Minara Resources Ltd (ACN 060 370 783) v Ashwin

[2007] WASCA 107

MINARA RESOURCES LTD (ACN 060 370 783) -v- ASHWIN & ORS [2007] WASCA 107

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 107
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:128/2006	Heard:	8 FEBRUARY 2007
Coram:	WHEELER JA McLURE JA	Delivered:	24/05/07
No of pages:	23	Judgment Part:	1 of 1
Result:	Orders made
Category:	A
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Parties:	MINARA RESOURCES LTD (ACN 060 370 783) RAYMOND WILLIAM ASHWIN GEOFFREY ALFRED ASHWIN RALPH EDWARD ASHWIN JUNE ASHWIN
Catchwords:	Procedure Representative proceedings Contract Native title Statement of claim Validity
Legislation:	Federal Court of Australia Act 1976 (Cth) Federal Court Rules Native Title Act 1993 (Cth), s 61(1), s 61(3) Rules of the Supreme Court 1971 (WA), O 18 r 12 Trade Practices Act 1974 (Cth), s 51AA
Case References:	Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414 Amey v Fifer [1971] 1 NSWLR 685 Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (No 2) (1999) 166 ALR 74 Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 Duke of Bedford v Ellis [1901] AC 1 Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715 Mabo v Queensland (No 2) (1992) 175 CLR 1 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231 The Queen v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MINARA RESOURCES LTD (ACN 060 370 783) -v- ASHWIN & ORS [2007] WASCA 107 CORAM : WHEELER JA

McLURE JA

HEARD : 8 FEBRUARY 2007 DELIVERED : 24 MAY 2007 FILE NO/S : CACV 128 of 2006 BETWEEN : MINARA RESOURCES LTD (ACN 060 370 783)

Appellant

AND

RAYMOND WILLIAM ASHWIN
GEOFFREY ALFRED ASHWIN
RALPH EDWARD ASHWIN
JUNE ASHWIN
Respondents

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : ASHWIN & ORS -v- MINARA RESOURCES LTD [2006] WASC 75

File No : CIV 2071 of 2005

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Catchwords:

Procedure - Representative proceedings - Contract - Native title - Statement of claim - Validity

Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules
Native Title Act 1993 (Cth), s 61(1), s 61(3)
Rules of the Supreme Court 1971 (WA), O 18 r 12
Trade Practices Act 1974 (Cth), s 51AA

Result:

Orders made

Category: A

Representation:

Counsel:

Appellant : Mr G R Donaldson SC
Respondents : Mr R I Viner QC & Ms R Dehbonei

Solicitors:

Appellant : Blake Dawson Waldron
Respondents : Mony de Kerloy

Case(s) referred to in judgment(s):

Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414
Amey v Fifer [1971] 1 NSWLR 685
Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (No 2) (1999) 166 ALR 74
Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398
Duke of Bedford v Ellis [1901] AC 1
Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715
Mabo v Queensland (No 2) (1992) 175 CLR 1

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Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231
The Queen v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374


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1 JUDGMENT OF THE COURT: This is an application for leave to appeal ordered to be heard together with the appeal, relating to a decision of Master Sanderson dismissing the appellant's application for a stay of proceedings. That is the way the decision appealed from is described in the appellant's amended appeal notice dated 5 October 2006. It appears from the grounds of appeal, which we set out at [33], that the appellant really seeks to appeal from the decision of Master Sanderson dated 19 September 2006 making an order in the following terms:

"1. The Plaintiffs are Raymond William Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin and June Ashwin in their joint capacities as representatives of the Wutha People native title claimant group in respect of the claims the subject of National Native Title Tribunal claim numbers WC 96/8 and WC 96/22 which claims are now combined as National Native Title Tribunal claim number WC 99/10 being Federal Court claim number WAD 6064/98."

2 We turn first to the background facts out of which the statement of claim arose, and then describe the course of proceedings leading to that order.

Background - the native title application and the deed

3 Prior to amendments made in 1998, s 61(1) of the Native Title Act 1993 (Cth) (the "NTA") provided that an application for a determination of native title could be made by:

"(1) A person or persons claiming to hold the native title either alone or with others; or

(2) A person who holds an interest in relation to the whole of the area in relation to which the determination is sought … "

4 Subsection (2) provided that "[a]n application must be in the prescribed form and be given to the Registrar". The relevant form for an application for determination of native title was, and remains, a Form 1 ("Form").

5 On 19 January 1996, Raymond William Ashwin filed a Form in relation to an area of land in the Goldfields region of Western Australia (WC 96/8). Schedule A5 of the Form indicates that the application was

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made on behalf of the applicant and others who are simply described as "Wutha".

