Jones v State of Queensland
[2000] QSC 267
•11 July 2000
SUPREME COURT OF QUEENSLAND
CITATION: Jones v State of Queensland [2000] QSC 267 PARTIES: JOHN DALUNGDALEE JONES Representing the descendants who are Inheritors of the Estates of MARY ANN DALUNGDALEE ROONEY and LESLIE JAMES WILLIAMS J.P. Representing the descendants who are Inheritors of the Estates of JACKO MORRIS, these Estates being held in Trust by the STATE OF QUEENSLAND
(applicant)
v
The Chief Executive designated by the Community Services (Aborigines) Act 1984 and The Minister for Aboriginal and Torres Strait Islander Policy for the STATE OF QUEENSLAND
(defendants)FILE NO: 1694 of 1999 DIVISION: Trial PROCEEDING: Application to strike out action and/or Statement of Claim. Application for representative order. ORIGINATING COURT: Supreme Court of Queensland
DELIVERED ON: 11 July 2000 DELIVERED AT: Brisbane HEARING DATE: 15 June 2000 JUDGE: Muir J ORDER: (a) That the Statement of Claim be struck out
(b) That the application for a representative order be adjourned to a date to be fixed
CATCHWORDS: PRACTICE – APPLICATION TO STRIKE OUT ACTION AND/OR STATEMENT OF CLAIM whether pleading expresses nature and extent of claim – whether claim is clearly identifiable – whether all parties affected are joined – whether alleged constructive trust arises out of matters pleaded in set paragraphs of claim or their combination or otherwise – r 149 UCPR infringed – Statement of Claim lacking in clarity – deficiencies cannot be remedied via particulars
PRACTICE – APPLICATION FOR REPRESENTATIVE ORDER – no evidence of concurrence of all relevant persons affected - whether cause of action shown in all persons on whose behalf relief is sought
ABORIGINALS AND TORRES STRAIT ISLANDERS – NATIVE TITLE – possessory title claimed - material facts necessary to pleadings – whether possession continuous and exclusive – whether land held by Crown as constructive trusteePowell v McFarlane (1979) 38 P & C R 452
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Mabo v State of Queensland [No 2] (1992) 175 CLR 1
Banque Commerciale SA En Liquidation v Akhil Holdings Pty Ltd (1990) 169 CLR 279
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Davy v Garrett (1878) 7 Ch D 473
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Pty Ltd (1998) ATPR 41-633, contrasted
TPC v David Jones (Australia) Pty Ltd (1985) 7 SCR 109
H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd (1979) 30 ALR 181The Succession Act 1981 (Qld)
Uniform Civil Procedure Rules, rr 149, 171
Community Services (Aborigines) Act 1984
Labourers’ Protection Act 1884
Torres Strait Islander’s Act 1939COUNSEL: Mr J D Jones appearing in person on behalf of the plaintiffs
Mr G E Hiley QC with Ms Bowskill for the defendantsSOLICITORS: Mr J D Jones appearing in person on behalf of the plaintiffs
Mr C W Lohe, Acting Crown Solicitor for the defendants
MUIR J: On 24 February 1999 the plaintiffs commenced an action in this court by writ of summons against “The Chief Executive designated by the Community Services (Aborigines) Act 1984 and The Minister for Aboriginal and Torres Strait Islander Policy for the STATE OF QUEENSLAND”. The plaintiffs describe themselves in the writ as follows:
“JOHN DALUNGDALEE JONES Representing the descendants who are Inheritors of the Estates of MARY ANN DALUNGDALEE ROONEY and LESLIE JAMES WILLIAMS J.P. Representing the descendants who are Inheritors of the Estates of JACKO MORRIS, these Estates being held in Trust by the STATE OF QUEENSLAND.”
The claims made in the writ are lengthy, but it is desirable that I set them out in full:
“CLAIMS FOR CONVEYANCE OF PROPERTY HELD IN TRUST
(a)The Plaintiff's Claim that their request for conveyance of property which is held in TRUST by the QUEENSLAND GOVERNMENT, has not been met. The request was made on the lst December 1998.
(b)The Plaintiff JOHN DALUNGDALEE JONES is the legitimate bloodline descendant and inheritor of the ESTATE of MARY ANN DALUNGDALEE ROONEY (born about 1852).
