Thaluntha Pty Ltd v Citic Pacific Mining Management Pty Ltd

[2019] WASC 196

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   THALUNTHA PTY LTD -v- CITIC PACIFIC MINING MANAGEMENT PTY LTD [2019] WASC 196

CORAM:   SMITH J

HEARD:   5-6 FEBRUARY 2019

DELIVERED          :   14 JUNE 2019

FILE NO/S:   CIV 1260 of 2015

BETWEEN:   THALUNTHA PTY LTD

First Plaintiff

WILFRED HICKS

Second Plaintiff

AND

CITIC PACIFIC MINING MANAGEMENT PTY LTD

First Defendant

SINO IRON PTY LTD

Second Defendant

PASTORAL MANAGEMENT PTY LTD

Third Defendant

KOREAN STEEL PTY LTD

Fourth Defendant

CITIC PACIFIC MINING MANAGEMENT PTY LTD

First Plaintiff by counterclaim

SINO IRON PTY LTD

Second Plaintiff by counterclaim

PASTORAL MANAGEMENT PTY LTD

Third Plaintiff by counterclaim

KOREAN STEEL PTY LTD

Fourth Plaintiff by counterclaim

AND

THALUNTHA PTY LTD

First Defendant by counterclaim

WILFRED HICKS

Second Defendant by counterclaim

PETER JEFFRIES

Third Defendant by counterclaim

PETER HICKS

Fourth Defendant by counterclaim

Catchwords:

Claim for breach of contract - Claim in debt - Compensation deed involving party whose application for native title dismissed - Whether the 'Native Title Party' as defined in deed ceases to exist on dismissal of native title claim

Discharge by frustration - Dismissal and deregistration of native title claim the frustrating event - Whether regard can be had to post‑contractual conduct after the dismissal and deregistration of native title claim - Whether contractual clause sufficiently deals with the frustrating event to exclude the doctrine of frustration

Void for uncertainty - Dismissal and deregistration of native title claim - Whether contractual terms are incapable of enforcement due to uncertainty - Whether compensation deed fails for uncertainty where 'Native Title Party' ceases to exist

Legislation:

Aboriginal Heritage Act 1978 (WA), s 18
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Evidence Act 1906 (WA), s 76(2)(c)
Frustrated Contracts Act 1978 (NSW)
Native Title Act 1993 (Cth), s 29(2), s 30, s 30A, s 31, s 41, s 55, s 61, s 87A, s94A, s 185, s 223(1), s 225, s 253
Supreme Court of Western Australia Act 1937 (WA), s 32

Result:

Compensation deed frustrated by dismissal and deregistration of native title claim
Compensation deed void for uncertainty
Plaintiffs' claim in debt dismissed
Declaration made that deed frustrated and unenforceable on and from 27 October 2007

Category:    B

Representation:

Original Action

Counsel:

First Plaintiff	:	Mr R I Viner QC & Mr T Di Francesco
Second Plaintiff	:	Mr R I Viner QC & Mr T Di Francesco
First Defendant	:	Mr S K Dharmananda SC & Mr S C M Wong
Second Defendant	:	Mr S K Dharmananda SC & Mr S C M Wong
Third Defendant	:	Mr S K Dharmananda SC & Mr S C M Wong
Fourth Defendant	:	Mr S K Dharmananda SC & Mr S C M Wong

Solicitors:

First Plaintiff	:	Gramercy Legal
Second Plaintiff	:	Gramercy Legal
First Defendant	:	Gilbert + Tobin
Second Defendant	:	Gilbert + Tobin
Third Defendant	:	Gilbert + Tobin
Fourth Defendant	:	Gilbert + Tobin

Counterclaim

Counsel:

First Plaintiff by counterclaim	:	Mr S K Dharmananda SC & Mr S C M Wong
Second Plaintiff by counterclaim	:	Mr S K Dharmananda SC & Mr S C M Wong
Third Plaintiff by counterclaim	:	Mr S K Dharmananda SC & Mr S C M Wong
Fourth Plaintiff by counterclaim	:	Mr S K Dharmananda SC & Mr S C M Wong
First Defendant by counterclaim	:	Mr R I Viner QC & Mr T Di Francesco
Second Defendant by counterclaim	:	Mr R I Viner QC & Mr T Di Francesco
Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance

Solicitors:

First Plaintiff by counterclaim	:	Gilbert + Tobin
Second Plaintiff by counterclaim	:	Gilbert + Tobin
Third Plaintiff by counterclaim	:	Gilbert + Tobin
Fourth Plaintiff by counterclaim	:	Gilbert + Tobin
First Defendant by counterclaim	:	Gramercy Legal
Second Defendant by counterclaim	:	Gramercy Legal
Third Defendant by counterclaim	:	No appearance
Fourth Defendant by counterclaim	:	No appearance

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

Ange v First East Auction Holdings Pty Ltd [2011] VSCA 335

Ardee Pty Ltd v Collex Pty Ltd [2001] NSWSC 836

Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Bank Line Ltd v Arthur Capel & Co [1919] AC 435

Beaton v McDivitt (1987) 13 NSWLR 162

Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219

Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143

Cancer Council of Western Australia v Attorney General (WA) [2016] WASC 297

Claude Neon Ltd v Hardie [1970] Qd R 93

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Dale v Moses [2007] FCAFC 82

Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521

Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21

Daniel v State of Western Australia [2003] FCA 666

Daniel v State of Western Australia [2005] FCA 536

Daniels v Daniels (by his Guardian Ad Litem The Public Trustee) [2008] WASCA 230

Jabiru Metals Ltd v Lynch [2009] WASC 238

Macdonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152

Maio v City of Stirling [No 2] [2015] WASC 189

Mentink v Registrar of Australian Register of Ships [2014] FCA 1138; (2014) 320 ALR 137

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340

Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104

Nelson v Moorcraft [2014] WASCA 212

Re The Continental C & G Rubber Co Pty Ltd [1919] HCA 62; (1919) 27 CLR 194

Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17; (2006) 149 FCR 227

Thors v Weekes (1989) 92 ALR 131

Table of Contents

Contents

1.    Introduction

1.1      Overview of findings

1.2      The cause of action, the parties and the relevant agreements

2.    Federal Court proceedings - the WGTO Native Title Application

2.1      Daniel v State of Western Australia

2.2     Dale v Western Australia - the Cape Preston claim

3.    The issues raised in this action

4.    The named parties to the WGTO Compensation Deed

5.    Did the 'Native Title Party' to the WGTO Compensation Deed cease to exist on deregistration of the WGTO Native Title Application?

