FEDERAL COURT OF AUSTRALIA
QGC Pty Limited v Alberts [2020] FCA 1869
File number(s): QUD 334 of 2018 Judgment of: RARES J Date of judgment: 21 December 2020 Catchwords: PRACTICE AND PROCEDURE – application by cross-claimants for four individuals to be joined to the proceedings under r 9.05 of Federal Court Rules 2011 – where individuals sought to be acknowledged as successors to deceased or incapacitated signatories of an area agreement registered on the Register of Indigenous Land Use Agreements under s 199B of the Native Title Act 1993 (Cth) – where no evidence other than self-assertion provided to support right as “successor” – land use agreement did not create rights transmissible on death to family members – reference to successors in agreement was to successors in office – application dismissed Legislation: Native Title Act 1993 (Cth) ss 24CA, 24CD, 24CG, 199B,
Federal Court Rules 2011 r 9.05
Cases cited: In re Delany, Conoley v Quick [1902] 2 Ch 642 Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 13 Date of hearing: 21 December 2020 Solicitor for the Cross-Claimants: Mr T Hauff of Trevor Hauff Lawyers Counsel for the Cross-Respondent: Ms E Longbottom QC Solicitor for the Cross-Respondent: Norton Rose Fulbright Counsel for the Eighth Respondent: Mr Graham Carter Eleventh Respondent: Self-represented Counsel for the Twelfth Respondent: Ms A Thakur Solicitor for the Twelfth Respondent: Mitry Lawyers ORDERS
QUD 334 of 2018 BETWEEN: QGC PTY LTD
Applicant
AND: NATALIE ALBERTS
First Respondent
KENNETH BONE
Second Respondent
MONA BOOTH (and others named in the Schedule)
Third Respondent
AND BETWEEN: MONA BOOTH (and others named in the Schedule)
First Cross-Claimant
AND: QGC PTY LTD
Cross-Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
21 DECEMBER 2020
THE COURT ORDERS THAT:
1.The further amended interlocutory application of the cross-claimants dated 21 January 2020 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
The cross-claimants in their further amended interlocutory application seek orders pursuant to rr 9.05, 9.09 or 9.11 of the Federal Court Rules 2011 that they be substituted for their relatives, who have either passed away or lack capacity, to act as a party in these proceedings. Each of the parties to the proceedings other than the applicant, QGC Pty Limited, and the three respondent corporations, BCJWY Aboriginal Society Limited (in liq), Murra Downs Limited and Boonyi Downs Pty Limited, was an individual who was a personal signatory to the Indigenous Land Use Agreement (ILUA). The ILUA was between QGC and 14 individuals who were collectively called the “Native Title Party” in it.
The ILUA was an area agreement within the meaning of s 24CA of the Native Title Act 1993 (Cth). Section 24CD(1) of the Act required that all persons in the native title group in relation to the area be parties to the ILUA. The ILUA was registered as QI2010/006 on 22 December 2010…
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- Case
- [2020] FCA 1869
- Decision Date
CaseChat Overview and Summary
The court held that there was no evidence other than self-assertion to support the applicants' claims to be successors to the deceased or incapacitated signatories. The court found that the land use agreement did not create rights transmissible on death to family members and that the reference to successors in the agreement was to successors in office. The court further held that the definition of "party" in the agreement included "successors," but that the word "successors" must be construed in the context of clause 2(b) of the agreement. The court found that the signatories comprising the native title party were akin to holders of an office under the agreement and that the purpose of the use of the word "successors" in the agreement was to ensure that a person could replace the deceased or incapable parent's position as a representative of a particular family group or groups on whose behalf they signed the agreement. The court concluded that none of the applicants had any status to suggest that they ought to have been joined originally as a party to the proceeding or that their joinder was necessary to ensure that each issue in dispute was able to be finally determined. The court therefore dismissed the application.
In conclusion, the court found that the cross-claimants' application for four individuals to be joined to the proceedings under rule 9.05 of the Federal Court Rules 2011 was dismissed. The court held that there was no evidence other than self-assertion to support the applicants' claims to be successors to the deceased or incapacitated signatories. The court found that the land use agreement did not create rights transmissible on death to family members and that the reference to successors in the agreement was to successors in office. The court held that the definition of "party" in the agreement included "successors," but that the word "successors" must be construed in the context of clause 2(b) of the agreement. The court found that the signatories comprising the native title party were akin to holders of an office under the agreement and that the purpose of the use of the word "successors" in the agreement was to ensure that a person could replace the deceased or incapable parent's position as a representative of a particular family group or groups on whose behalf they signed the agreement. The court therefore dismissed the application.
Orders
Orders of the court
1. The further amended interlocutory application of the cross-claimants dated 21 January 2020 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The cross claimants asserted that there was no process under the ILUA by which any person who, in fact, signed as one of the native title party required any particular form of authorisation or status beyond merely signing it, and that, therefore, no corresponding restriction ought exist for each of them in seeking, in effect, to replace their parent as a party both to the ILUA and to the proceeding. They contended that the ILUA and the Court’s Rules did not set any preconditions that could preclude each of them asserting an entitlement to be joined as a party to the proceedings and to act as the “successor” of the respective parent under the ILUA.Consideration In my opinion, there is no basis on which r 9.05 could support the joinder applicants being made a party to the proceeding. That is because none of the joinder applicants had any status to suggest that he or she ought to have been joined originally as a party to the proceeding or was a person whose joinder is necessary to ensure that each issue in dispute is able to be finally determined, or otherwise falls within the requirements of r 9.05(1)(b). There was no evidence of a grant of probate or letters of administration in favour of any joinder applicant who sought to be joined as a result of their parent’s death or evidence of a legal right to act on behalf of a living, but incapable, parent, so as to demonstrate any basis that could avail their position in support of this application. Moreover, there is no basis under the terms of the ILUA, by which any of the persons who formed the native title party, who were signatories to it on behalf of family groups as provided in cl 2(b)(iii), had a right transmissible on their death to a member of their family or anyone else capable of being a devise by will or enforceable upon an intestacy. The definition of a “party” in cl 1.2(h) of the ILUA includes “successors”. However, in my opinion, the word “successors” must be construed in the context of cl 2(b) of the ILUA. The ILUA is a document given statutory force that operates to confer benefits, through distributions by a trustee company, upon family groups represented by particular individuals who signed it. In that context, I do not consider that any of the signatories comprising the native title party is a person who could create a “successor” for the purposes of the ILUA by use of a devise in a testamentary instrument or by operation of law following that person dying intestate. The 14 individuals comprising the native title party, as defined in the ILUA, were akin to the holders of an office under it by reason of the authority to sign it conferred by the relevant family pursuant to cl 2(b)(iii). In my opinion, the purpose of the use of the word “successors” in cl 1.2(h) in the definition of “party” must be to ensure that a person can replace the deceased or incapable parent’s position as a representative of a particular family group or groups on whose behalf he or she signed the ILUA as reflected in cl 2(b)(iii) and s 24CG(3). The situation is similar to that described by Farwell J in In re Delany, Conoley v Quick [1902] 2 Ch 642 at 646, where his Lordship said of a legacy in a will: the legacy is given to the three ladies as holders of offices and for the benefit of the association in which they held office. The primary meaning of the word “successors” is persons in succession. The persons named were known to the testator to be holders of offices in the association, and the only succession to which he can refer is the succession to those offices. The persons named are not intended to take any personal benefit, but are designated only as the then holders of office, and the gift to them depended on their continuance in such office. (emphasis added)