(c)The Plaintiff JOHN DALUNGDALEE JONES is Chairman of the DALUNGBARA LAND COUNCIL and Represents all living descendants of the DALUNGBARA PEOPLE.
(d)The boundaries of the traditional Lands and Seas of the DALUNGBARA the aboriginal people, are marked on attached Map 'A'
(e)The Plaintiff LESLIE JAMES WILLIAMS J.P. is the legitimate bloodline descendant and inheritor of the ESTATE of JACKO MORRIS (born about 1830.
(f)The Plaintiff LESLIE JAMES WILLIAMS J.P. is Chairman of the NGULUNGBARA LAND COUNCIL and Represents all living descendants of the NGULUNGBARA PEOPLE.
(g)The boundaries of the traditional Lands and Seas of the NGULUNGBARA, the aboriginal people, are marked on the attached Map ‘A’.
(h)The Lands and Seas of the DALUNGBARA and NGULUNGBARA marked on Map ‘A’ are the ESTATES inherited from their forebears.
(i)Since the Declaration by the HIGH COURT OF AUSTRALIA on Murray Island, the Lands and Seas occupied and possessed by the DALUNGBARA and the NGULUNGBARA at the time of European incursion is now recognised by the COMMON LAW OF AUSTRALIA as the ESTATES.
(j)The Forebears of the DALUNGBARA and the NGULUNGBARA were in occupation and possession of their Lands and Seas at the time when the township of Maryborough was surveyed and the first allotments sold in 1849.
(k)No licences to take timber in the Noosa district occurred before 1865.
(l)The first Reserve on Fraser Island was the Sandy Cape Light Station, which was built in 1869 by Jacob Rooney and John Rooney, the Great Grand Father of the Plaintiff JOHN DALUNGDALEE JONES. MARY ANN DALUNGDALEE was tribally married to John Rooney. This union was consumated (sic) in the Customary way by exchange of gifts. As a result of he recognition of the aboriginal Customs, there was no friction with the local aborigines, relatives of MARY ANN DALUNGDALEE and JACKO MORRIS who supplied considerable manual labour for the construction of the Sandy Cape Light Station in 1870 and the Lady Elliot Light Station in 1875, both being built on the traditional Lands of the NGULUNGBARA.
In 1864 the death of the timbergetter ‘Yankee’ Jack Piggot occurred near Rooney Point as a result of an altercation when Piggott tried to steal some NGULUNGBARA women.
(m)The parents of MARY ANN DALUNGDALEE ROONEY and JACKO MORRIS were on Fraser Island at the tine of a major assault by 2 sections(24) of Native Mounted Police (recruited from other districts) on aboriginal residents of Fraser Island. The crew of the vessel and some squatters added to the force. This was recorded as being a brutal accomplishment in exterminating a large number of aborigines on 3rd January 1852.
(n)The above historical facts clearly indicate that the parents of MARY ANN DALUNGDALEE ROONEY and JACKO MORRIS were in occupation and possession of their Lands and Seas prior to European settlement. and as British Subjects were entitled to a possessory Title in accoreance (sic) with the COMMON LAW.
(o)These ESTATES are held in TRUST for the Plaintiffs by the QUEENSLAND GOVERNMENT in accordance with the past and present Aboriginal Protection Acts.
(p) The Plaintiffs are the Beneficiaries of this TRUST.
(q)The Plaintiffs have the right to inherit the Property of their forebears in accordance with Succession Act Qld. 1981.
CLAIM FOR ACCOUNTABILITY OF SALES AND LEASES OF TRUST PROPERTY
(r)The Plaintiffs who are Beneficiaries Of the ESTATES of their forebears have requested an account of the sales and leasing of their Property and the royalties obtained from the use of their Property by the TRUSTEES, the QUEENSLAND GOVERNMENT. This request was made on the lst December 1998. This request was denied by the Chief Executor of the ESTATES of deceased aborigines designated by the current Community Services (Aborigines) Act 1984 on the 15th February 1999.
(s)In accordance with the Succession Act Qld.1981 the Duties of Representatives are defined in S 52 (1)(a) to (e), (1A)(2) and Liabilities of Executors S 52(A).
