Johnson v Native Title Registrar

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FEDERAL COURT OF AUSTRALIA

Johnson v Native Title Registrar [2014] FCA 142

Citation: Johnson v Native Title Registrar [2014] FCA 142
Parties: ARTHUR CHARLES JOHNSON v NATIVE TITLE REGISTRAR and STATE OF QUEENSLAND
File number: QUD 614 of 2013
Judge: RANGIAH J
Date of judgment: 3 March 2014
Catchwords: NATIVE TITLE – application for summary judgment – applicant party to indigenous land use agreement – applicant filed application to set aside ILUA on ground of duress pursuant to s 199C(3) Native Title Act1993 (Cth) – whether proceedings should be dismissed based on non-compliance with order – whether applicant’s claim under s 199C(2) of the Native Title Act 1993 (Cth) has a reasonable prospect of success
Legislation: Federal Court of Australia Act 1976 (Cth) s 31A
Native Title Act1993 (Cth) ss 24CD, 24CG, 24CL, 24EA, 199C
Federal Court Rules 2011 (Cth) rr 5.22 and 5.23(1)
Cases cited: Barton v Armstrong [1976] AC 104
Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40
Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152
Gamer’s Motors Centre (Newcastle) Pty Ltd v Natwest Wholesaler Pty Ltd (1985) 3 NSWLR 475
Pao On v Lau Yiu Long [1980] AC 614
QGC v Bygraves (No. 2) (2010) 189 FCR 412
Spencer v Commonwealth (2010) 241 CLR 118
Date of hearing: 5 February 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant: Mr J Paterson, appeared on behalf of the applicant
Solicitor for the First Respondent: Mr P Hardman of Holding Redlich
Solicitor for the Second Respondent: Ms P Dupuy of Crown Law

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 614 of 2013
BETWEEN:

ARTHUR CHARLES JOHNSON
Applicant
AND:

NATIVE TITLE REGISTRAR
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

3 MARCH 2014

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The applicant’s Originating Application be dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 614 of 2013
BETWEEN:

ARTHUR CHARLES JOHNSON
Applicant
AND:

NATIVE TITLE REGISTRAR
First Respondent

STATE OF QUEENSLAND
Second Respondent

JUDGE:

RANGIAH J

DATE:

3 MARCH 2014

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. The State of Queensland and Arthur Charles Johnson, Michael Andrew Johnson and Shirley Ann Walker are parties to an indigenous land use agreement known as the “Wulgurukaba People ILUA” (“the ILUA”). Details of the ILUA were entered into the Register of Indigenous Land Use Agreements (“the Register”) on 22 December 2010. 

  2. On 9 September 2013, Arthur Charles Johnson (“Mr Johnson”) filed an originating application seeking an order pursuant to s 199C(2) of the Native Title Act1993 (Cth) (“the NTA”) directing the Native Title Registrar to remove the details of the ILUA from the Register. Mr Johnson alleges that he and the Wulgurukaba People were subjected to duress and that they would not have entered into…

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Details
Case
[2014] FCA 142
Decision Date

CaseChat Overview and Summary

Johnson brought an application in the Federal Court of Australia seeking to have the details of an Indigenous Land Use Agreement (ILUA) removed from the Register of Indigenous Land Use Agreements. The Native Title Registrar was the respondent. The State cross-applied for the application to be dismissed on the basis that Johnson had no reasonable prospect of success. The primary issue before the Court was whether Johnson's application for summary judgment had a reasonable prospect of success under section 199C of the Native Title Act 1993 (Cth). The Court considered whether the alleged facts could constitute "duress" as defined by section 199C(3) of the Act. The Court also had to determine if the phrase "a party would not have entered into the agreement" in section 199C(3) referred only to the named parties or also to the broader group of native title holders.

The Court found that Johnson's application did not have a reasonable prospect of success. It reasoned that Johnson had to prove that the ILUA was entered into due to duress, which Johnson claimed was physical duress during the authorisation meeting. The Court assumed that Johnson could prove the alleged facts at trial. However, the Court concluded that Johnson's claims did not meet the threshold of "duress" as defined by the Act, nor did they satisfy the requirement that a party would not have entered into the agreement without the duress. The Court also noted that the phrase in section 199C(3) could refer to both the named parties and the broader group of native title holders, but this interpretation did not change the outcome.

The Court dismissed Johnson's application and the State's cross-application for summary judgment. The Court ordered that Johnson's Originating Application be dismissed, with the formal entry of orders to be handled under Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant’s Originating Application be dismissed.