6.    Discharge by frustration

6.1      Legal principles

6.2      Can regard be had to post‑contractual conduct, post‑dismissal of the Native Title Application and deregistration of the WGTO Native Title Party as a claimant group in determining whether the WGTO Compensation Deed has been frustrated?

6.3      Interpretation of cl 16.3 of the WGTO Compensation Deed - does cl 16.3 expressly deal with the outcome of the dismissal of the WGTO Native Title Application?

7.    Uncertainty principles

7.1      Legal principles

7.2      Does the WGTO Compensation Deed fail for lack of certainty?

8.    Conclusion

9.    Counterclaim:  declaratory relief

Annexure A: Notice of Action - Cape Preston Project Deed (WGTO Compensation)

SMITH J:

1. Introduction

1.1     Overview of findings

1. In these reasons I have found that the plaintiffs' claim for breach of contract against the first, second, third and fourth defendants[1] should be dismissed on grounds that:

   (a)the terms of the 'Cape Preston Project Deed (WGTO Compensation)' (WGTO Compensation Deed), relied upon by the plaintiffs, were discharged by a frustrating event, namely, the dismissal of the native title application made on behalf of the people said to be 'Wong‑Goo‑Tt‑Oo People', and subsequent deregistration of the native title claimant group; and

   (b)the WGTO Compensation Deed was rendered void for uncertainty, as the Native Title Party (as that term is defined in the WGTO Compensation Deed) did not, since at least 27 October 2009, exist.

   [1] Collectively referred to as the defendants in these reasons.

2. The plaintiffs' claim should be dismissed, and a declaration made that the WGTO Compensation Deed since 27 October 2009 has been terminated for frustration and is unenforceable.

1.2           The cause of action, the parties and the relevant agreements

1. The plaintiffs' cause of action is a claim in the law of contract for breach of an agreement entered into between each of the defendants and the first plaintiff, titled the WGTO Compensation Deed.

2. The plaintiffs' claim against each of the first, second, third and fourth defendants is that they are jointly and severally liable for:[2]

   (a)payment to the first plaintiff of a Milestone Payment (as defined in the WGTO Compensation Deed) for the sum of $1,250,000;[3] and

   (b)interest on the sum, pursuant to cl 14.4 of the WGTO Compensation Deed, until payment; and

   (c)such interest or other interest as the court may direct pursuant to s 32 of the Supreme Court of Western Australia Act 1937 (WA).

   [2] Plaintiffs' statement of claim, filed 24 February 2015 [27].

   [3] The claim is a claim in debt which the plaintiffs claim is due and owing as described in the WGTO Compensation Deed as a Milestone Payment, due on the occurrence of the first shipment of ore in December 2013.  Whilst the plaintiffs do not claim the following amounts in this action, the plaintiffs claim that an annual payment of $750,000 was due in 2014, 2015 and 2016, followed by annual payments of $1,400,000 for the duration of the project.

3. The defendants do not dispute that no payment of the sum of $1,250,000 has been made to the first plaintiff. 

4. The defendants claim that the WGTO Compensation Deed is incapable of enforcement on the grounds of frustration or, alternatively, uncertainty. 

5. The defendants claim that, since 27 October 2009, the WGTO Compensation Deed has been frustrated, by the dismissal of a native title application by the Federal Court, made by a group of persons said to be the Wong‑Goo‑Tt‑Oo People, which had the effect that on and from the dismissal there is no 'Native Title Party' or 'WGTO People' in existence (within the meaning of those defined terms in the WGTO Compensation Deed). 

6. Alternatively, the defendants claim that the WGTO Compensation Deed is void for uncertainty as it is centred around a workable and sufficiently certain definition of a 'Native Title Party', as that term is defined in the WGTO Compensation Deed, and no such party exists.

7. The first plaintiff, Thaluntha Pty Ltd, is the trustee of The Wong‑Goo‑Tt‑Oo Group Charitable Trust.

8. The second plaintiff, Mr Wilfred Hicks and others, were appointed trustees of the Wong‑Goo‑Tt‑Oo Group Charitable Trust by a deed of settlement made on 18 January 1999.

9. Mr Wilfred Hicks was, among others, an applicant in National Native Title Tribunal Claim No WC98/40 and Federal Court Claim No WAD 6256/98 as a member of a native title group named Wong‑Goo‑Tt‑Oo.[4] Claimants said to be Wong‑Goo‑Tt‑Oo People sought a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (NT Act) over an area of land including an area known as Cape Preston (WGTO Native Title Application). The area of land known as Cape Preston also includes an area known as Mardie Station.[5] The WGTO Native Title Application was registered on the Register of Native Title Claims pursuant to s 185 of the NT Act on 10 July 1998.[6]

   [4] Plaintiffs' statement of claim, filed 24 February 2015 [4].

   [5] Exhibit A, TB tab 2, pages 20 ‑ 24, Form 1 Native Title Determination Application.

   [6] Further amended statement of agreed facts, filed 15 January 2019 [4].

10. By operation of s 29(2), s 30, and s 253 of the NT Act, Mr Hicks and the other claimants were registered, at least, during the time that the WGTO Native Title Application was registered, collectively, if not each individually, as a Native Title Party (as defined in the WGTO Compensation Deed).

11. In these reasons, Mr Hicks and the other claimants forming the list of persons who made the WGTO Native Title Application in a Form 1 application will be described as the 'WGTO Native Title Party'.[7]

    [7] Further amended statement of agreed facts, filed 15 January 2019 [3] ‑ [4]; the names of the claimants that appeared on the register were subsequently amended on 6 August 1998.

12. Mr Peter Jeffries, the first third defendant by counterclaim, and Mr Peter Hicks, the first fourth defendant by counterclaim, were joined as parties on 7 December 2016 in their own capacity and as representatives for any persons claiming to fall within the definition of 'Native Title Party' as that term is defined in the WGTO Compensation Deed.[8]

    [8] Order, 7 December 2016.