(t)In accordance with Rules of the Supreme Court of Queensland Order 4 Rule 12 pertaining to Executors or Administrators of deceased persons.
(u)The Chief Executor is the Administrator of Estates of deceased aborigines pursuant to the Community Services (Aborigines) Act 1984.
(v)The Minister for Aboriginal and Torres Strait Islanders is responsible
(w) The STATE OF QUEENSLAND is the TRUSTEE.
(x)The Plaintiffs bring this Action as Beneficiaries against the TRUSTEE, the STATE OF QUEENSLAND.
(y)Costs of Applicants/Plaintiffs to be born by Executors, Succession Act S 52 (1A) (2).
(z)Statutes of Limitation not effective against persons of legal disability, that is Beneficiary/Trustee relationship.”
It will be seen that the writ, although containing numerous allegations of fact and law, fails to clearly identify the claims made by the plaintiffs. However, it may be deduced that the plaintiffs are claiming what is said to be a common law possessory title to the lands and seas identified on the map attached to the writ, as being lands of the Ngulungbara and Dalungbara people. There are also implicit claims under the first heading for declarations that the subject lands are held in trust for the plaintiffs by the Queensland Government, and that the plaintiffs have the right to inherit such land by operation of The Succession Act 1981 (Qld).
The claims, if any, made under the heading “CLAIM FOR ACCOUNTABILITY OF SALES AND LEASES OF TRUST PROPERTY” are harder to identify. They may include a claim by the plaintiffs for an account of the defendants dealings with the subject land in their capacity as trustees for the plaintiffs.
The map annexed to the writ marks out three tribal boundaries:
· That of the Ngulungbara people is depicted containing the northern third (approximately) of Fraser Island and an area of sea to the east, north and west.
· That of the Batchala people. It consists of a narrow part of central Fraser Island between the parallel boundaries of the Ngulungbara and Dalungbara lands and an area of the mainland bounded by The Great Sandy Strait in the east, lines running due west from the coast from a point opposite the southern most point of Fraser Island and a line at right angles to that line running due north passing slightly to the west of the town of Howard and ending at the coast line of Hervey Bay. The maritime boundaries are shown as eastward extensions of the two parallel lines which mark the boundaries of the tribe’s lands on Fraser Island.
· That of the Dalungbara. It includes the remainder of Fraser Island (in the south), an area of the mainland south of that shown as Batchala lands bounded on the east by the sea, on the west by a line running from the intersection of the southern and western Batchala boundaries to the town of Eumundi, and in the south by a line from Eumundi to Noosa. The southern most boundary is a line running due east from Noosa.
The plaintiffs do not purport to represent the Batchala people. I will make further reference to the Batchala people when discussing whether all necessary parties have been joined.
The Statement of Claim
The Statement of Claim is 75 pages in length. Conveniently, it contains an index from which it can be ascertained that the “relief sought” is to be found on pages 70, 71 and 72. On those pages the following appears:
“(23) THE RELIEF SOUGHT BY THE PLAINTIFF IS:
(a)Pay to the Plaintiff representing the DALUNGBARA the fair value of the property Lot 505 Crown Plan 907712, County of March, Parish of Noosa, owned by the Dep. Main Roads, evaluated by an independent Valuer.
(b)Pay to the Plaintiff, representing the DALUNGBARA, fifteen per centum (15%) per annum of gross takings of charges for the Ferry service.
(c)Pay to the Plaintiff, representing the DALUNGBARA, the sum of $120,000.00 as per Invoice to the NOOSA SHIRE COUNCIL, TEWANTIN Q for:
“To the removal of property from the sea bed I.E. ocean sand from granite Bay…80,000m cubed @ $1.50 per M3…$12,000.00
(d)Transfer the freehold Title to Lot 375 on MCH 4554, Tewantin to the Plaintiff, representing the DALUNGBARA LAND COUNCIL and the Aboriginal University of Australia Dalungdalee Trust.
(e)Transfer the Light Station
(i)Lady Elliot Light Station, LOT 11 on FD1036 par Bunder, co Flinders.
(ii)Sandy Cape Light Station, LOT 6 on CP893833 par Carree, co Fraser.
