Quall v Northern Land Council - [2018] FCA 989

FEDERAL COURT OF AUSTRALIA
Quall v Northern Land Council [2018] FCA 989

File numbers: NTD 45 of 2017
NTD 54 of 2017

Judge: REEVES J

Date of judgment: 29 June 2018

Catchwords: NATIVE TITLE – application for review of a representative body’s decision to certify an application for registration of an Indigenous Land Use Agreement under s 203BE of the Native Title Act 1993 (Cth) (the NTA) – the history of amendments to the functions of representative bodies under the NTA – whether the certification function under s 203BE(1)(b) of the NTA is delegable – whether the power in s 203BK of the NTA operated to allow a valid delegation of the certification function – whether this certification function had been validly delegated in circumstances where the delegation occurred before the certification function came into existence – whether a certification was a valid certification for the purposes of s 24CG(3)(a) of the NTA

Legislation:
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Acts Interpretation Act 1901 (Cth)

Acts Interpretation Amendment Act 1911 (Cth)

Australian Securities Commission Act 1989 (Cth)

Corporations Law

Native Title Act 1993 (Cth)

Clean Air Act 1961 (NSW)

Explanatory Memorandum, Acts Interpretation Amendment Bill 2011

Cases cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Australian Chemical Refiners Pty Ltd v Bradwell (unreported, New South Wales Court of Criminal Appeal, Street CJ, Slattery and Finlay JJ, 28 February 1986)

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560

Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75

Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409

Newcrest Mining Limited v Thornton (2012) 248 CLR 555; [2012] HCA 60

Northside Developments Proprietary Limited v Registrar-General (1990) 170 CLR 146

O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1

Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Bartlett, RH Native Title in Australia (3rd ed, LexisNexis Butterworths, 2015)

Date of hearing: 15 June 2018

Registry: Northern Territory

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 41

Counsel for the Applicants: P McIntyre

Solicitor for the Applicants: Matthews Legal

Counsel for the Respondents: P Willis SC

Solicitor for the Respondents: Northern Land Council

ORDERS

NTD 45 of 2017

BETWEEN:
KEVIN LANCE QUALL

Applicant

AND:
NORTHERN LAND COUNCIL

First Respondent

JOE MORRISON AS CHIEF EXECUTIVE OFFICER OF THE NORTHERN LAND COUNCIL

Second Respondent

JUDGE:

REEVES J

DATE OF ORDER:

29 JUNE 2018

THE COURT DECLARES THAT:
1.The first respondent has not, by a certificate dated 13 March 2017 signed by the second respondent, certified…

Grounds of appeal

[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

Case: [2018] FCA 989
Decision Date: 29 June 2018

CaseChat Overview and Summary

Quall v Northern Land Council concerned an application for review of the Northern Land Council's decision to certify an application for registration of an Indigenous Land Use Agreement (ILUA) under section 203BE of the Native Title Act 1993 (Cth). The dispute hinged on whether the Northern Land Council (NLC) had the authority to delegate its certification function under section 203BE(1)(b) of the NTA, and if such a delegation was valid given the sequence of events. The case was heard in the Federal Court of Australia.

The court was required to determine several key legal issues: whether the certification function was delegable under the NTA, whether the NLC's resolution to delegate this function was valid, and whether the delegation was effective given it occurred before the function was established. Another critical issue was whether the certification in question met the requirements of section 24CG(3)(a) of the NTA.

The court found that the NLC, while exercising certain functions under Part 11 of the NTA, did so as a statutory body corporate rather than a statutory authority. Consequently, the authority of its Council members and CEO was akin to that of a body corporate, where individual directors can only bind the company through a board resolution. The court concluded that neither the 1996 resolution nor the 2000 instrument validly delegated the certification function to the CEO. As a result, the NLC had not properly performed its functions under section 203BE(1)(b) of the NTA in certifying the ILUA application. Therefore, the certificate was not valid under section 24CG(3)(a) of the NTA.

ORDERS:
1. The first respondent pay the applicant’s costs.

Orders

Orders of the court

1. The first respondent pay the applicant’s costs.

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

Secondly, while the NLC exercises certain functions under Part 11 of the NTA, I do not consider it is, in that capacity, exercising those functions as a statutory authority. Rather it does so as a statutory body corporate. In those circumstances, aside from cases concerning the indoor management rule which does not arise in this matter, the actual authority of its Council members and CEO is more analogous to that of a body corporate where: “A director’s normal power is to bind the company only by joining with other directors in a resolution of the board of directors” (see Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 at [150] citing Northside Developments Proprietary Limited v Registrar-General (1990) 170 CLR 146 at 198 and 205).CONCLUSION – THE CERTIFICATE WAS NOT VALID FOR THE PURPOSES OF SECTION 24CG(3)(a) As has been noted above, the certificate purported to comply with the requirement of s 24CG(3)(a) of the NTA that the ILUA registration application “must … have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area”. As has also been noted above, Mr Morrison issued the certificate “as the delegate of the NLC pursuant to the authority conferred upon the position of CEO” under the resolution of 1 October 1996 and as confirmed by the 10 March 2000 instrument. Since I have concluded that neither of those acts of the NLC conferred that delegated authority on the CEO, it necessarily follows that the ILUA application has not been duly certified by the NLC “performing [its] functions under paragraph 203BE(1)(b)” of the NTA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File numbers:	NTD 45 of 2017 NTD 54 of 2017
Judge:	REEVES J
Date of judgment:	29 June 2018
Catchwords:	NATIVE TITLE – application for review of a representative body’s decision to certify an application for registration of an Indigenous Land Use Agreement under s 203BE of the Native Title Act 1993 (Cth) (the NTA) – the history of amendments to the functions of representative bodies under the NTA – whether the certification function under s 203BE(1)(b) of the NTA is delegable – whether the power in s 203BK of the NTA operated to allow a valid delegation of the certification function – whether this certification function had been validly delegated in circumstances where the delegation occurred before the certification function came into existence – whether a certification was a valid certification for the purposes of s 24CG(3)(a) of the NTA
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Acts Interpretation Act 1901 (Cth) Acts Interpretation Amendment Act 1911 (Cth) Australian Securities Commission Act 1989 (Cth) Corporations Law Native Title Act 1993 (Cth) Clean Air Act 1961 (NSW) Explanatory Memorandum, Acts Interpretation Amendment Bill 2011
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Australian Chemical Refiners Pty Ltd v Bradwell (unreported, New South Wales Court of Criminal Appeal, Street CJ, Slattery and Finlay JJ, 28 February 1986) Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409 Newcrest Mining Limited v Thornton (2012) 248 CLR 555; [2012] HCA 60 Northside Developments Proprietary Limited v Registrar-General (1990) 170 CLR 146 O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Bartlett, RH Native Title in Australia (3rd ed, LexisNexis Butterworths, 2015)
Date of hearing:	15 June 2018
Registry:	Northern Territory
Division:	General Division
National Practice Area:	Native Title
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Applicants:	P McIntyre
Solicitor for the Applicants:	Matthews Legal
Counsel for the Respondents:	P Willis SC
Solicitor for the Respondents:	Northern Land Council