13. Both Mr Jeffries and Mr Peter Hicks were the subject of an order for substituted service of the defendants' defence and counterclaim on behalf of the Native Title Party, by order of Registrar C Boyle on 7 December 2016.[9]  Notice of the proceedings was also required to be published in the Koori Mail and Pilbara Echo newspapers to provide persons who claim to fall within the definition of 'Native Title Party' as that term is defined in the WGTO Compensation Deed with notice to enable interested parties to participate in these proceedings.[10]  A copy of the notice that was required to be published is annexed to these reasons as Annexure A.  The notices were published on 14 December 2016 pursuant to the orders.[11]

    [9] Order, 7 December 2016.

    [10] Order, 7 December 2016.

    [11] Affidavit of Marshall Timothy McKenna, filed 22 December 2017, pages 6 - 7, annexure MTM1. 

14. Mr Peter Hicks filed an appearance in this matter on 27 July 2017, but did not appear at the hearing of the plaintiffs' claim.  Mr Jeffries did not file an appearance.

15. The first defendant, Citic Pacific Mining Management Pty Ltd (Citic); the second defendant, Sino Iron Pty Ltd (Sino); and the third defendant, Pastoral Management Pty Ltd (Pastoral Management) (collectively, Project Participants) entered into an agreement with Mineralogy Pty Ltd (Mineralogy) (the registered holder of granted titles to mining leases and pending general purpose leases over land known as Cape Preston) to establish a magnetic iron ore processing plant to process iron ore concentrate. 

16. To undertake the Cape Preston project, the Project Participants needed to obtain environmental, aboriginal heritage, and other governmental approvals.

17. The Project Participants' project was to construct, and to subsequently operate and maintain an iron ore mine, with the right to produce and export at least 27.6 million tonnes per annum of concentrate, and 6 million tonnes per annum of pellets, and associated infrastructure facilities.[12]

    [12] Exhibit A, TB tab 7, page 107 (definition 'Project').

18. Recently, Kenneth Martin J described the extent of the Cape Preston ore processing plant as the largest of its kind in the southern hemisphere.  His Honour observed that by June 2017, the Project Participants had invested over $US12 billion to establish the plant, and by the end of the 2017 March quarter the plant had produced a market value of $US1.3 billion in iron ore concentrate.[13]

    [13] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 [222].

19. From 10 July 1998, and until 27 October 2009, the WGTO Native Title Party was registered as native title claimants and, as such, were entitled to the rights provided for in the NT Act.[14]

    [14] Further amended statement of agreed facts, filed 15 January 2019 [4].

20. The WGTO Native Title Party made a claim of native title in a determination area that covered not only the Cape Preston area but covered other areas outside of and land surrounding, but not part of, Cape Preston. 

21. Part of the WGTO Native Title Application that overlapped with claims made by other native title claimants (over areas of land that did not include the Cape Preston area) was consolidated, in or about 1999, with proceedings in the Federal Court before Nicholson J.[15]

    [15] Daniel v State of Western Australia [2003] FCA 666 [28].

22. On 2 May 2005, following reasons for judgment being delivered in Daniel v State of Western Australia,[16] Nicholson J dismissed the WGTO Native Title Application insofar as it fell within the determination area considered by his Honour, that is, in respect of the areas of land not part of the Cape Preston area.[17]

    [16] Daniel v State of Western Australia [2003] FCA 666.

    [17] Daniel v State of Western Australia [2005] FCA 536, O 24.

23. In 2007, Citic undertook negotiations with Mr Hicks and others, said to represent themselves and the Wong‑Goo‑Tt-Oo People as claimants in the WGTO Native Title Application.  As a result of the negotiations, Citic, and Mr Hicks and others entered into a Negotiation Framework Agreement in October 2007.[18]

    [18] Statement of claim, filed 24 February 2015 [9(a)]; defence and counterclaim, filed 22 January 2016 [9(b)(i)]; Exhibit A, TB tab 3, pages 25 ‑ 51.

24. The Negotiation Framework Agreement expressly recognised that the defendants were negotiating with other claimants who were affected by the project.[19] 

    [19] Exhibit A, TB tab 3, cl 3.2, page 33.

25. There were three registered native title groups, the WGTO Native Title Party; the Kuruma Marthudunera People (referred to as the KM People in the WGTO Compensation Deed); and the Yaburara and Mardudhunera People (referred to as the YM People in the WGTO Compensation Deed).

26. Pursuant to cl 3.2 of the Negotiation Framework Agreement, the Project Participants sought, to the extent possible, to negotiate 'one deal' between the Project Participants and each of the registered native title groups, by negotiating the same core components of the agreements, on the same terms, with each group.[20]

    [20] Exhibit A, TB tab 3, cl 3.2, page 33.

27. Citic subsequently entered into an In Principle Agreement with the WGTO Native Title Party, by letter dated 2 May 2008.  Clause 1 of the In Principle Agreement proposed the following three agreements:[21]

    (a)a registered Indigenous Land Use Agreement between Sino Iron Pty Ltd, CPMM, Mineralogy, the Native Title Party and the 2 Other Registered Claim Groups (ILUA1);

    (b)a registered Indigenous Land Use Agreement between Sino Iron Pty Ltd, CPMM, Pastoral Management Pty Ltd, the Native Title Party and the 2 Other Registered Claim Groups (ILUA2); and

    (c)a Benefits Agreement between Sino Iron Pty Ltd, CPMM, Pastoral Management Pty Ltd, and the Native Title Party, with separate Benefits Agreements to be entered into between Sino Iron Pty Ltd, CPMM and Pastoral Management Pty Ltd with each Other Registered Claim Group (Benefits Agreement).

    It will be a condition precedent to each of ILUA1, ILUA2 and each Benefit Agreement, that none of the agreements will commence or come into force or effect until all of the agreements have been signed by the last of all named parties to each of ILUA1, ILUA2, and the Benefit Agreement to which they are a party.  The Annual Payments and all other Benefits in the ILUA1, ILUA2 and Benefits Agreement are further conditional upon satisfaction of each of the milestone events set out at heading 2 below.

    [21] Exhibit A, TB tab 5, page 77.

28. By a deed of variation made to the Wong‑Goo‑Tt‑Oo Trust on 28 June 2008, Thaluntha was appointed trustee of the Wong‑Goo‑Tt‑Oo Group Charitable Trust.[22]

    [22] Statement of claim, filed 24 February 2015 [2(b)].