(iii)Double Island Point Lighthouse, LOT 1-3 on CP904493 par Cooloola, co March.
(iv)To the Plaintiff representing the DALUNGBARA and NGULUNGBARA land councils and the Aboriginal University of Australia, Dalungdalee Trust.
(f)Regarding all other freehold, leasehold Titles within the designated boundaries of the DALUNGBARA and the NGULUNGBARA, the Plaintiff directs that the Trustee, the Queensland Government, pay fifteen per centum (15%) per annum of all land taxes levied on the freehold and leasehold Titles to the representative DALUNGBARA LAND COUNCIL and the NGULUNGBARA LAND COUNCIL.
(g)Regarding all forest products and products from quarries and other extractive industries on Crown land which is unextinguished property rights of the DALUNGBARA and the NGULUNGBARA the Plaintiff directs that fifteen per centum (15%) of all sales made by the Crown be paid annually to the DALUNGBARA LAND COUNCIL and the NGULUNGBARA LAND COUNCIL.
IMPERIAL CROWN LAND SALE ACT 1842
The Colonial office issued directions to Colonial Governors that 15% of all land sales should be reserved for the benefit of Aborigines that they were to use an amount
‘not exceeding in the whole 15% of the gross proceeds of land sales for the benefit, civilisation and protection of the aborigines’
This Imperial Directive was ignored by Colonial Governors. By not fulfilling the lawful orders, the Colonial Governors were in breach of Duty.
After 157 years the Plaintiff is now in a position to seek legal enforcement of this long overdue Directive that 15% of sales be paid to the Beneficiaries of the Government's Trust. It must be noted that the Relief sought is 15% of the Land Taxes not the land sales.
The Plaintiffs, JOHN DALUNGDALEE JONES and LESLIE JAMES WILLIAMS J.P. before his death decided that 15% of the land taxes would serve in the interim to provide finance to our people and immediately help to become financially independent of the ‘poison of the welfare system’ as in fact as the property owners the revenue derived from assets would eliminate dependence of the welfare system. The Plaintiffs hold in abeyance any further relief regarding to land appropriated by the Government for public purpose. Regarding relief sought in (e), it was previously submitted by the Crown that discovery of titles would take several years. The Plaintiff rejects that submission as Titles and values are readily obtained.
Regarding relief sought in (f) the Plaintiff is prepared to negotiate a suitable timeframe with the Crown.ROYALTIES ON FISHING AND OTHER SEABED RESOURCES.
The Plaintiff leaves the question of Royalties on fishing licences and other offshore licences in abeyance unless such licences are directly within the offshore boundaries of the DALUNGBARA and the NGULUNGBARA. That being the case, the Plaintiff is prepared to negotiate a suitable timeframe with the Crown to determine the payment of such Royalties.”
The capacity in which the plaintiffs claim
The writ heading identifies the plaintiffs as two persons who represent respectively “the descendants who are Inheritors of the Estates of MARY ANN DALUNGDALEE ROONEY” and “the descendants who are Inheritors of the Estates of JACKO MORRIS”. However, when reference is had to the contents of the writ and Statement of Claim, it is apparent that the plaintiffs are purporting to bring their claims as representatives of two tribal groups, the Dalungbara people and the Ngulungbara people.
The Statement of Claim -
1. On page 2, recites the making of a representative order on 21 July 1997 in action number 183 of 1994;
2. On page 62, contains the allegation that “the plaintiff represents the people of the DALUNGBARA and NGULUNGBARA in accordance with the representative order”;
3. The prayer for relief on pages 70, 71, 72, claims relief on the express basis that the plaintiffs represent, variously, “the DALUNGBARA”, “the DALUNGBARA LAND COUNCIL and the ABORIGINAL UNIVERSITY OF AUSTRALIA DALUNGDALEE TRUST”; “the DALUNGBARA and NGULUNGBARA LAND COUNCILS and the ABORIGINAL UNIVERSITY OF AUSTRALIA DALUNGDALEE TRUST” and the “the DALUNGBARA LAND COUNCIL and the NGULUNGBARA LAND COUNCIL”. There is no relief claimed by the plaintiffs, or either of them, representing the Ngulungbara.