6 By registering the Wutha claims, Mr Raymond Ashwin became a registered native title claimant and a native title party: s 253 NTA. The NTA prohibits Government parties, including the State, from carrying out "permissible future acts" unless certain conditions are satisfied. In particular, s 31(1) provides that the Government party must:

"(a) give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

(b) negotiate in good faith with the native title parties and the grantee parties with a view to obtaining the agreement of the native title parties to:


(i) the doing of the act; or

(ii) the doing of the act subject to conditions to be complied with by any of the parties."

7 The original Form was amended on a variety of occasions. It is not necessary to discuss these amendments in detail. It is sufficient to note that in the description of other claimants contained in Schedule A5, "Wutha" was replaced with "The Ashwin Family" before being changed to "The Wutha People".

8 On 13 March 1996, Mr Raymond Ashwin lodged a further Form with the National Native Title Tribunal on behalf of the "Wutha Group" (WC 96/22). In January 1999, the Federal Court made orders to combine WC 96/22 and WC 96/8 and a further amended Form was filed. The single combined claim was accepted for registration in June 1999. Mr Geoffrey Ashwin, Mr Ralph Ashwin, and Ms June Ashwin were registered as co-claimants and together with Mr Raymond Ashwin they formed the native title party.

9 Prior to the 1998 amendments to the NTA, an application to hold native title only required the co-claimants to be described or otherwise identified. Section 61(3) provided that it was "not necessary to name them or to say how many there are". The 1998 amendments required further information. By s 61(4) it was provided that the application must either:

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"(a) name the persons; or,

(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons."

10 The claimants as presently described under the NTA (as at May 1999) are described by reference to their biological descent from named individuals, or their adoption in accordance with Wutha tradition; certain named individuals are, however, excluded from the group.

11 In the mid-1990s, Anaconda Nickel NL ("Anaconda") was developing a project that required a number of mining tenements to be granted in its favour. Some of the relevant tenements were located in the Wutha claim areas described above. However, "the creation of a right to mine, whether by the grant of a mining lease or otherwise" fell within the "future act" regime: s 26 NTA. The State was therefore prevented from granting the tenements until relevant negotiations had taken place with the native title party: s 31 NTA. Presumably in an attempt to speed up the process, Anaconda reached an agreement with Mr Raymond Ashwin and then approached the State advising that agreement had been reached. As a consequence, a State Deed was executed some time in 1996 (the Deed in the appeal books is undated). The parties to the State Deed were the State of Western Australia and the Minister for Mines, the native title party described in the Schedule (namely, Raymond William Ashwin (Wutha)) and Anaconda. The recitals to the State Deed stated that "[t]he parties have negotiated under subdivision B, division 3, part 2 of the Native Title Act in relation to the Government party's intention to grant the tenement."

12 An Ancillary Deed dated 6 September 1996 ("Ancillary Deed" or "Deed") was annexed to the State Deed. The parties to that Deed were Anaconda and "RAYMOND WILLIAM ASHWIN … in the capacity of Native Title Claimant for and on behalf of the Wutha People and Raymond William Ashwin (the 'Native Title Party')". "Native Title Party" is defined in the Deed to include "any other persons who become claimants pursuant to the Claim and includes Raymond William Ashwin and Wutha People".

13 The relevant tenements were granted to Anaconda. Those tenements, and the rights and obligations of the Ancillary Deed, were later assigned to the appellant, Minara Resources Ltd.

14 The obligations in the Deed are expressed, generally, as obligations of the "Native Title Party" and "Anaconda". For example, in cl 3,

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Anaconda agrees by cl 3.1 that it will not oppose the native title claim, while by cl 3.3 the "Native Title Party" agrees to perform a number of acts which would facilitate the grant of the mining tenements sought by Anaconda. The only exception to that pattern appears to be cl 9.2, by which Anaconda and the native title party "and Wutha People" all mutually agree "to employ their best management, commercial and financial endeavours to have the intent of the Parties under this clause fulfilled … ". Certain of the obligations undertaken by Anaconda are expressed to be obligations to do various things either for the benefit of the Wutha People, or for the benefit of the Wutha People and other Aboriginal people. The flavour of the Deed in that respect is reflected by the following extracts from it:

"4.1 Payment to Wutha People Fund

In consideration for the Native Title Party entering into this Deed, Anaconda agrees to pay to the Native Title Party upon execution of this Deed for and on behalf of Wutha the sum of $15,000 to be deposited into Wutha People's trust account with Mony De Kerloy and a further $10,000 upon either:

(a) The establishment of the Murrin Murrin Foundation; or

(b) The Native Title Party, by direct representation, making out a case of either hardship or necessity in which event Anaconda shall make the said payment to the Native Title Party.

