Smith v Marapikurrinya Pty Ltd (No 2) - [2011] FCA 733

FEDERAL COURT OF AUSTRALIA
Smith v Marapikurrinya Pty Ltd (No 2) [2011] FCA 733

Citation: Smith v Marapikurrinya (No 2) [2011] FCA 733

Parties: GENE SMITH, MARY ATTWOOD, GEORGE DANN, SHIRLEY LOCKYER, PATRICIA MASON and ROBERT DANN v MARAPIKURRINYA PTY LTD (ACN 127 500 136), DIANA ROBINSON and KERRY ROBINSON

File number: WAD 31 of 2010

Judge: GILMOUR J

Date of judgment: 28 June 2011

Legislation: Federal Court of Australia Act 1976 (Cth) s 21
Trade Practices Act 1974 (Cth) ss 52, 82 and 87

Cases cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Competition & Consumer Commission v Dataline.Net.Au Pty Ltd [2006] 236 ALR 665

Australian Competition & Consumer Commission v Grove & Edgar Pty Ltd [2008] FCA 1956
Australian Competition & Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79
Bank of Kuwait and the Middle East v Ship MV “Mawashi Al Gasseem” (No 2) (2007) 240 ALR 120
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55
Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809
Smith v Marapikurrinya Pty Ltd [2010] FMCA 5
Smith v Marapikurrinya Pty Ltd [2011] FCA 330
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89

Date of hearing: 16 June 2011

Place: Perth

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 26

Solicitor for the Applicants: Mr A Rumsley

Solicitor for the Respondents: Mr Lee Christensen of Christensen Vaughan

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 31 of 2010

BETWEEN:
GENE SMITH
First Applicant

MARY ATTWOOD
Second Applicant

GEORGE DANN
Third Applicant

SHIRLEY LOCKYER
Fourth Applicant

PATRICIA MASON
Fifth Applicant

ROBERT DANN
Sixth Applicant

AND:
MARAPIKURRINYA PTY LTD (ACN 127 500 136)
First Respondent

DIANA ROBINSON
Second Respondent

KERRY ROBINSON
Third Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

28 JUNE 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 31 of 2010

BETWEEN:
GENE SMITH
First Applicant

MARY ATTWOOD
Second Applicant

GEORGE DANN
Third Applicant

SHIRLEY LOCKYER
Fourth Applicant

PATRICIA MASON
Fifth Applicant

ROBERT DANN
Sixth Applicant

AND:
MARAPIKURRINYA PTY LTD (ACN 127 500 136)
First Respondent

DIANA ROBINSON
Second Respondent

KERRY ROBINSON
Third Respondent

JUDGE:

GILMOUR J

DATE:

28 JUNE 2011

PLACE:

PERTH

REASONS FOR JUDGMENT

The parties have asked the Court to make a declaration that the first respondent and the second and third respondents, in their capacity as directors of the first respondent, do not have and have not previously had authority to act for or on behalf of the applicants in relation to any…

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.

Keep reading for free

Create a free CaseChat account to read Smith v Marapikurrinya Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FCA 733
Decision Date: 28 June 2011

CaseChat Overview and Summary

The case of Smith v Marapikurrinya Pty Ltd (No 2) involved the applicants, who are the children of Molly Dann, seeking to challenge agreements entered into by the first respondent, Marapikurrinya Pty Ltd, with BHP Billiton Iron Ore and Fortescue Metals Group Ltd for heritage surveys in the area covered by the Kariyarra People’s native title claim. The dispute centred around whether Marapikurrinya Pty Ltd had the authority to act on behalf of the applicants in entering into these agreements and whether these agreements were binding on the applicants. The matter was heard in the Federal Court of Australia.

The primary legal issues the court needed to address were whether Marapikurrinya Pty Ltd had the actual or apparent authority to enter into the agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd on behalf of the applicants, and whether these agreements were binding on the applicants. The applicants argued that the agreements were based on false or misleading representations regarding the authority of Marapikurrinya Pty Ltd. The respondents contended that the agreements were expressly authorised by the legal representative of the Kariyarra Native Title Claim Group and that they had no agreement with Fortescue Metals Group Ltd, only conducting heritage surveys under a land access agreement between the Kariyarra Native Title Group and Fortescue Metals Group Ltd.

The court found that the agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd were not entered into by Marapikurrinya Pty Ltd as an agent for or on behalf of the applicants, and these agreements were not contractually binding on the applicants. The court also determined that the applicants had not given Marapikurrinya Pty Ltd any authority to act on their behalf in any matters. Given these findings, the court concluded that the applicants’ claims were without merit and dismissed the application. The court made no order as to costs.

In summary, the Federal Court ruled that Marapikurrinya Pty Ltd did not have the authority to bind the applicants to the heritage survey agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd, and therefore, the applicants’ claims were dismissed.