Matters for determination
There are two matters before me, an application filed on 17 March by the plaintiffs for “an amended representative order pursuant to R 75 and 76”, an application by the defendant that the writ be set aside on grounds that –
(a) Mr Jones has not obtained a grant of letters of administration or a representative order as required by r 76 of the Uniform Civil Procedure Rules;
(b) Mr Williams died on 5 October 1999 and he did not obtain a grant of letters of administration or a representative order;
(c) The Statement of Claim does not disclose a good cause of action;
(d) The Statement of Claim has a tendency to prejudice or delay the fair trial of proceedings as –
(i) It is not possible to identify the people on whose behalf the action is brought;
(ii) All persons whose presence is necessary to enable the court to adjudicate effectually and completely on the matters in the proceeding have not been included as parties to the proceeding as required by r 62 of Uniform Civil Procedure Rules, including –
A. All the plaintiffs to Supreme Court proceedings No 183 of 1994;
B. The applicants in a number of Federal Court proceedings who are making claim to native title in respect of all or part of the land the subject of the writ;
C. The Commonwealth of Australia.
(e) the Statement of Claim is otherwise unintelligible, embarrassing, vexatious and oppressive.
Alternatively, the defendants seek orders –
(a) staying the proceedings;
(b) striking out the Statement of Claim.
By mutual agreement, an application for an injunction restraining the defendant from “disposing of … the Double Island Light Station” was not heard.
Proper identification of parties
If the claim is brought on behalf of the two tribal groups, as Mr Jones asserted in the course of submissions and as the text of the Statement of Claim suggests from time to time, the applications in the Statement of Claim concerning the estates of the late Mrs Rooney and the late Mr Morris and the chain of succession in respect of those estates are irrelevant or, at best, incomplete. A cause of action needs to be shown, not just in these two family groups but in all persons on behalf of whom the action is brought. It struck me as most unlikely that the late Mrs Rooney and the late Mr Morris were, respectively, the sole members of their respective tribal groups at the dates of their death and, on my request, Mr Jones informed me in the course of the hearing that he was not advancing any such contention.
The Statement of Claim places particular reliance on the late Mrs Rooney and the late Mr Morris as they are respectively forebears of Mr Jones and the late Mr Williams, and because the claim of succession from those persons to persons now living can be established with relative ease. But, as is apparent, there is probably not much to be gained by claiming on behalf of only sections of the two tribes. To do so would raise the question of the interest, if any, in tribal property held by an individual tribal member. Also required would be an investigation into membership of the tribes at relevant times and further consideration of the persons who should be joined as parties.
The manner in which title is alleged to have passed is of some importance and is also a source of potential difficulty. The Statement of Claim is based on the assumption that a descendant of a person has an interest in that person’s property. This assumption fails to recognise that a person may dispose of his or her estate by will. A testamentary disposition of real property need not be to the person or persons who would take on an intestacy. I mention these matters to give something of an indication of the potential scope of material facts which needs to be taken into account and possibly pleaded.
The claim for title based on possession
One of the plaintiffs’ principal claims is for common law possessory title of the land and seas within the areas described in the writ. It is convenient to pause and consider the principles underlying such a claim. In Powell v McFarlane,[1] In a passage cited with approval by Murray J in Petkov v Lucerne Nominees Pty Ltd, [2] his Honour restated the principles relevant to the concept of possessory title in respect of a claimant without a registered or a documentary title as follows –
“(2)If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3)Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that he alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”
[1](1979) 38 P & CR 452 at 470-472.
[2](1992) 7 WAR 163 at 167.
In order to support a title, the plaintiffs must show continuous and exclusive possession.[3] Toohey J in Mabo v The State of Queensland [No 2],[4] discussed but did not express a concluded view on the existence of a title based on possession in the case of the appellant. His Honour expressed the view that possession, if lost, may nevertheless support a right in the plaintiff to recover possession.[5] His Honour said - [6]
“… a person’s title arising from prior possession can be defeated either by a defendant showing that he or she (or another person, insofar as it undermines the plaintiff’s claim) has a better, because older, claim to possession or by a defendant showing adverse possession against the person for the duration of a limitation period.”
[3]Petkov at 167.
[4](1992) 175 CLR 1 at 206-214.
[5]At 210-211.
[6]At 211.