6.1 Anaconda agrees to implement an Aboriginal Cultural Awareness programme from the construction stage and for the life of the Project which will include members of Wutha People in the formulation, management and running of such programme which members will be remunerated by Anaconda for their services at reasonable market rates and reimbursed for reasonable expenses incurred.

6.2 Anaconda agrees to include policies of non-racial discrimination in its Aboriginal Cultural Awareness programme and to implement management practices under which Anaconda's employees where they are found

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not to conform with the policy are appropriately disciplined.

…

7.1 Aboriginal Training and Employment


Anaconda agrees to assist with the development and implementation on an ongoing basis of a program of skill and employment training of members of Wutha People and other regional Aboriginals for suitable employment in the construction and production stages of the Project …

…

9.1 Awarding of Project Contracts


(i) Subject to this clause Anaconda agrees to give preference to the Native Title Party and members of Wutha People to the same extent as other regional Aboriginal groups in the awarding of contracts with regard to, but not limited to, the following activities and enterprises associated with the Project;

…

11.1 In the event that Anaconda or any assignee or joint venture partner lodges a notice of intent to mine it shall forthwith negotiate in good faith with the Native Title Party with the object of reaching agreement on, but not limited to the following matters before mining commences:


(a) Benefits or compensation;

…

(g) Aboriginal employment and training;

… "

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The respondents' claim

15 It is claimed by the respondents that the appellant has breached numerous terms of the Deed. Broadly, it is alleged that the appellant failed to consult with and keep the respondents informed regarding the appellant's ongoing exploration, mining and processing activity and that it has failed to carry out any of the obligations which are referable to its having given notices of intention to mine and to its having commenced mining operations.

16 It is further alleged that in entering into the Deed the appellant entered into a fiduciary relationship with the respondents, which relationship obliged it to negotiate with the respondents in good faith with the objective of reaching agreement on a variety of matters referred to in the Deed. It is alleged that those obligations have been breached.

17 In a proposed amended statement of claim, which was not before the Master, there is a further plea that, in the alternative, in entering into the Deed the appellant had no intention of negotiating or did not care whether or not it would negotiate in good faith with the respondents in the manner set out in the Deed, and that that conduct was unconscionable and contrary to s 51AA of the Trade Practices Act 1974 (Cth).

18 Relief claimed by the respondents includes specific performance of the Deed, equitable compensation, an account of profits and damages.

19 Before the Master, the appellant sought to strike out certain paragraphs of the statement of claim. The Master was persuaded that the pleading concerning the fiduciary relationship, in the statement of claim which was before him, was defective. He struck it out and gave unconditional leave to replead. The appellant also sought to strike out those paragraphs concerning the provisions of the Deed which contain, in effect, an agreement to negotiate and to reach agreement. It asserted that an agreement of that kind could not give rise to any legal obligations. While acknowledging the strength of that argument, and noting that there was real doubt on the authorities as to whether provisions of that kind were enforceable, the Master also noted that it was essential on a strike out application "not to stifle the development of the law", and noted that native title was a "new and evolving" area of the law (at [35]). The Master therefore declined to strike out those parts of the statement of claim. There is no appeal from the Master's rulings in relation to the strike out application.

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The pleading - plaintiffs

20 This appeal is concerned with the question of the proper plaintiffs, and with whether or not an order that the action be continued as a representative action was appropriate. It is therefore necessary to set out in some detail the history of the pleading and the argument relevant to these issues.

21 The original writ of summons and statement of claim filed on 6 September 2005 named as plaintiff "Raymond William Ashwin for and on behalf of the Wutha People". This largely corresponds with the description in the Deed of one of the contracting parties as "Raymond William Ashwin … who executes this Deed in the capacity of native title claimant for and on behalf of the Wutha People and Raymond William Ashwin". It pleaded that:

"1. The Plaintiffs are and were at all material times a native title party within the meaning of Section 253 of the Native Title Act 1993 ('NTA') ('the Native Title Party') and were a registered native title claimant of native title claims No's WC96/8 and WC96/22 …

…

3. Pursuant to Sub Division B of Division 3 of Part 2 of the NTA applying at the time of registration of the Plaintiffs' native title claim in 1996 the Plaintiffs had the benefit of the right to negotiate provisions of the NTA in respect of their registered native title claims and any permissible future act covered by s. 26 NTA."

22 There appears to be an ambiguity in the way in which the plaintiff or plaintiffs is or are described in that original statement of claim. It is not clear whether Mr Ashwin brings the action alone, but as representing the Wutha People in some way, or whether it is alleged that the Wutha People are also plaintiffs. Further, it is not clear whether the parties to the Deed are alleged to be Mr Ashwin and Anaconda, or the Wutha People and Anaconda.

