(A) As part of the Funding Decision the Second Respondent concluded that the action of the Applicant in waiting to put proposals relating to composition of the Applicant's GLSC Board to the next Annual General Meeting of the Applicant was too slow because such proposals should have been put to the Applicant's Annual General Meeting in November 2018.
(B)It was not possible for such proposal to have been put to the Applicant 's Annual General Meeting in November 2018.
(ii)(A) As part of the Funding Decision the Second Respondent concluded that the Project Agreement between the Applicant and the Commonwealth provides that the Applicant would have a continued increase in the rate of claim settlement.
(B) The said Project Agreement did not so provide.
(iii)(A) As part of the Funding Decision the Second Respondent concluded that "... at pages 24 to 25 of the Final Lawrie Stage One Report, Mr Lawrie has detailed some of the excessive costs incurred in anthropological research projects and in the arguably unnecessary engagement of legal counsel."
(B) Nowhere in pages 24 to 25 of the said report are any such details detailed.
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11
3