In order to establish a framework for the possessory title claim, the plaintiffs would need to plead matters such as –
(a) Material facts sufficient to show actual possession by the relevant tribal group of the land claimed prior to dispossession and any other facts necessary to show possessory title.
(b) Dispossession.
(c) Material facts which go to show that the existing use of the land claimed is not inconsistent with the plaintiff’s claim for possession.
(d) That title passed from those who had possessory title to the persons whom the plaintiffs purport to represent.
The Statement of Claim does not allege such material facts, at least, not in a way in which they are able to be recognised and responded to in a defence.
Identification of the land the subject of the claim and necessary parties
The possessory title claim, on its face, includes many closely settled areas such as the Hervey Bay region, the Noosa Hinterland, and the towns and cities of Noosa, Tewantin, Maryborough, Pialba and Urangan. Obviously, much of the land in that region is freehold. When this was pointed out to Mr Jones on the hearing, he disavowed an intention to claim such land. The pleading, however, must express the nature and extent of the claim.
Even in relation to non-freehold land, it will be necessary for the plaintiffs, at the very least, to identify the tenure of the land the subject of the claims. Such identification is necessary in order to ascertain what further parties, if any, will need to be joined. Obviously, if the claim involves Crown leasehold and affects the rights of lessees, they will need to be joined.
If the action is to proceed as presently framed, at some stage it will be necessary, having regard to the claim for a percentage of land tax on all land within the subject area sold by the Crown, to identify all parcels of land sold by the Crown and the past and present land tax paid in respect of each parcel. Having regard to the way in which land tax is assessed, any such claim would be extremely difficult to calculate. Although Mr Jones may well have a pragmatic reason for expressing the claim in this way, it is highly unlikely that it can have any legally supportable foundation. I express no concluded view on that matter only because it was not adverted to in the course of submissions. The question of identification of titles, dates of alienation and the like, though, are most probably something which could await the determination of liability.
The members of the Batchala tribe have not been joined. This gives rise to concern as Mr Jones purported to represent them in action 183 of 1994 in which a claim was made for common law native title on behalf of the Dalungbara, Batchala and Ngulungbara people over the area shown in the writ as the tribal area of the three tribal groups.
There are proceedings in the Federal Court in which at least two tribes, other than the Dalungbara and the Ngulungbara, claim native title in the area which is the subject of this action. Moreover, the claim is over areas of sea beyond State Territorial boundaries. In fact, the claim purports to cover an area of sea up to 200 nautical miles from the coast.
Obviously, the Commonwealth should be joined if the plaintiffs are to persist in this claim. Also those persons claiming native title over all or part of the land the subject of this action should be joined as parties to the action.
Confusion concerning the persons on whose behalf claims are made
The Statement of Claim generally does not differentiate between the rights and interests of the two tribal groups on whose behalf the claims are advanced. However, when one comes to the claim for relief, some of the paragraphs require payment of moneys or transfer of property to representatives of one of the tribes. Other paragraphs, for example, paragraph (g), make no differentiation between the two tribes. Paragraph (g) requires 15% of sales of forest and quarry products to be paid by the defendants annually to the Dalungbara Land Council and the Ngulungbara Land Council. No facts are pleaded which show that the Dalungbara have any interest in the tribal lands of the Ngulungbara or vice versa.
Presumably, the plaintiffs generally intend that there be separate claims in respect of separate rights alleged to exist in the separate tribal groups. I have already remarked that relief is sought in favour of unrepresented bodies, namely, the two land councils. The Statement of Claim does not reveal how any entitlement on their part can arise. A similar problem exists in other parts of the prayer for relief where relief is claimed by “the plaintiff, representing the Dalungbara Land Council and the Aboriginal University of Australia, Dalungdalee Trust”. In paragraph (e), there is a claim for the transfer of three parcels of property to the plaintiff, this time, representing both the Dalungbara and Ngulungbara Land Councils and the Aboriginal University of Australia, Dalungdalee Trust. The Lady Elliot Light Station and the Sandy Cape Light Station are both within the boundaries claimed on behalf of the Ngulungbara, whereas the Double Island Point Light Station is within the boundaries of land claimed by the Dalungbara. This claim to the three light stations is by both tribes. That appears to contradict the foundation of the possessory title claim, namely, that the tribal groups had exclusive possession of land within their respective tribal boundaries. It is likely that the lack of differentiation arises through inadvertence.