23 In any event, when the statement of claim was served, the appellant, by its solicitors, raised with the respondents a concern somewhat different from that which we have just identified. They wrote:

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"The statement of claim refers to Mr Ashwin representing the 'Wutha People' yet does not identify which persons comprise the 'Wutha People'."

24 The letter went on to suggest that Mr Ashwin should either identify the persons comprising the Wutha People, and join them as co-plaintiffs, or at least identify the class with "sufficient particularity". This is a theme which has recurred throughout the appellant's correspondence and submissions.

25 The appellant's insistence on its alleged inability to identify the persons comprising the "Wutha People" has, apparently, substantially influenced the way in which the Master dealt with the application. It has been a distraction from the real issues. The Master seems to have regarded the appellant's claimed inability to identify the "Wutha People" as an unmeritorious one designed largely to delay proceedings (see [8]). That was no doubt because, in order to gain access to certain mining tenements, the appellant's predecessor in title was content to enter into an agreement with Mr Ashwin as representing the "Wutha People", and on the face of the Deed to undertake a variety of obligations towards the "Wutha People". A subsequent claim by the appellant that it simply has no way of knowing who the "Wutha People" might be does, in that context, appear somewhat disingenuous.

26 In any event, at a status conference on 29 September 2005, there was an order permitting the respondents to file and serve an amended statement of claim by 3 November 2005. Pursuant to that order, an amended writ and statement of claim were filed. Since the order of 29 September 2005 made no reference to amending the writ, the respondents' solicitors subsequently wrote to the appellant's solicitors seeking consent to the amendment of the writ. The amendments made by the documents filed on 3 November 2005 were before the Master. The description of the plaintiff was altered to delete the expression "for and on behalf of the Wutha People". Instead, the plaintiffs were described as Raymond William Ashwin, Geoffrey Alfred Ashwin, Ralph Edward Ashwin and June Ashwin.

27 The statement of claim asserted that "the plaintiff is a native title party …", and that the plaintiff was a registered native title claimant at certain dates. Amendments to other paragraphs of the statement of claim were made so as to describe the "plaintiff" in the singular rather than the plural. It seems reasonably clear that the statement of claim was intended to convey that the plaintiff was the native title party as defined by the

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NTA. The appellant's response to this was to suggest that there was no capacity in a native title party to conduct proceedings in that way. By letter dated 23 November 2005, the appellant's solicitors wrote to the respondents' solicitors in these terms:

"On our reading of that Act [the NTA], neither section [ie, s 41 or s 62A] gives the applicants to a native title claim the right to conduct representative proceedings in respect to a common law or equitable claim in the Supreme Court."

28 In the proceedings before the Master, the written submissions of the respondents were to the effect that the four persons named as plaintiff were suing in their capacity as native title party, pursuant to the NTA as amended. Their primary submission seems to have been that they had not brought, and did not need to bring, representative proceedings pursuant to O 18 r 12. The appellant's response to that was that, as counsel for the appellant said in her oral submissions to the Master, "[t]here's nothing in the Native Title Act that will tell you they [the respondents] can bring this action in the Supreme Court and flout the Supreme Court Rules in respect of joinder or representative capacities" (t/s 15).

29 For some reason which is not clear, the respondents' primary submission was never squarely dealt with by the Master. It may be that this occurred because, at some stage during the proceedings, counsel for the respondents, anticipating that the Master may not have been persuaded by the respondents' primary submission, adopted an alternative or fallback position to the effect that the respondents would be content for the action to proceed as a representative action.

30 Because the appellant had always asserted before the Master either that the proceedings being brought by the respondents were "really" representative proceedings, or that they ought to be brought as representative proceedings, and because a good deal of the appellant's argument before the Master focused upon the alleged difficulty of understanding who was comprised by the expression the "Wutha People", the Master in his reasons expressed the following views:

"18 As I understand the defendant's position, it says that in truth Mr Ashwin and/or the present plaintiffs are conducting what are generally called representative proceedings. That being so, it says that O 18 r 12(1) applies. That rule is in the following terms:

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'Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in Rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.'

19 This rule is not often relied upon - either in this jurisdiction or in other States which all have a broadly similar provision. However, the New South Wales equivalent of this rule did receive detailed consideration by the High Court in Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398. From this decision, two rules emerge which are of importance for present purposes. First, once the existence of numerous parties and the requisite commonality of interest are ascertained, the rule is brought into operation subject only to the exercise of the Court's power to order otherwise: per Mason CJ, Deane and Dawson JJ at 405. It is important to note that it is for the party commencing proceedings to determine whether or not it satisfies the requirements of O 18 r 12(1). No application has to be made to the Court to authorise representative proceedings. Those proceedings can be commenced by the party and 'unless the Court otherwise orders' continued. This is an important point that I will discuss further below.

