QGC PTY LIMITED ACN 089 642 553 v LOUISE BYGRAVE, DELEGATE OF THE NATIVE TITLE REGISTRAR and RUSSELL TATOW, PATRICK SILVESTER, CYNTHIA KEMP, EVE FESL, TROY NOBLE, FRED TULL, FERGUS WATERTON, RICHARD DOYLE AND MADONNA BARNES ON BEHALF OF THE IMAN PEOPLE #2
File number:
QUD 147 of 2010
Judge:
REEVES J
Date of judgment:
23 June 2010
Catchwords:
PRACTICE AND PROCEDURE – application of Native Title Representative Body to be made a party to proceedings – consideration of whether the Representative Body has a sufficient interest in the decision the subject of the proceedings and whether the Court should exercise its discretion to allow it to be made a party – Representative Body found to have a sufficient interest in the decision as it will affect the number and diversity of the native title holders it is to represent and will affect how is discharges its functions under the Native Title Act 1993 (Cth) – this interest is direct and demonstrable and goes beyond a mere emotional or intellectual concern
PRACTICE AND PROCEDURE – “solicitor on the record” described as the Principal Legal Officer of the Representative Body – a party does not comply with the relevant Federal Court Rule by identifying his or her solicitor by a job title – “solicitor on the record” has important duties to the Court and his or her role is critical to the Court’s ability to ensure that cases are managed efficiently, promptly and inexpensively
PRACTICE AND PROCEDURE – consideration of whether a conflict of interest may arise if Representative Body made a party to the proceedings – Representative Body seeking to advance a construction of a section of the Native Title Act 1993 (Cth) which, if accepted, could be adverse to the interests of a group of native title claimants that a solicitor engaged by the Representative Body is representing in other proceedings – a solicitor acting for a client has among other fiduciary obligations to that client a duty of undivided loyalty – duty includes a proscription against a solicitor at the same time acting both for and against the client in the same proceedings and in some cases in related matters – duty must be manifestly and undoubtedly discharged – solicitors should not be seen to readily “change sides” – however there must be an actual conflict between duties before a solicitor is placed in a position of conflict – duty imposes only proscriptive or negative duties – a fiduciary must not place him or herself in a position where there is or may be a conflict between duties owed and he or she must not profit from the relationship – Held that no situation could be identified where the duties of the solicitor on the record were in actual conflict – two sets of proceedings not sufficiently related
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
QGC Pty Ltd v Bygrave [2010] FCA 659
Case
[2010] FCA 659
Decision Date
CaseChat Overview and Summary
The case of QGC Pty Ltd v Bygrave involved QGC Pty Ltd challenging the decision of a Delegate of the Registrar of the Federal Court, who refused to give notice of an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993 (Cth). The ILUA was negotiated between QGC and the Iman People, a native title claim group, for the development of a liquefied natural gas project in the Surat Basin. However, one of the nine persons in the claim group, Ms Madonna Barnes, refused to sign the agreement, leading the Delegate to conclude that the agreement did not meet the requirements of s 24CD(1) of the Act, which necessitates all persons in the native title group to be parties to the agreement. The primary legal issues in this case were whether Queensland South Native Title Services Limited, a recognised representative body under the Act, had a sufficient interest in the decision to be made a party to the proceedings, and whether there was a conflict of interest if the body was allowed to participate.
The court found that Queensland South had a sufficient interest in the decision as it would affect the number and diversity of the native title holders it represented and how it discharged its functions under the Act. The interest was direct and demonstrable, extending beyond mere emotional or intellectual concern. Regarding the conflict of interest, the court held that no actual conflict could be identified as the duties of the solicitor on the record were not in conflict, and the two sets of proceedings were not sufficiently related.
The court exercised its discretion under the Federal Court Rules to allow Queensland South to be made a party to the proceedings. The court noted that the solicitor on the record, described as the Principal Legal Officer of the Representative Body, had important duties to the Court, and it was critical to the Court’s ability to ensure that cases were managed efficiently, promptly, and inexpensively for a party to identify their solicitor by name rather than a job title. Consequently, the court ordered that Queensland South Native Title Services Limited be made a party to the proceedings.
Orders
Orders of the court
1. Queensland South Native Title Services Limited be made a party to the proceedings.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
As the Full Court made clear in United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 (“US Tobacco”) at 526, there are two matters to be considered in an application of this kind. In order, they are:·whether Queensland South has a sufficient interest in the decision the subject of these proceedings; and·if it does, whether I should exercise my discretion to allow it to be made a party in the proceedings.THE DECISION THE SUBJECT OF THESE PROCEEDINGS Before turning to consider these two matters, it is appropriate to provide some background to the decision which is the subject of these proceedings. The second respondents, on behalf of the Iman People, are together the registered native title claim group in a native title determination application made under s 61 of the Native Title Act 1993 (Cth) (“the Act”). That claim is known as the Iman #2 claim. Queensland South is a recognised representative body under s 203AD of the Act. As such, it has been given responsibility for representing the interests of native title holders in the area of southern Queensland. That area includes the claim area of the Iman #2 claim. QGC Pty Limited, the applicant in these proceedings, wishes to develop a liquefied natural gas project in the Surat Basin in southern Queensland on land which includes the claim area of the Iman #2 claim. To do so, and address the future act requirements of the Act, QGC has negotiated an Indigenous Land Use Agreement (“ILUA”) with the Iman People in relation to the whole of the claim area. That Agreement has been signed by eight of the nine persons comprising the native title claim group in the Iman #2 claim. The ninth person, Ms Madonna Barnes, refuses to sign it. Notwithstanding this, on 9 March 2010, QGC applied to the Native Title Registrar to have the Agreement registered on the Register of ILUAs under s 24CG of the Act. On 20 April 2010, a duly appointed Delegate of the Registrar refused to give notice of the Agreement under s 24CH of the Act. Since such a notice is an essential pre-condition for the registration of an agreement as an ILUA, the Delegate’s refusal is tantamount to a refusal to register the Agreement as an ILUA. The key reason for the Delegate’s refusal to give this notice was her conclusion that, since Ms Barnes had not signed the Agreement, it did not comply with the requirements of s 24CD(1) of the Act, which are part of the pre-conditions for the Agreement meeting the requirements for an ILUA under s 24CA of the Act. Section 24CD(1) of the Act relatively provides: “All persons in the native title group … must be parties to the agreement”. QGC has filed these proceedings to challenge the correctness of the Delegate’s decision. It relies upon s 5 of the Administrative Decisions (Judicial Review) Act 1977 and s 39B of the Judiciary Act 1903 (Cth). The Delegate is the first respondent to these proceedings and, as I have already mentioned, the second respondents are the native title claim group in the Iman #2 claim.