29. On 25 September 2008, (as contemplated by the In Principle Agreement) the defendants, Mr Hicks and the other claimants who formed part of the WGTO Native Title Party, entered into the following suite of agreements:[23]

    (a)ILUA1 made with Citic, Sino, Mineralogy, and other native title claimants, namely, the Yaburara and Mardudhunera People, the Kuruma Marthudunera People and the Yaburara and Coastal Mardudhunera Aboriginal Corporation;[24]

    (b)ILUA2 made with Citic, Sino, Pastoral Management, and other native title claimants, namely, the Kuruma Marthudunera People, Yaburara and Mardudhunera People and the Yarburara and Coastal Mardudhunera Aboriginal Corporation;[25]

    (c)WGTO Compensation Deed (referred to as a Benefits Agreement in the In Principle Agreement).  The parties to this agreement are the WGTO Native Title Party, Thaluntha (as WGTO Trustee), Citic, Sino and Pastoral Management; and

    (d)the Direct Agreement between Citic, Sino and Pastoral Management, and the WGTO Native Title Party and China Development Bank (as agent) and Bank of China Ltd, Sydney Branch (as security trustee) (also entered into by the other native title claimants).[26]

    [23] Statement of claim, filed 24 February 2015 [9(d)]; defence and counterclaim, filed 22 January 2016 [9].

    [24] ILUA1 was not registered; ILUA1 is only different to ILUA2 in that Mineralogy, as the lessee of the iron ore mining tenements to be used for the extraction of iron ore, is a party to ILUA1 but not ILUA2.

    [25] ILUA2 was not registered; ILUA2 is only different to ILUA1 in that Pastoral Management as the lessee of Mardie Pastoral Station, in which project infrastructure is installed, is a party to ILUA2 but not ILUA1.

    [26] Exhibit A, TB tab 10, pages 503 ‑ 522.

1. The WGTO Compensation Deed is a comprehensive commercial native title agreement by which mutual promises and covenants were exchanged to secure the validity of agreements between the defendants and Mineralogy, including all future approvals for the undertaking and carrying out of the Project (as defined in cl 1.1 of the WGTO Compensation Deed).  The mutual promises and covenants also provided for the provision of financial and non‑financial benefits for the consents by the WGTO Native Title Party in relation to native title rights and interests claimed in the Native Title Application.

2. On 31 March 2009, a letter was sent from Citic and Sino to the solicitors acting for each of the native title claimants, including solicitors acting for the WGTO Native Title Party, providing notification, among other things, that all relevant documents had been signed and all relevant approvals had been obtained and that the date of commencement of the WGTO Compensation Deed (and the other compensation deeds entered into with the other registered native title claimants) was 31 March 2009.[27] 

   [27] Exhibit A, TB tab 21, pages 951 ‑ 952.

3. A payment of $500,000 was made to the WGTO Native Title Party on signing the In Principle Agreement.[28]  A second payment of $750,000 was made to the WGTO Native Title Party after each native title claimant had signed each of ILUA1, ILUA2 and their respective compensation deeds, on 19 May 2009, as contemplated by cl 5.1(c) of the WGTO Compensation Deed.[29]

   [28] Plaintiffs' outline of opening submissions, filed 31 January 2018 [67.1].

   [29] Plaintiffs' outline of opening submissions, filed 31 January 2018 [67.2]; further amended statement of agreed facts, filed 15 January 2019 [10(c)]. 

4. On 15 July 2009, Mr Hicks and the other claimants (on behalf of the WGTO Native Title Party), Pastoral Management, and the Minister for Mines and Petroleum entered into a deed for a grant of a mining tenement.[30]

   [30] Exhibit A, TB tab 12, pages 549 ‑ 564.

5. On 23 October 2009, the WGTO Native Title Application was dismissed by McKerracher J in Dale v Western Australia.[31]  On 27 October 2009, the WGTO Native Title Party was deregistered as a registered native title claimant group.[32] 

   [31] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21.

   [32] Further amended statement of agreed facts, filed 15 January 2019 [4].

6. On 24 November 2009, the WGTO Native Title Party and the defendants entered into a Deed of Accession, whereby the fourth defendant, Korean Steel Pty Ltd, acceded to ILUA1 and ILUA2.  Korean Steel became, by the signing of this agreement and other agreements, a new Project Participant.[33]

   [33] Plaintiffs' outline of opening submissions, filed 31 January 2018 [17.7] ‑ [17.10]; Exhibit A, TB tab 22, pages 953 ‑ 961; the deeds of accession were entered into pursuant to cl 20.4 of the WGTO Compensation Deed.

7. On 31 March 2011, the Full Court of the Federal Court dismissed an appeal against the decision of McKerracher J.[34] 

   [34] Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521.

8. On 2 December 2013, the first shipment of processed iron ore left Cape Preston.[35]

   [35] Defendant's amended chronology, filed 5 February 2019.

9. On 3 December 2013, invoice no 2366 was issued to Citic for payment of the $1,250,000.[36]  Following correspondence on 13 December 2013 from Citic indicating that invoice no 2366 was not payable until the receipt of all project approvals and first shipment, and that that date was 28 January 2014 and that payment was due within 60 days of that date.[37]  Following subsequent correspondence raising an issue about the bank account details provided for the payment of invoice no 2366,[38] the defendants refused to pay the amount of $1,250,000 claimed in invoice no 2366.[39]

   [36] Statement of claim, filed 24 February 2015 [23].

   [37] Exhibit A, TB tab 26, pages 967 ‑ 968.

   [38] Exhibit A, TB tab 28, page 970.

   [39] Statement of claim, filed 24 February 2015 [24] ‑ [25]; defence and counterclaim, filed 22 January 2016 [24] ‑ [25]. 

1. Federal Court proceedings - the WGTO Native Title Application

2.1Daniel v State of Western Australia

1. In Daniel v State of Western Australia,[40] the determination area considered by Nicholson J covered part of the WGTO Native Title Application, being the part of the WGTO claim that overlapped with the claims made by the Yindjibarndi People, Ngarluma People, and Yaburara and Mardudhunera People.[41]

   [40] Daniel v State of Western Australia [2003] FCA 666.

   [41] ts 60, 5 February 2019.

2. The determination claim area considered by Nicholson J was defined by the claim areas claimed on behalf of the Ngarluma People and the Yindjibarndi People.  The determination claim area comprised land and waters of about 25,000 square kilometres, located in the West Pilbara region of Western Australia.[42] 

   [42] Dale vMoses [2007] FCAFC 82 [2] (Moore, North & Mansfield JJ).