Obvious gaps in allegations of material facts
The pleading does not allege that materials are being removed from the sea bed or that a ferry service is in operation but claims are made in respect of those matters. The legal foundations of the claims are obscure to say the least.
The parts of the Statement of Claim relevant to the trust allegations
The plaintiffs assert in paragraph (16) of the Statement of Claim that they –
“… certainly do not claim title under the Native Title Act”, but rather seek to assert “our right to inherit property of our ancestors that they were legally entitled to hold pursuant to the common law right to possessory title based on their occupation and possession of their traditional lands and seas when British Sovereignty was declared …”.
Paragraph (17) of the Statement of Claim is headed “THE CROWN THE TRUSTEE OF ESTATES OF DECEASED ABORIGINES”.
It is alleged in the paragraph that the State of Queensland is the Trustee of the Estates of deceased Aborigines. How the trusteeship is alleged to arise is far from plain. Reference is made to the Community Services (Aborigines) Act 1984 but no provision within that statute is identified.
The paragraph then refers to the appointment of Protectors of Aborigines and the continuation of such appointments. There then follows some discussion concerning the aboriginal tracker, Jack Noble, presumably with a view to showing an instance of the way in which authorities exercised a protective role in relation to some aboriginals. In the balance of the paragraph there is discussion of –
(a) The Anti-Opium and Aboriginal Protection Act 1897, its operation and consequences;
(b) The claims by Aboriginal trackers for a share of the reward offered for the capture of members of the Kelly gang;
(c) “a report by the consultancy bureau for the Queensland Government investigation of the Aborigines Welfare Fund and the Aboriginal Accounts;”
(d) a work by Dr Rosalind Kidd which it is alleged shows “the complete control of every aspect of the lives of Aborigines of Queensland;”
(e) examples of how “Protection Acts” were said to have affected persons called Susie Roonie, Susan Lock and Roger Bennett. This section of the pleading is generally more of an account of the historical dealings of some named individuals in respect of locations and events on and about Fraser Island than a recitation of facts about the protection of Aboriginals.
Paragraph (18) lists a number of enactments concerning Aboriginals, refers to some provisions in such legislation dealing with the Administration of Estates and concludes –
“All previous Aboriginal Protection Acts and the current Act clearly demonstrates the Trusteeship of the State of Queensland regarding the Estates of deceased Aborigines, whoever the agent is.”
It is not explained –
(a) How, if at all, this alleged trusteeship of the estates of Aboriginals establishes or assists in establishing the constructive trust alleged in paragraph (19);
(b) How, if at all, the allegations of acts done in the protection of Aboriginals and their status as protected persons gives rise to any alleged trust
Paragraph (19) of the Statement of Claim is headed “CONSTRUCTIVE TRUSTEESHIP IMPOSED ON THE CROWN PERTAINING TO THE PROPERTY OF THE DALUNGBARA AND THE NGULUNGBARA”. It is alleged in this paragraph that the defendant State of Queensland is a constructive trustee as a result of its “… asserting Sovereign power that traditional title can only be alienated by the traditional owners to the Crown”. Plainly, Aboriginal welfare legislation and conduct in relation to the proportion of aboriginals is not relied on to support this allegation of the existence of a trust. There then follows references to the judgments in Mabo [No 2] but no material facts are set out which might support the contentions. The allegations which follow are ones under the heading “CONSTRUCTIVE TRUSTEESHIP IMPOSED BY STATUTE”. These allegations are prefaced by assertions based on the judgment of Toohey J in Mabo [No 2], including that –
“The common law legal fact that the State of Queensland is the trustee for the property of the Dalungbara and the Ngulungbara is upheld by the High Court of Australia with reference to the Privy Council and the Supreme Court of Canada.”
Then it is alleged that –
(a) Trust funds were established in respect of bank accounts containing moneys derived by compulsory wage savings of Aboriginals; and
(b) Discovery has been sought, unsuccessfully, in respect of various named persons.