Orders

Orders of the court

1. The application be dismissed.

2. There be no order as to costs.

Note:

Background

Background to the litigation

The only evidence tendered by the parties is the content of the Statement of Agreed Facts dated 13 July 2010. I set this out in my earlier reasons at [12] but repeat it below for ease of reading: Statement of Agreed Facts 1.The Applicants and the Second and Third Respondents are Aboriginal people that live in Port Hedland and South Hedland, Western Australia. 2.The Applicants are the children of Molly Dann. 3.The First to Third Applicants and Second and Third Respondent are claimants listed at Attachment A to the Native Title Determination Claim of the Kariyarra People, being Federal Court Action WAG 6169 of 1998 (the Native Title Claim). 4.The Native Title Claim covers the area of Port Hedland and surrounding land and waters. 5.The third Respondent is a named applicant in the Native Title Claim. 6.The Second and Third Respondents are the sole directors and shareholders of the First Respondent. 7.The Applicants have no legal or beneficial interest in the First Respondent. 8.The First Respondent by its officers the Second and Third Respondent has negotiated agreements in relation to heritage surveys and has engaged heritage consultants and Aboriginal people to conduct heritage surveys, in the area of the Native Title Claim. 9.On 3 December 2007 the First Respondent entered into an agreement with BHP Billiton Iron Ore for the conduct of heritage surveys. This agreement was not entered into by the First Respondent as agent for or otherwise for and on behalf of, the Applicants and was not contractually binding on them. 10.In or about 2008 the First Respondent arranged heritage surveys for Fortescue Metal Group Ltd in and around Port Hedland. 11.The activities of the First Respondent referred to in paragraphs 8 to 10 were not conducted by it as agent for the Applicants and the First Respondent did not otherwise have authority to contractually bind the Applicants in respect of any agreements it may have entered into. 12.The Applicants have not given the First Respondent authority to act for or on behalf of the Applicants in relation to any matters, whether by its directors, the Second or Third Respondent, or otherwise. It may be seen that it is agreed that each of the agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd were not entered into by the first respondent as agent for or otherwise for and on behalf of the applicants and was not contractually binding on them. It is then agreed, but without any attempt at specificity at para 12 of the Agreed Facts that the applicants have not given the first respondent authority to act for or on behalf of the applicants in relation to any matters, whether by its directors, the second or third respondent, or otherwise. The amended statement of claim throws no light on what these “matters” might be. So far as concerns the agreements with BHP Billiton Iron Ore and Fortescue Metals Group Ltd are concerned, Lucev FM in Smith v Marapikurrinya recounted at [6], as the present respondents contended: 6.(a) the applicants allege that in general terms, Fortescue Minerals Group and BHP Billiton Iron Ore have entered into agreements with the first respondent on the basis of false or misleading representations as to the authority of the first respondent, which agreements were not authorised by “Kariyarra People”;(b)the uncontradicted evidence is that the only agreement between the first respondent and BHPBIO (and similarly in respect of FMG) was a heritage survey agreement, which agreement according to its terms was expressly authorised by the legal representative of the Kariyarra Native Title Claim Group;(c)the uncontradicted evidence of the respondents is and will be that they have no agreement with FMG, rather they have simply carried out some heritage surveys pursuant to authorisation from the Kariyarra Heritage sub-committee under the terms of a land access agreement between the KNTG and FMG.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Smith v Marapikurrinya (No 2) [2011] FCA 733
Parties:		GENE SMITH, MARY ATTWOOD, GEORGE DANN, SHIRLEY LOCKYER, PATRICIA MASON and ROBERT DANN v MARAPIKURRINYA PTY LTD (ACN 127 500 136), DIANA ROBINSON and KERRY ROBINSON
File number:		WAD 31 of 2010
Judge:		GILMOUR J
Date of judgment:		28 June 2011
Legislation:		Federal Court of Australia Act 1976 (Cth) s 21 Trade Practices Act 1974 (Cth) ss 52, 82 and 87
Cases cited:		Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Competition & Consumer Commission v Dataline.Net.Au Pty Ltd [2006] 236 ALR 665 Australian Competition & Consumer Commission v Grove & Edgar Pty Ltd [2008] FCA 1956 Australian Competition & Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 Bank of Kuwait and the Middle East v Ship MV “Mawashi Al Gasseem” (No 2) (2007) 240 ALR 120 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 Smith v Marapikurrinya Pty Ltd [2010] FMCA 5 Smith v Marapikurrinya Pty Ltd [2011] FCA 330 Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Date of hearing:	16 June 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	26
Solicitor for the Applicants:	Mr A Rumsley
Solicitor for the Respondents:	Mr Lee Christensen of Christensen Vaughan

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 31 of 2010

JUDGE:	GILMOUR J
DATE OF ORDER:	28 JUNE 2011
WHERE MADE:	PERTH

JUDGE:	GILMOUR J
DATE:	28 JUNE 2011
PLACE:	PERTH