20 The second point that emerges from the decision is that when considering whether representative proceedings should be allowed to continue, matters to be taken into account include whether representative proceedings would involve greater expense and prejudice than other modes of trial, whether consent is required from the group members, the right of members to opt out, the position of persons under a disability, alterations to the description of the group, settlement and discontinuance of the proceedings and notices to various group members.

21 Against that background, it is clear that not only are representative proceedings in this case appropriate, but that there is probably no other realistic way to proceed. This is a case where it would never be possible to determine with precision who might be included in the

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expression 'the Wutha People'. To undertake the exhaustive enquiries that the defendant seems to regard as necessary would be expensive, time consuming and ultimately unnecessary. There is an added safeguard. If the defendant upon making its own enquiries is concerned that particular individuals may not be included as part of the representative proceedings, these individuals can be joined separately as plaintiffs to the action. It lies in the hands of the defendant then to protect its position if it feels the need to do so.

22 The nature of these proceedings is also to be borne in mind. By their action, the plaintiffs seek to have the defendant comply with the terms of the deed in circumstances where they say the defendant has not done so. There is at present no question of any direct monetary benefit passing to any of the plaintiffs. In other words, the nature of the proceedings are not such that representative proceedings are inappropriate. It might be different if all of the individuals in the representative proceedings were entitled to some form of monetary payment by way of compensation. Then the particular circumstances of each individual may be relevant and representative proceedings may not be appropriate. But that is not the case here."

31 The Master then, having in effect foreshadowed that it would be appropriate for him to permit the proceedings to proceed as representative proceedings, indicated that he would hear the parties as to the precise form of orders. At that hearing, we were advised, counsel for the appellant made a submission as to the appropriate form of order which would reflect the Master's reasons, and that was the submission which was accepted by the Master and which came to be expressed in the Master's order (t/s 15).

The appeal

32 Pausing there, and drawing together some aspects of this summary of proceedings to date, we would make the following observations. The appellant has always, apparently, suggested that the appropriate form of proceedings would be a representative proceeding. The Master accepted that submission. The appellant framed the order in a way which was accepted by the Master. The appellant now seeks to appeal from that

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order. That is not a promising basis upon which to seek leave to appeal an interlocutory decision.

33 The appellant's difficulties in appealing from the order in fact made further appear from the amended grounds of appeal. They are:

"Ground 1

1. The Master erred in law by failing to consider whether the represented class was comprised of 'numerous persons' with the requisite 'same interest' in the proceedings as required by Order 18 rule 12(1) of the Rules of the Supreme Court.

Ground 2

2. The Master erred in law by failing to define with clarity the class of numerous persons with the same interest in the proceeding within the meaning of RSC O18 R12(1)."

34 Dealing with the grounds of appeal as they presently stand, we would simply make these observations. So far as ground 1 is concerned, it does seem that the Master did not specifically consider and identify the interest which it was that all members of the class had in the proceedings. However, the Deed which the respondents sought to enforce was one which had the effect that certain obligations were owed to all members of the represented class, although the benefits which might flow from the performance of those obligations in any individual case might, of course, differ. Similarly, the pleading was to the effect that a fiduciary duty was owed to all members of that class, although one can see that compensation for breach of the duty might be differently quantified in the case of different individuals. It may be that the Master regarded it as so obvious that the members of the Wutha People had the relevant "same interest" in these proceedings that it was unnecessary to refer specifically to it.

35 In our view, at least at the strike out stage, the Master would have been correct in that view. The leading case in this respect is still Carnie v Esanda Finance Corporation Ltd(1995) 182 CLR 398. The members of the represented class in that case were alleged to comprise the plaintiffs personally and all other persons who had, after a particular date, entered into particular types of contract with the defendant, where each contract had been varied in an identified way. That is, the requisite interest lay in each of the represented persons having entered into contracts of the same type, notwithstanding that the damages which might flow in any

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individual case would vary. There was held in that case to exist relevantly the "same interest" between the plaintiffs and the represented persons. In the present case, the interest is not entry into a contract of the same type, but the existence of a single contract conferring benefits of the same type on each member of the represented class. The similarity of interest is, in that respect, arguably greater than that existing in Carnie's case.

36 The submissions of the appellant in the present case, in seeking to suggest that there might arise differences between the various members of the represented class, particularly in relation to the relief to which they might be entitled, made certain errors which were identified in Carnie. They included focusing upon the relief, rather than the claim from which the relief flows, and focusing upon differences rather than on commonality (see Mason CJ, Deane and Dawson JJ at 404, Brennan J at 408, Toohey and Gaudron JJ at 417 - 418, 422, and McHugh J at 430).

