Karingbal Traditional People Aboriginal Corporation v Santos GLNG Pty Ltd
[2011] FCA 1456
•16 December 2011
FEDERAL COURT OF AUSTRALIA
Karingbal Traditional People Aboriginal Corporation v Santos GLNG Pty Ltd [2011] FCA 1456
Citation: Karingbal Traditional People Aboriginal Corporation v Santos GLNG Pty Ltd [2011] FCA 1456 Parties: KARINGBAL TRADITIONAL PEOPLE ABORIGINAL CORPORATION v SANTOS GLNG PTY LTD ACN 131 271 648 File number: QUD 513 of 2011 Judge: REEVES J Date of judgment: 16 December 2011 Catchwords: CONTRACTS – application for declaration that certain obligations of a contract have been performed – contract an ancillary agreement to an Indigenous Land Use Agreement – consideration of joint and several obligations by multiple parties to contract – whether obligations to be performed by a native title claim group require performance by all members of that group – obligations are not cumulative such that performance by one is performance by all
Held – application granted
Legislation: Native Title Act 1993 (Cth) Pt 2 Div 3 Cases cited: Re Broons [1989] 2 Qd R 315
QGC v Bygrave (2010) 189 FCR 412; [2010] FCA 1019Date of hearing: 13 December 2011 Date of last submissions: 13 December 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr M Cooke with Mr J Creamer Solicitor for the Applicant: Redmond + Redmond Counsel for the Respondent: Mr G Coveney Solicitor for the Respondent: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 513 of 2011
BETWEEN: KARINGBAL TRADITIONAL PEOPLE ABORIGINAL CORPORATION
ApplicantAND: SANTOS GLNG PTY LTD ACN 131 271 648
Respondent
JUDGE:
REEVES J
DATE OF ORDER:
16 DECEMBER 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS AND DECLARES THAT:
1.The Applicant is the “nominated body” entitled to payment pursuant to clause 6.4 to the Ancillary Agreement to the Indigenous Land Use Agreements Gladstone Liquefied Natural Gas Project dated 21 October 2009 as between the First and Second Respondents and the Karingbal Native Title Applicants on their own behalf and on behalf of the Karingbal Native Title Claim Group.
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 513 of 2011
BETWEEN: KARINGBAL TRADITIONAL PEOPLE ABORIGINAL CORPORATION
ApplicantAND: SANTOS GLNG PTY LTD ACN 131 271 648
Respondent
JUDGE:
REEVES J
DATE:
16 DECEMBER 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
INTRODUCTION
This matter concerns a narrow issue in relation to the performance of joint and several obligations of multiple parties to a contract. That issue arises out of a dispute between the applicant, on behalf of the Karingbal Native Title Applicants – who I will refer to jointly as the Karingbal People – and Santos GLNG Pty Ltd and Petronas Australia Pty Ltd – who I will refer to jointly as Santos – over the performance of an agreement entered into between the Karingbal People and Santos. The agreement is ancillary to two agreements that were also entered into at about the same time, between the same parties, one of which is called the Southern ILUA, and the other the Northern ILUA. As their titles suggest, both of these latter agreements have been registered as an Indigenous Land Use Agreement (ILUA) under the provisions of Div 3 Pt 2 of the Native Title Act1993 (Cth) (the Act).
The Karingbal People say they have complied with the relevant clauses of the ancillary agreement and they are therefore entitled to receive the sum of $800,000 which is due and payable under clause 6.4 of that agreement. However, Santos disagrees and says that the obligations under those clauses have not been performed and, as a result, they are not obligated to make the payment.
To resolve this dispute, the Karingbal People have sought a declaration which has the effect of declaring that they have performed the relevant clauses of the ancillary agreement and the sum of $800,000 is therefore payable to the applicant company.
For the reasons that follow, I consider the Karingbal People are entitled to the declaration they have sought.
THE RELEVANT PROVISIONS OF THE CONTRACT
Clause 6.2 of the ancillary agreement to the ILUAs places obligations on the Karingbal People to take certain steps before the payment is due and payable to them. Both of those steps are quite procedural in nature. They are:
The Karingbal Native Title Applicants must:
(a)advise the GLNG Project Proponents of the name, bank account details and principal contact for the proposed Nominated Body; and
(b)provide documents and other relevant information confirming that the proposed Nominated Body meets the criteria in clause 6.1 of this Agreement.
It is not necessary to set out cl 6.1 because there is no dispute between the parties that the two steps required by cl 6.2 have been undertaken. Indeed, the applicant company in these proceedings was the body the Karingbal People nominated as the “Nominated Body” under cl 6.2(b).