The paragraphs just discussed are representative of the Statement of Claim generally. Matters which are either irrelevant or which are purely evidentiary in nature are included with matters which may be material facts. It is impossible to understand which sets of alleged facts are relied on to support the different allegations of trust. Does the alleged constructive trust arise as a result of the matters pleaded in paragraphs (16), (17) or (18) or by virtue of a combination of those matters? Are some of the allegations intended to be expressed in the alternative? At what point does the alleged trust arise, what is the subject matter of the trust; and how and when were the trustee’s duties breached? The Statement of Claim raises these issues but does not permit resolution of them.
It is apparent from the foregoing that the Statement of Claim should be struck out. It infringes the requirements of r 149 of the Uniform Civil Procedure Rules that each pleading must –
“(a) be as brief as the nature of case permits; and
(b)contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved …”.
In Banque Commerciale SA En Liquidation v Akhil Holdings Pty Ltd, [7] Mason CJ and Gaudron J described the function of a pleading as follows –
“The function of pleadings is to state with sufficient clarity the case that must be met: Gould & Bairbeck & Bacon v Mt Oxide Mines Ltd (In liq.) per Isaacs and Rich JJ. In this way, pleadings serve to ensure the basic requirements of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness.”
Where, as is the case here, statutory provisions are sought to be used as the foundation of a cause of action or claim, it is necessary that the factual basis upon which such provisions are alleged to operate must be stated with appropriate clarity in the Statement of Claim.[8] The Statement of Claim falls far short of meeting this requirement.
[7](1990) 169 CLR 279 at 286.
[8]cf Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Pty Ltd (1998) ATPR 41‑633 at 40,977.
Nor does it state with any clarity the case which the defendants are required to meet. The lack of precision is such that the defendants could not deliver an appropriate defence. The scope of the issues in dispute are not sufficiently clearly identified to permit disclosure to take place on a properly informed basis. Before the defendants could attempt to formulate a defence to the Statement of Claim, it would be necessary for the material facts to be distinguished from the historical narration, assertions of law, expressions of opinion and the like which make up the bulk of the Statement of Claim. In my view, the task is impossible. If the matter went to trial in its present form, it would be impossible for the trial judge to give rulings on evidence and, of course, the defendants would not know the case they had to meet and thus could not properly prepare for trial. The deficiencies in the document cannot be remedied by particulars. It is not the function of particulars to provide allegations of material fact.[9] A defendant does not plead to particulars.[10] Nor can further particularisation eliminate the mass of irrelevant matter in the pleading.
[9]H 1976 Nominees Pty Ltd v Galli and Apex Quarries Limited (1979) 30 ALR 181.
[10]TPC v David Jones (Australia) Pty Limited (1985) 7 SCR 109.
The Statement of Claim thus has a tendency to prejudice or delay the fair trial of the proceeding and is “prolix and embarrassing” within the meaning of that word in r 171 of the Uniform Civil Procedure Rules. Parties have a right to have the case against them articulated in an intelligible form.[11]
[11]Davy v Garrett (1878) 7 Ch D 473.
It is not appropriate that the writ of summons be struck out or that the action be stayed. It is conceded by Mr Hiley QC that the plaintiffs may well be able to articulate claims which meet the tests in General Steel Industries Inc v Commissioner for Railways (NSW).[12]
[12](1964) 112 CLR 125.
Application for representative order
I now turn to the application for a representative order. I decline to make the order. It is plain that there is confusion as to the identity of the persons whom Mr Jones seeks to represent. The application is based on the assumption that the relevant persons are descendants of Mary Rooney and Jacko Williams. For the reasons advanced earlier, that is an erroneous assumption. It has not been established that all descendants of Mary Rooney are aware of the existence of the litigation instituted by Mr Jones, let alone its detail. There is even less evidence concerning the descendants of Jacko Williams. Leslie Williams is now dead and obviously cannot be a representative plaintiff. There is no evidence that Mr Jones, with the concurrence of all relevant persons, stands in his shoes.
The evidence does not establish that Mr Jones has the authority of all members of broader groupings, which he purports to represent, or even many of them.
I propose to order that –
(a) the Statement of Claim be struck out;
(b) the application for a representative order be adjourned to a date to be fixed.
Obviously, a costs order will be made in favour of the defendants if they seek one.
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