37 It appears also that the appellant complains particularly about the Master's conclusions at [21] of the reasons quoted above, on the basis that there was no evidence before the Master to suggest that there were "numerous" members of the relevant group. However, as we read the argument before the Master, that seems to have been common ground. It may be that the Master went too far in concluding that there was probably no other realistic way to proceed, given the state of the evidence before him, but that overstatement would not, in our view, affect his conclusion.

38 So far as the present ground 2 is concerned, the complaint, to the extent that it asserts that the description "the Wutha People" cannot be an adequate description, is not sustainable. It is clear that the mere fact that membership of a group may fluctuate and may be difficult to catalogue does not lead to the result that a description of a class by reference to that group lacks adequate clarity: Duke of Bedford v Ellis [1901] AC 1, Carnie at 416 - 417 per Toohey and Gaudron JJ. Further, it is a notorious fact that Aboriginal groups in Australia have kinship rules by reference to which membership of a group can be ascertained. Those rules may evolve over time, and it may require some research or enquiry to ascertain them with precision. However, in our view, in the absence of some evidence suggesting that a particular group simply does not exist or that for some particular reason identification of the group is impossible or attended with unusual difficulty, it cannot be said that description by reference to a category such as the "[relevant Aboriginal group eg, Wutha] People" lacks sufficient precision. Actions brought by one or more Aboriginal people in the name of and as representing an Aboriginal group (the groups being variously described as "clans", "tribes" and "peoples") have been a feature

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of Australian law for over 30 years: eg, Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 146, Mabo v Queensland (No 2) (1992) 175 CLR 1 (especially the form of declaration at 16 and 76).

39 There is one aspect of the second ground of appeal which has merit, but it seems to us to be a relatively minor matter. It arises because in the statement of claim before the Master the respondents sued as the "native title party". As we have noted earlier, the description of the native title party in the proceedings brought under the NTA has altered somewhat from time to time. It may be that the persons comprised in the claimant group have not altered, but simply that the description of the group has been more or less precise at different times. However, given that there has been an alteration, it seems to us that it is arguable that the respondents should be required to specify with particularity which of those various descriptions is to be regarded as the one incorporated in the statement of claim.

The argument before us

40 It is not, however, necessary to determine whether the appellant should be granted leave, or whether if leave is granted the appeal should be allowed, based upon the appellant's grounds of appeal. There are two reasons for that. The first is that the appellant itself, before us, seems to have regarded its grounds as being superseded in some way by a minute of further amended statement of claim dated 18 October 2006, and filed and served following the Master's decision. At least some of the appellant's complaint before us was concerned with the fact that, as the appellant alleged it, that minute of further amended statement of claim did not "comply with" or accurately reflect the Master's ruling (see t/s 8). That is, we were invited to deal not with the ruling made by the Master in the context of the documents before him, but in some way to consider the new statement of claim.

41 The second reason is that the respondents assert that they have never resiled from their position that the action ought not to proceed as a representative action, although "in the alternative" they would bring an action of that kind if the Court were of the view that they were required to do so (t/s 5). Notwithstanding that they have not appealed from the Master's decision, they agree that they are dissatisfied with it (see t/s 34, 41). Neither party, then, wishes the order made by the Master to remain on foot.

42 The order of the Master which in effect constituted the proceeding as a representative one should be set aside. It was not an order sought by

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either party. As a matter of construction of O 18 r 12, although it is not necessary to decide the question, it appears that the Court has no power to order that a proceeding be a representative proceeding, as the Master has purported to do. That rule suggests that the only role for the Court is to determine either: whether the proceeding satisfies the description in r 12(1), if it is purportedly brought as a representative proceeding; or whether, assuming it satisfies the description, it should be continued as such a proceeding. Rule 12(1) is in contrast with O 18 r 12(2) which expressly permits the Court at any stage to nominate a defendant as representing all or some of a class of defendants or persons. It would appear that r 12(1) contemplates that only the plaintiff is able to decide whether a proceeding should be commenced as a representative proceeding. That view is consistent with the observations of Toohey and Gaudron JJ in Carnie (at 415) that it is important to separate out the two questions of whether the proceeding falls within the scope of the rule, and whether it should be permitted to continue in that form.