3. The Ngarluma claim area and the Yindjibarndi claim area were separate areas, save for an indeterminate zone running along the escarpment of the Chichester Ranges.  The Ngarluma claim area was described as the 'low land' and the Yindjibarndi claim area as the 'table lands'.

4. The overlapping application claim areas were as follows: [43]

   The Ngarluma people and the Yindjibarndi people were ultimately described as the first applicants in the proceeding, WAG 6017/1996.  Overlapping parts of two other native title determination applications were subsequently consolidated with the Ngarluma/Yindjibarndi claim, so that the Yaburara and Mardudhunera people became the second applicants to the proceeding and the Wong-Goo-TT-OO people became the third applicants.  The Yaburara/Mardudhunera claim (WAG 127/1997) covers an area west of the Ngarluma/Yindjibarndi claim area and overlapped the north-western portion of the latter claim area in the designated Ngarluma area, including the Burrup and surrounding islands.  The Wong-Goo-TT-OO claim area in WAG 6256/1998 also lies west of the Ngarluma/Yindjibarndi claim area, overlapping much of the Yaburara/Mardudhunera claim area.  It covers roughly half of the Ngarluma claimed territory (including the Burrup) and extends southwards into a portion of the Yindjibarndi claimed territory.

   [43] Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 [17] (Moore, North & Mansfield JJ).

5. The claims brought by the Yaburara and Mardudhunera People and the WGTO Native Title party were heard together with the Ngarluma and Yindjibarndi Peoples' claims to the extent that their claim areas overlapped with the Ngarluma and Yindjibarndi claim areas.[44]

   [44] Dale v Moses [2007] FCAFC 82 [7] (Moore, North & Mansfield JJ).

6. The WGTO Native Title Party claim area was divided into a 'core area' and 'non‑core area'.  The core area, in which the WGTO Native Title Party claimed native title rights and interests to the exclusion of all others, was a significant portion of the Ngarluma claim area.  It was said to consist of the 'Thaluntha' estate (an area west of the Nickol River which included the Karratha station pastoral lease), the 'Pularra' estate (between the Nickol and George rivers) and the Dampier Archipelago (including the 'Burrup').  The WGTO Native Title Party claimed shared rights with the Yindjibarndi in their non‑core area.[45]

   [45] Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 [30] ‑ [33] (Moore, North & Mansfield JJ); Dale v Moses [2007] FCAFC 82 [7] (Moore, North & Mansfield JJ).

7. The areas claimed by the WGTO Native Title Party in the determination area considered by Nicholson J excluded the claim made over land forming part of the Cape Preston area as the Ngarluma and Yindjibarndi Peoples made no claim over the Cape Preston area.[46]

   [46] ts 60 ‑ 62, 5 February 2019.

8. Nicholson J made the following findings (in dismissing the claim by the WGTO Native Title Party) that are relevant to the disposition of this action:

   (a)s 223(1) of the NT Act provides that the expression 'native title' or 'native title rights and interests' means 'the communal, group or individual rights and interests' in relation to land and waters. Section 225 of the NT Act requires that a determination of native title be a determination whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of 'who the persons, or each group of persons, holding the common or group rights comprising the native title are';[47]

   [47] Daniel v State of Western Australia [2003] FCA 666 [332].

   (b)it is common ground that the name Wong‑Goo‑Tt‑Oo is a name adopted for the purpose of the proceedings and there is no suggestion of a tribe or other traditional land owning group ever having existed under that name;[48]

   [48] Daniel v State of Western Australia [2003] FCA 666 [354].

   (c)the Ngarluma claimants say that the position is clear that most members of the WGTO Native Title Party who have proper connections with a claim area that overlaps the Ngarluma territory identified by the Ngarluma claimants in their evidence are descended from, or identify as, or are identified by others as, Ngarluma People.  Additionally, it is said that some few members of the WGTO Native Title claimants either identify as, or have been identified clearly in the evidence, as Yindjibarndi People;[49]

   (d)the submission for the WGTO Native Title Party that responses by individual members of the WGTO Native Title Party to questions '[a]re you a Ngarluma person' are not to be understood as addressing membership of the Ngarluma claimants' claim group but rather a subjective aspect of personal identity distinct from their claim to native title by membership of a cognatic descent group traditionally connected to a particular territory;[50]

   (e)this self‑identification does not inhibit the WGTO Native Title Party qualifying as a group.  Nevertheless, the fact of self‑identification with a group other than the WGTO Native Title Party is relevant evidence to whether what is claimed by the WGTO Native Title Party is anything more than their rights as Ngarluma and Yindjibarndi Peoples or as a sub‑group thereof;[51]

   (f)the definition of 'group' requires a number of people, regarded as forming a unity or whole on the grounds of some mutual or common relation or purpose.  The common relation or purpose relied upon is that of the familial relationship between the members of the WGTO Native Title Party;[52]

   (g)it is sufficient that the WGTO Native Title Party claim such a common relation for them to qualify as a group.  Whether or not such a relationship can be made out is a matter to be determined on examination of connection evidence;[53]

   (h)the case for the WGTO Native Title Party is that the group has had continuity back to sovereignty in one or all of four ways (in respect of three families).  The first claim is that the Douglas family, which is related to the Hicks family, can trace its ancestry to sovereignty.  The second claim is that the Hicks family can trace its ancestry back to sovereignty through the Douglas link or as part of the Ngarluma and Yindjibarndi groups.  The third strand of the case is through the Ramirez family which in their own right, but not linked to the remainder of the members of the WGTO Native Title Party, is made out back to sovereignty.  The fourth strand is that expressed by Mr Dallas Hicks who claimed his father told him Maitland and Island, whom he accepted were the last two members of whatever tribe lived on the Burrup, had transferred their right to the Burrup to Mr Fred Hicks' father, Mr Jack Hicks;[54]

   (i)the Douglas and Hicks families had a common ancestor and they could trace their ancestry back to sovereignty in the Pularra area.  The Ramirez family could also trace its history back to sovereignty in the Pularra area.  However, the Ramirez family was not genealogically connected to the Douglas or Hicks families;[55]