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

Background

Background to the litigation

The second aspect of the State’s application has more substance. It seeks summary judgment on the basis that Mr Johnson has no reasonable prospect of successfully prosecuting the proceeding. That application requires consideration of whether the matters alleged by Mr Johnson are capable of amounting to “duress” within the meaning of that expression in s 199C(3) of the NTA. Factual Background The Wulgurukaba filed two applications for determinations of native title in respect of Magnetic Island, located approximately 9 km off Townsville. In 2004, they started negotiating the terms of an ILUA with the State in respect of Magnetic Island. The Wulgurukaba were represented by a solicitor. Mr Johnson filed an affidavit annexing a letter from the solicitor addressed to the native title claimants dated 24 August 2009. That letter sets out the history of the native title determination proceedings and the negotiation of the ILUA. It also records certain legal advice that was given in respect of the proceedings and some of the terms of the ILUA. On 24 October 2013 the State sought and obtained an interim non-publication order in respect of the ILUA on the basis that its terms are confidential, but neither the State nor Mr Johnson has made any application to preserve the confidentiality of the letter. I will, however, refrain from discussing the advice and the terms of the ILUA described in the letter except to the extent necessary to explain my reasoning. The solicitor’s letter discloses that the Federal Court had ordered the Wulgurukaba applicant to provide a connection report to the State in 2002 or 2003. Apparently that connection report was not favourable and the State took the view that the Wulgurukaba were unable to satisfy the requirements of s 223(1) of the NTA. The solicitor’s letter states that the options were then to withdraw the applications, or face the prospect of the State either bringing an application to strike out the proceedings or seeking a declaration that native title had been extinguished, or entering into an ILUA to settle the applications. The letter says that a meeting of the claim group was held in 2004 and the meeting decided to authorise the applicant to pursue an ILUA with the State. The solicitor’s letter enclosed a copy of a draft ILUA. It said that the applicant had negotiated a better outcome than the Wulgurukaba would have achieved had there been a successful native title determination; and that there was no certainty that there would have been a successful determination. The letter stated that a meeting of the claim group would be held on 26 September 2009 to consider authorisation of the ILUA. It indicated that the North Queensland Land Council had been successful in obtaining funding for the meeting. The letter continued:Due to budgetary restrictions, there are simply not enough funds available to allow everybody to come to the meeting. As a result, it has been agreed between the applicants to cap the attendance of each family group to 35 attendees.Since there are 3 main family groups within Wulgurukaba, if all 35 people attended it will mean that there will be 105 people in attendance at the Meeting.The other benefit of approaching it in this manner is that it will ensure that there is fair representation from each of the family groups. It is a matter for each of the family groups who [sic] appoint those who will attend the meeting.The main expense in holding an Authorisation Meeting of this type is the cost of travel, accommodation and food for those out of town attendees. It is extremely important that elders and other persons that are important to the decision making process for the family groups are in attendance at the meeting. Accordingly first preference should be given to ensuring that all elders and other important decision makers are able to come to the meeting – should they so choose.Given the danger on the roads and the risk of breakdown, travel by motor vehicle is not encouraged, except in circumstances where the length of travel is less than 2 hours. Save and except in gravely exceptional circumstances, those who are unable or unwilling to travel by air, should travel by bus. Those costs will be met from the budget and will be paid directly to the airline or bus company.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 31A of the Federal Court of Australia Act 1976 (Cth) provides, relevantly:31A Summary judgment…(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospect of success. The State argued that Mr Johnson has no reasonable prospect of successfully prosecuting his application for an order that the Registrar remove the details of the ILUA from the Register. In Spencer v Commonwealth (2010) 241 CLR 118, French CJ and Gummow J said at [25]: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. I will proceed on the assumption that, at trial, Mr Johnson would prove the factual matters which he asserts. Mr Johnson’s application relies on s 199C of the NTA, which provides, relevantly:199C Removal of details of agreement from RegisterFederal Court order to remove details(2)The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.Ground for order(3)The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).Compensation order(4)If the Court orders the Registrar to remove the details, the Court may also order the person who committed the fraud, exerted the influence or applied the duress to pay compensation to any party to the agreement who will suffer loss or damage as a result of the removal of the details. The State does not argue that Mr Johnson is not a “party” to the ILUA for the purposes of s 199C(2) and (3). It follows that the State may be taken to accept that each of the registered native title claimants is individually a party. That would be consistent with the view of s 24CD taken by Reeves J in QGC v Bygraves (No. 2) (2010) 189 FCR 412 at [85]. That approach raises the question of whether the phrase “a party would not have entered into the agreement” in s 199C(3) refers only to the persons named in the ILUA as parties, or whether it also refers to the group of persons who hold or may hold native title. That question need not be considered here because I will assume that it refers to both.

Ratio Decidendi

Legal Principle Established

As to the “physical duress”, Mr Johnson alleged that many of the people who were present at the authorisation meeting were not truly Wulgurukaba People and, as a result, the true Wulgurukaba People were outnumbered. I understood him to assert that only the descendants of Jimmy White were truly Wulgurukaba. Mr Johnson and many members of his family are descended from Jimmy White. ConsiderationThe summary judgment application Section 31A of the Federal Court of Australia Act 1976 (Cth) provides, relevantly:31A Summary judgment…(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospect of success. The State argued that Mr Johnson has no reasonable prospect of successfully prosecuting his application for an order that the Registrar remove the details of the ILUA from the Register. In Spencer v Commonwealth (2010) 241 CLR 118, French CJ and Gummow J said at [25]: Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. I will proceed on the assumption that, at trial, Mr Johnson would prove the factual matters which he asserts. Mr Johnson’s application relies on s 199C of the NTA, which provides, relevantly:199C Removal of details of agreement from RegisterFederal Court order to remove details(2)The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.Ground for order(3)The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).Compensation order(4)If the Court orders the Registrar to remove the details, the Court may also order the person who committed the fraud, exerted the influence or applied the duress to pay compensation to any party to the agreement who will suffer loss or damage as a result of the removal of the details. The State does not argue that Mr Johnson is not a “party” to the ILUA for the purposes of s 199C(2) and (3). It follows that the State may be taken to accept that each of the registered native title claimants is individually a party. That would be consistent with the view of s 24CD taken by Reeves J in QGC v Bygraves (No. 2) (2010) 189 FCR 412 at [85]. That approach raises the question of whether the phrase “a party would not have entered into the agreement” in s 199C(3) refers only to the persons named in the ILUA as parties, or whether it also refers to the group of persons who hold or may hold native title. That question need not be considered here because I will assume that it refers to both.