43 We note also that Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (No 2) (1999) 166 ALR 74 doubted whether, in the case of a proceeding which had commenced as a representative proceeding under the Federal Court of Australia Act 1976 (Cth) but which had at some stage been ordered not to proceed in that way, there was any power in the Court to "reconstitute" the proceeding so that it could again continue as a representative proceeding. That point was not taken by the appellant in this case, but we mention it for completeness. It seems to us that his Honour's reasoning would not apply to the Rules of the Supreme Court1971 (WA). That is because Pt IVA of the Federal Court of Australia Act 1976 prescribes the consequence of the Court ordering that proceedings not continue under that Part. That consequence is, as Lindgren J held, to take the proceeding outside the scope of Pt IVA altogether. By contrast, where a proceeding once answers the description in O 18 r 12 of being a proceeding where numerous persons have the same interest and the proceeding is begun by one or more of them, there would appear to be no reason why the Court could not vary an order earlier made that the proceeding not continue in that way. It would be odd if a rule intended to promote flexibility and convenience were read otherwise.

Appropriate orders in this appeal

44 As we understood the argument before us, both parties accept that it is necessary for the respondents' pleading to make it clear not only who is suing, but the basis upon which, and the capacities in which they sue. As

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we understand it, both agree that there is at present no statement of claim which satisfactorily deals with that issue. Taking the contract claim, for example, as we understand it both parties accept that it is not easy to discern from the present pleading (that is, from the minute dated 18 October 2006) whether the parties to the Deed are alleged to be the four named plaintiffs (in their personal or some other capacities) or each individual member of the group described as the "Wutha People" or the legal basis for the claim when the sole signatory to the Deed was Mr Ashwin.

45 It is conceded that in that respect, the reasons and the order of the Master are defective, not because of what the reasons hold and the orders do, but because of matters with which the reasons do not deal. That those defects are traceable largely to the way in which the proceedings before the Master were run, on both sides, should not, given the importance of the issues involved, preclude this Court from quashing the orders made, and from making further directions with a view to ensuring that the matter henceforth proceeds on a proper footing.

46 There are a considerable number of matters to which attention should be given if the claim is to proceed on a proper basis. In summary, it will be necessary to identify the parties to the deed, the way in which the fiduciary duty is claimed to have arisen, the persons to whom the fiduciary duty is owed, and in each case the plaintiff(s) and the capacity or capacities in which he or they sue.

47 It is important to note that it is not for a court to dictate to a party how it should plead its claim. It is also important to note that, although the majority of the issues to which we now turn were mentioned at some time or another during the course of the argument before us, no argument was specifically addressed to any of these alternatives, with a view to demonstrating that it either was or was not an accurate way to understand either the Deed or the respondents' claim. The discussion which follows is solely for the purpose of recording the sorts of matters which should be, but do not appear to be, addressed by the respondents' present pleading.

48 We would also note that it may be accepted that some of the possibilities mentioned hereunder may not readily appear to be appropriate to the circumstances of the respondents. We mention all of them however, since it may well be that traditional legal concepts such as agency, or trust, or contract, may be required to be adapted to the extent necessary to accommodate "the context of the novel concepts and arrangements that have been introduced in Australia by statute in recent

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years to meet demands for Aboriginal land rights and to provide appropriate models for the advancement of the Aboriginal race": The Queen v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374 at 392 per Wilson J.

49 Having made those observations, we now simply list, in a way which may not be exhaustive, some of the ways in which the Deed may be understood. There may be other views which we have not considered. It is necessary for the respondent(s) to identify the way in which he or they assert or asserts the Deed should be understood (pleading, if it appears to be necessary to do so, in the alternative).

50 As to the claim in contract, the identity of the parties is fundamental, going to the existence of the contract itself: Homburg Houtimport BV v Agrosin Private Ltd [2004] 1 AC 715 at 794, per Lord Millett. As well as identifying the parties, the plaintiffs must be properly identified. There are a number of possibilities:

• It may be arguable that, as the written submissions of the respondents assert, the NTA both as it was in 1993 and as amended in 1998, in creating the status of "native title party" necessarily created with that status a capacity in the native title party to enter into contracts on behalf of the Aboriginal people on whose behalf the native title claim is made, and a capacity to sue to enforce such a contract. The respondents assert that, if that were not so, the objects of the Act which include the recognition and protection of native title, and the establishing of ways in which future dealings affecting native title may proceed (s 3), together with the elaborate "right to negotiate" procedure, would be rendered largely ineffective. The respondents seek to draw on provisions to be found in the 1998 amendments, such as s 251B, to the extent that they can be characterised as procedural ones, to support a claim that there is some sui generis capacity to contract and to enforce, in the persons who from time to time constitute the native title party. These arguments have yet to be properly considered.