   (j)the WGTO Native Title Party are not part of a traditional group.  Although the history of the families in the WGTO Native Title Party can be traced back to sovereignty, there is no evidence that before the constitution of the Wong‑Goo‑Tt‑Oo group, they had any common relation or purpose other than their familial commonality if that can be made out.  In the absence of appropriate evidence, it could not be safely inferred that the actions of any one family were taken on behalf of the three families now constituting the group.  Upon the constitution of the group there was a discontinuity from the several existence of the constituting families in the past so that it cannot be concluded the WGTO Native Title Party had established continuity as a group;[56] 

   (k)in relation to the claims in connection to the Thaluntha area they were based on association with the Hicks family.  However, Mr Jack Hicks was Yindjibarndi (the traditional country of which group did not include the Thaluntha area) and that connection to the Thaluntha area from sovereignty to the present had not been maintained.  Further, the evidence of Mr Wilfred Hicks is that he had not asserted his rights to the Thaluntha area 'because he had been over‑run by others';[57] and

   (l)the WGTO Native Title Party are not differentiated from the rest of the Ngarluma People and the Yindjibarndi People.  They are not connected to their claim area by traditional laws and customs specific to them as a group.[58]

   [49] Daniel v State of Western Australia [2003] FCA 666 [355].

   [50] Daniel v State of Western Australia [2003] FCA 666 [356].

   [51] Daniel v State of Western Australia [2003] FCA 666 [357].

   [52] Daniel v State of Western Australia [2003] FCA 666 [358].

   [53] Daniel v State of Western Australia [2003] FCA 666 [358].

   [54] Daniel v State of Western Australia [2003] FCA 666 [376] ‑ [380].

   [55] Daniel v State of Western Australia [2003] FCA 666 [1454] ‑ [1455].

   [56] Daniel v State of Western Australia [2003] FCA 666 [384].

   [57] Daniel v State of Western Australia [2003] FCA 666 [317], [1452], [1453].

   [58] Daniel v State of Western Australia [2003] FCA 666 [387], [389], [390].

9. Nicholson J determined that the Wong‑Goo‑Tt‑Oo claim (and the Yaburara and Mardudhunera claim) that overlapped with the Ngarluma and Yindjibarndi claims should be dismissed, without prejudice to any right the Wong‑Goo‑Tt‑Oo People may have as Ngarluma or Yindjibarndi People (and not as members of Wong‑Goo‑Tt‑Oo People) to hold native title rights and interests.[59]

   [59] Daniel v State of Western Australia [2005] FCA 536, O 24.

10. A consequence of the decision of Nicholson J was that members of the group comprising the WGTO Native Title Party might have native title rights and interests as Ngarluma or Yindjibarndi People.[60]

    [60] Daniel v State of Western Australia [2003] FCA 666 [508] ‑ [509].

11. Two appeals were instituted.  The first was an appeal lodged by the Ngarluma and Yindjibarndi Peoples and the other by persons said to be Wong‑Goo‑Tt‑Oo People.  The appeals were heard together but the Full Court of the Federal Court issued two separate decisions.[61]

    [61] Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148; Dale v Moses [2007] FCAFC 82.

12. The grounds of appeal in the Wong‑Goo‑Tt‑Oo appeal can be summarised as whether:[62]

    (a)Nicholson J erred in not accepting that the WGTO Native Title Party was a cognatic kin group of continuous existence which has maintained connection with their 'core area' since sovereignty;

    (b)Nicholson J erred in failing to find that the Wong‑Goo‑Tt‑Oo People were separate and distinct from the Ngarluma and Yindjibarndi Peoples; and

    (c)the Wong‑Goo‑Tt‑Oo People hold native title rights and interests in the Burrup.

    [62] Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 [95] (Moore, North & Mansfield JJ).

13. The appeal against the decision of Nicholson J on behalf of the Wong‑Goo‑Tt‑Oo People was unsuccessful.[63]  The Full Court of the Federal Court found that:[64]

    (a)Nicholson J accepted that the WGTO Native Title Party were a group for the purposes of the application, and said that that was an observation directed only to their capacity to prosecute the application and said nothing about the claims that they sought to make concerning their alleged native title rights; and

    (b)in accepting that the WGTO Native Title Party qualified as a group, having regard to what they claimed was plainly directed only to their standing to make the application.  Whether the requisite relationship in fact existed was a matter to be determined on the evidence, in relation to which Nicholson J did not accept that the WGTO Native Title Party had discharged the evidentiary onus of establishing the requisite relationship.

    [63] Dale v Moses [2007] FCAFC 82.

    [64] Dale v Moses [2007] FCAFC 82 [116] (Moore, North & Mansfield JJ).

14. The decision of Nicholson J left the balance of the WGTO Native Title Party claim to be determined (being the claim made over the Cape Preston area).  The Cape Preston claim, together with other parts of the claim made by the WGTO Native Title Party, was considered by McKerracher J.[65]

2.2 Dale v Western Australia - the Cape Preston claim

[65] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21.

1. The remaining Wong‑Goo‑Tt‑Oo claim area, except for a relatively small area, overlapped with the Yaburara and Mardudhunera claim and the Kuruma Marthudunera claim.

2. The State of Western Australia, on 11 February 2009, filed an amended motion for summary dismissal of the Wong‑Goo‑Tt‑Oo claim on the basis that no reasonable cause of action was disclosed.

3. On 23 October 2009, McKerracher J gave judgment and ordered that the State of Western Australia's motion for summary dismissal be allowed and that the WGTO Native Title Application be dismissed.[66]

   [66] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [93].

4. His Honour accepted the argument put on behalf of the State that the claim was bound to fail because the Wong‑Goo‑Tt‑Oo People were estopped (by the application of the principles of issue estoppel) from asserting that they formed a society that has existed continuously since sovereignty because of the key findings made by Nicholson J in Daniel.  In particular, his Honour McKerracher J found:[67]

   Importantly the central reasoning behind the decision in Daniel was that Wong-Goo-TT-OO did not hold native title over any part of the Ngarluma/Yindjibarndi claim area because Wong-Goo-TT-OO was not a group capable of holding native title. Far from being peripheral in any sense, this was the first and fundamental issue that his Honour had to decide and it was decided clearly against Wong-Goo-TT-OO.

   This fundamental finding also disposes of the Wong-Goo-TT-OO suggestion that different issues may arise in relation to the townsites compared with the balance of the claim area. There is no geographical element attached to the central determination in Daniel. The same contention was advanced in Quall and, in my respectful view, correctly rejected.