THE CONTENTIONS
The only dispute in this matter arises from Santos’ claim that these two obligations under cl 6.2 were undertaken by the Karingbal People without the unanimous support of all the five individuals who make up the Karingbal Native Title Applicants. In particular, Santos says that one of those five individuals, a Mr Stapleton, does not support the nomination of the applicant company as the “Nominated Body” under cl 6.2. Santos says that this need for unanimous support for the performance of these two obligations arises under certain of the ILUA provisions of the Act and because of the provisions of cl 1.3(a) of the Southern ILUA Agreement, which is imported into the ancillary agreement by cl 1.2(b). The former clause relevantly provides that where a party to the agreement is made up of more than one person “an obligation of those persons is joint and several”. This means, so Santos submits, that the obligations under the ancillary agreement can only be discharged with Mr Stapleton’s support, that is, with the unanimous support of all the five individuals who make up the Karingbal Native Title Applicants.
The Karingbal People say that the Karingbal Native Title Applicants comprises only one entity and therefore no situation of joint and several obligations arises under cl 1.3(a) of the Southern ILUA Agreement. They rely upon the definition of “parties” in the ancillary agreement to the ILUAs which describes them as: “(c) the Karingbal Native Title Applicants on their own behalf and on behalf of the Karingbal Native Title Claim Group.” The Karingbal People also rely upon various decisions in relation to the ILUA provisions of the Act to the effect that a group of people such as the Karingbal Native Title Applicants acts jointly and it may act by a majority of its members.
CONSIDERATION AND DISPOSITION
To begin with, none of the terms of the ancillary agreement adopts or applies any of the provisions of the Act, much less the ILUA provisions of the Act. To the contrary, it contains clauses that provide that it is not to be lodged with the National Native Title Tribunal (the registering body for an ILUA under the Act) and that it does not form part of the Southern or Northern ILUA agreements described above: cll 15.5 and 15.6. I therefore infer that this ancillary agreement was deliberately structured in this way to avoid having any of the provisions of the Act apply to it. It follows that I do not consider the jurisprudence relating to the ILUA provisions of the Act – eg my decision in QGC Pty Limited v Bygrave(No 2) (2010) 189 FCR 412; [2010] FCA 1019 – provides any assistance in construing the provisions of this ancillary agreement. Instead, I consider this agreement has to be construed by reference to normal common law principles.
Next, without deciding the question, I will assume for the purposes of disposing of this matter that Santos is correct in its submission that the five individuals who make up the Karingbal Native Title Applicants are jointly and severally liable to perform the obligations under the ancillary agreement in accordance with cl 1.3(a) above. In that event the position in relation to their joint and several obligations was succinctly and correctly (with respect) described by Moynihan J in Re Broons [1989] 2 Qd R 315 at 316 as follows:
At this stage it is necessary to distinguish between a joint promise and a joint and several promise. A joint promise by two or more persons creates a single obligation incumbent upon both or all. A joint and several promise creates both a joint obligation on all and a number of several obligations respectively incumbent on each of the parties. The several obligations are not cumulative so that performance by one is performance by all.
It follows that the performance by four of the individuals who make up the Karingbal Native Title Applicants, of the joint and several obligations under cl 6.2 of the ancillary agreement, will discharge those obligations for the whole five of them. It follows further, that Mr Stapleton’s support, or otherwise, for his co-promisors’ performance of those obligations is quite immaterial. If the obligations under cl 6.2 were more than merely procedural, their performance may have given rise to questions of contribution as between the five co-promisors, but no such issues arise here. And, as between the Karingbal Native Title Applicants and Santos, it is difficult to see how any internal dispute amongst the Karingbal Native Title Applicants can affect Santos’ obligations to perform under the ancillary agreement.
THE RELIEF
I therefore consider that the Karingbal People are entitled to a part of the relief they seek. In their amended application that relief is described as follows:
1.A declaration that the Applicant is the “nominated body” entitled to payment pursuant to clause 6.4 to the Ancillary Agreement to the Indigenous Land Use Agreements Gladstone Liquefied Natural Gas Project dated 21 October 2009 as between the First and Second Respondents and the Karingbal Native Title Claim Group;
2. Payment of the invoiced sum of $810,000.00 as monies due and owing;
3.In the alternative, damages for breach of contract in the amount of $810,000.00 from the Respondent to the Applicant;
4. Such other orders as the Court deems fit.
If relief were to be granted, Santos’ counsel informed me that it does not oppose the relief sought in para 1, but submits that the balance of the relief sought is either unnecessary, or not made out. In particular, it says it is unnecessary because it will consider itself bound to make the payment of $800,000 forthwith, if the declaration sought in para 1 were to be made.
Accordingly, I will proceed to make a declaration in those terms.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 16 December 2011
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