• It may be arguable that the only parties to the Deed were Anaconda and Mr Ashwin, with Mr Ashwin the trustee of a promise to benefit third parties (the third parties being the Wutha People). In that case, unless the trustee

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neglects or improperly refuses to commence proceedings, the trustee is the only appropriate party: State of South Australia v Peat Marwick Mitchell & Co (1997) 24 ACSR 231 at 257, per Olsson J. In order to demonstrate the existence of a trust of a contractual promise for the benefit of third parties, there should be pleaded material which if proved would demonstrate that: the subject-matter of the trust is a promise which would either give the trustee benefits to hold for third persons, or alternatively bestow a benefit directly upon the third persons; the benefits were adequately described; that there is either an express or implied intention that the benefits be held on trust; and that the beneficiaries are ascertainable: see Ford, et al "Principles of the Law of Trusts" at [4003], [4010], [4100] - [4130].

• Alternatively, if the respondents wished to plead that the Deed gave rise to a charitable trust, the respondents would need to plead the purpose, rather than the persons, for whom the trust was created: see Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 414. The respondents should, in that respect, clarify in their pleading whether it is intended to rely upon the references to "other regional Aboriginals" in cl 7 and cl 9 of the Deed, and, if so, to plead material facts which would clarify how "regional" Aboriginal persons were to be identified, in a way which either identified the purpose or the persons for which or for whom the trust existed.

• If the respondents assert that the Deed was entered into by Mr Ashwin as agent of the Wutha People, or of the three other named plaintiffs, it would be necessary to plead how the agency relationship arose, either through actual authority (pleading material facts relevant to that authority) or constructive authority (pleading material facts relevant to that) or alleging that the agency relationship arose pursuant to the NTA (as to which see Toohey at 386).

• If it is intended to plead that the Deed was entered into by the Wutha People as a collective, or effectively as an unincorporated association, it would appear that it will be necessary to plead that it was intended to bind only those

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individuals who formed part of the Wutha People at the time at which it was executed (Amey v Fifer [1971] 1 NSWLR 685), although such a pleading would not on its face be easy to reconcile with the definition of "native title party" in the definitions and interpretation section of the Deed. If there were some extrinsic evidence which was to be relied upon in providing some other understanding of the group with which it was alleged the appellant had contracted, it would be necessary to plead the material facts said to lead to such an understanding, consistently with Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 at 352.

• If it were intended to plead that the Deed was entered into by all, or some section, of the "Wutha People", then it would also be necessary pursuant to O 18 r 4(2) to join all of the relevant co-contractors as plaintiffs, unless the Court "gives leave to the contrary". Presumably the Court would only give leave to the contrary if satisfied that some appropriately formulated representative proceeding pursuant to O 18 r 12 would be equally or more convenient and would not adversely affect the rights of the appellant.

51 The claim for breach of fiduciary duty and the Trade Practices Act claim were barely touched upon in the course of the argument before us. It was accepted that different considerations might arise in relation to the claim for breach of contract and the claim for breach of fiduciary duty. For example, even if Mr Ashwin alone were the appropriate plaintiff in respect of a claim for breach of contract, it might be that a fiduciary duty could be owed to some or all of the Wutha People so as to enable some or all of them to sue in their personal capacities for breach of it. If that were so, then it might well be desirable for Mr Ashwin, alone or with others, to bring proceedings in respect of the fiduciary claim in a representative capacity. It would be necessary for the respondents to plead how the fiduciary duty was alleged to arise, so that it could be ascertained who were the appropriate parties or who were the members of the class to be represented. It would be necessary, if something more than the bare Deed were to be relied upon - for example, if some knowledge on the part of Anaconda or some representations allegedly made by Anaconda were relevant - to plead material facts about them. There being no appeal by the respondents from that portion of the Master's reasons dealing with the previous pleading relating to breach of fiduciary duty, it would be
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necessary for the respondents to deal with the issues raised by that portion of the Master's reasons.

52 We turn now to the question of the formal orders which should be made. The appellant's Minute of Amended Orders Wanted, dated December 2006, seeks relief which goes far beyond the issues raised in the Amended Grounds, and far beyond the issue considered at the hearing before us. Considering the orders made by Master Sanderson, dated 19 September 2006, it would be appropriate to set aside order 1 of those orders. Order 2 has been complied with by delivery of the Minute of Further Amended Statement of Claim of 18 October 2006, but the respondents will presumably seek to replead in the light of these reasons. There would appear to be no reason to interfere with orders 3 to 6 inclusive, which deal with the appellant's partially successful application to strike out the amended statement of claim of 3 November 2005. We propose to make available an advance copy of these reasons, and to direct that the parties confer and provide a minute or minutes of orders to be made. We would add that our provisional view is that it would be appropriate that the costs before the Master, and in this appeal, be in the cause.