   [67] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [76] ‑ [77].

5. McKerracher J went on to consider whether the fact that the WGTO Native Title Party claim had been registered was relevant to issue estoppel and dismissed a submission that the fact that the claim had been registered gave rise to a presumption that the claimed rights and interests existed.  In rejecting this submission, McKerracher J found that registration is an administrative act and involves no real assessment of the actual merits of the claim.[68]

   [68] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [82] ‑ [83].

6. In support of its claim the WGTO Native Title Party sought to read into evidence additional affidavit material to show that there was a proper foundation, supported by sound genealogical research, to conclude that the requisite element of continuity as a group existed.  The State objected to reliance on the affidavit material on the basis that reliance on additional 'new' evidence which is said might change the position is not the correct approach to the question of whether or not an issue has previously been determined and could not be pursued again against the same party.[69]  McKerracher J accepted the submission and found that to accept the affidavit evidence would defeat the purpose of the doctrine of issue estoppel if on any occasion on which it were raised, it would be open to the party opposing the issue estoppel argument to contend that it would run its case differently, such that the outcome would possibly be different from the earlier decision.[70]

   [69] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [84].

   [70] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [85].

1. As a secondary argument, the State contended that it was implausible that the Wong‑Goo‑Tt‑Oo People could establish native title over the town sites of Karratha, Point Samson and Wickham when Nicholson J found, in Daniel, that the Ngarluma People held native title to the areas surrounding those town sites and the Wong‑Goo‑Tt‑Oo People did not.[71]  McKerracher J did not find it necessary to rule on this argument as he had reached the conclusion that the WGTO Native Title Application should be dismissed on the basis of issue estoppel.[72]  However, his Honour did go on to observe that had the State's secondary contention been the only argument, he would have been substantially less inclined to allow it as a basis for dismissal of the claim, notwithstanding its logical appeal.  McKerracher J concluded that issue estoppel was the only appropriate ground for dismissal, though it was noted by his Honour that there was little doubt that the evidence in Daniel was relevant to the entirety of the area.[73]

   [71] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [86] ‑ [87].

   [72] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [88].

   [73] Dale v Western Australia [2009] FCA 1201; (2009) 261 ALR 21 [88].

2. Mr Dale and other members of the Wong‑Goo‑Tt‑Oo claim group who had formed, as a group of claimants, the WGTO Native Title Party appealed the decision of McKerracher J. 

3. The Kuruma Marthudunera claim group had an interest in the WGTO claim area insofar as it overlapped with their claim (which included the Cape Preston area).  In the proceedings before McKerracher J they supported the State's motion for summary dismissal, and subsequently supported the State in opposing the appeal. 

4. At the end of the hearing of the appeal, orders were made allowing the Kuruma Marthudunera People to apply to file a notice of contention to support the decision at first instance.  The notice of contention asserted that the pursuing of the WGTO claim was an abuse of process because it sought to relitigate issues which had already been determined adversely to the WGTO Native Title Party in Daniel and in the Daniel appeal (Dale v Moses). 

5. The Full Court of the Federal Court allowed the Kuruma Marthudunera claim group to rely upon their notice of contention and upheld their argument.  Their Honours found that the WGTO Native Title Application constituted an abuse of process and McKerracher J was correct in making the order he did dismissing the WGTO application.[74]  Their Honours did, however, observe that there was real doubt that issue estoppel had any field of operation in applications for a native title determination but found it unnecessary to resolve that legal question.[75]

   [74] Dale v Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 [88].

   [75] Dale v Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 [88] ‑ [91].

6. The WGTO Native Title Party submitted in the appeal that McKerracher J did not properly consider new affidavits that fell into two categories.  The first category was material aimed at showing that there is a genealogical link between the Hicks and Ramirez families.  The second category was material aimed at showing that Mr Tim Douglas practiced the traditional law and custom of the area.  Both categories of evidence were directed toward demonstrating that the findings of Nicholson J in Daniel were factually wrong, even if justified on the evidence produced to his Honour. 

7. The Full Court of the Federal Court reviewed the affidavit evidence the WGTO Native Title Party sought to be considered by McKerracher J, together with the evidence before Nicholson J in Daniel.  The Full Court observed that the earlier evidence concerning whether the WGTO Native Title Party was a cognatic kin group was not focused only on the circumstances of the WGTO Native Title Party in the Ngarluma/Yindjibarndi consolidated claim area considered by Nicholson J.  Rather, their Honours found it was evidence that apparently applied to establishing (but unsuccessfully so) the existence of the WGTO Native Title Party as a cognatic kin group who held at settlement, and have continued to hold, native title rights and interests generally in the broader area which was the WGTO claim area, including that part which became part of the Ngarluma/Yindjibarndi consolidated claim area.[76]

   [76] Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 [110] (Moore, North & Mansfield JJ).

8. Their Honours then went on to observe that the evidence (before Nicholson J) was not evidence confined only to that part of the WGTO claim area which had been consolidated into the Ngarluma/Yindjibarndi consolidated claim area.  Their Honours then found that:[77]

   (a)the further affidavits did not seek to demonstrate that a different position obtains because of facts arising outside of the Ngarluma/Yindjibarndi consolidated claim area in the remainder of the WGTO Native Title Party claim area; and

   (b)the additional affidavits, rather than drawing any distinction about the current or historical status of the WGTO claim group between the Ngarluma/Yindjibarndi consolidated claim area and the present WGTO claim area (before McKerracher J) treated the whole of those two areas (previously the wider WGTO claim area) in the same way.

   [77] Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 [110] (Moore, North & Mansfield JJ).

9. The Full Court of the Federal Court in Dale also observed that there was no explanation why the additional affidavit evidence was not adduced before Nicholson J in Daniel and found that to a large extent, the additional affidavits were little more than a repetition of what was said in evidence in Daniel, although perhaps with a little more detail.[78]

   [78] Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 [110] (Moore, North & Mansfield JJ).

10. For these reasons, their Honours determined that, in substance, the WGTO Native Title Party essentially sought to have the same issue as was determined in Daniel determined differently in the WGTO Native Title Party claim before McKerracher J and its attempts to do so constituted an abuse of process.[79]

    [79] Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 [111] (Moore, North & Mansfield JJ).

11. The appeal was dismissed by the Full Court of the Federal Court on 31 March 2011.[80]

    [80] Dale v Western Australia [2011] FCAFC 46; (2011) 191 FCR 521.

1. The issues raised in this action

1. The questions raised in this action go to the issue of whether the WGTO Compensation Deed has been frustrated or is void for uncertainty.  These questions are:

   (a)As a result of the dismissal and the deregistration of the WGTO Native Title Application, is there now no person or group that can be described as being the 'Native Title Party' to the WGTO Compensation Deed?

   (b)If there is no group of persons that constitute a collection of persons capable of holding native title, is there no group capable of being the beneficiary under the WGTO Compensation Deed?

   (c)Is the contractual mechanism to facilitate payments provided for in the WGTO Compensation Deed unenforceable because there is no Native Title Party or WGTO People in existence to discharge the relevant obligation to notify the defendants of where and to whom the payments under the agreement can be directed to?

   (d)Has the dismissal of the WGTO Native Title Application rendered the WGTO Compensation Deed incapable of performance or so fundamentally different from the situation that was contemplated by the parties?

   (e)Does the effect of cl 16.3 of the WGTO Compensation Deed, which provides:

   For the avoidance of doubt, this Deed survives any determination that the WGTO People do not hold native title in the Agreement Area,

   prevent the discharge of the mutual obligations pursuant to the WGTO Compensation Deed, by the supervening event, namely the dismissal by McKerracher J of the WGTO Native Title Application and subsequent deregistration of the WGTO Native Title Party as a registered native title claimant group?

1. The named parties to the WGTO Compensation Deed

1. The parties to the WGTO Compensation Deed are Citic, Sino, Pastoral Management, the Native Title Party and the WGTO Trustee. 

2. The Native Title Party is described in the WGTO Compensation Deed as Mr Ernie Ramirez; Mr Tim Douglas; Mr Wilfred Hicks; and Mrs Betty Dale, for and on behalf of themselves and the Wong‑Goo‑Tt‑Oo People in native title application NNTT No WC 98/40, Federal Court No WAD 6256/98.[81]

   [81] Exhibit A, TB tab 9, page 373.

3. The WGTO Trustee is described as Thaluntha as trustee for the Wong‑Goo‑Tt‑Oo Charitable Trust.[82]

   [82] Exhibit A, TB tab 9, page 373.

4. In the operative part of the WGTO Compensation Deed, Native Title Party is defined in cl 1.1 of the Deed to mean 'the persons whose names appear from time to time on the register of native title claims as the people who are taken to be representative of the claimants in relation to the Native Title Application for and on behalf of themselves and the WGTO People, and includes the WGTO People'.[83]

   [83] Exhibit A, TB tab 9, page 380, cl 1.1 (definition 'Native Title Party').

5. The Native Title Application is defined in cl 1.1 of the agreement to mean 'the registered Native Title Claim made by the Wong‑Goo‑Tt‑Oo People, NNTT No WC 98/40, Federal Court No WAD 6256/98 in its form from time to time, including new claims, consolidations, or replacement claims made by the members of this application in the Agreement Area'.[84]

   [84] Exhibit A, TB tab 9, pages 379 ‑ 380, cl 1.1 (definition 'Native Title Application').

6. The WGTO Trust is defined in cl 1.1 to mean the WGTO Charitable Trust which is established under a trust deed.  The beneficiaries of the WGTO Trust are the WGTO People.[85]

   [85] Exhibit A, TB tab 9, page 385, cl 1.1 (definition 'WGTO Trust').

7. The WGTO Trustee is defined in cl 1.1 of the Deed to mean 'the duly appointed trustee of the WGTO Trust from time to time, and if no person is so appointed, then any reference to the WGTO Trustee will be read as the Native Title Party.  As at the date of the Deed the WGTO Trustee was (and remained at the time of the hearing of the plaintiffs' claim) Thaluntha Pty Ltd as trustee for the Wong‑Goo‑Tt‑Oo Charitable Trust'.[86]

1. Did the 'Native Title Party' to the WGTO Compensation Deed cease to exist on deregistration of the WGTO Native Title Application?

   [86] Exhibit A, TB tab 9, page 385, cl 1.1 (definition 'WGTO Trustee').

1. Importantly, Mr Wilfred Hicks, Mr Douglas, Mr Ramirez and Mrs Dale as parties to the Deed, are defined by the descriptor 'Native Title Party'. As such, the plaintiffs contend they each entered into the WGTO Compensation Deed as a 'native title party' (within the meaning of that term in the NT Act) for the purposes and with the authority of s 29(2)(b)(i), s 30A, s 31 and s 41 of the NT Act.

2. It is also claimed by the plaintiffs that the intention and proper construction of the definition of Native Title Party in the WGTO Compensation Deed is that Mr Wilfred Hicks, Mr Douglas, Mr Ramirez and Mrs Dale and any other persons who may from time to time are or were the registered native title claimants in the Native Title Application will be bound by the WGTO Compensation Deed.

3. It is said to follow that the definition of Native Title Party in the WGTO Compensation Deed does not mean that if the Native Title Application is no longer recorded on the register of claims that an agreement validly entered into by registered native title claimants at the time of entry into a contract ceases to be binding. This is said to arise from the effect and force of s 31 and s 41 of the NT Act.

4. Whilst s 41 of the NT Act contemplates that a registered native title party is able to be a negotiation party to a binding agreement, s 41 does not consider the effect of an agreement once a native title party ceases to be a registered native title claimant.

5. Section 30(2) of the NT Act provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant. Section 31 does not assist the plaintiffs' case as s 31 simply provides for negotiation procedures by negotiation parties and requires negotiation parties to negotiate in good faith.

6. The plaintiffs claim that the persons comprising the Wong‑Goo‑Tt‑Oo or WGTO People can always be identified at a given time, in the past or in the future, by the description of the persons comprising the native title claim group named in the Form 1 application by which the Native Title Application was made.

7. The plaintiffs say the definition of Native Title Party in the WGTO Compensation Deed is a reference to the Native Title Application or one which fixes the definition of Native Title Party in the WGTO Compensation Deed as the persons listed in the document (the Form 1) which existed at the time of registration of the native title claim and at the time of entry into the WGTO Compensation Deed.

8. In particular, they say the WGTO People and the Native Title Party remain defined by, and are always capable of being identified from, the description of the native title claim group in the Form 1.  They also say that at all material times the description and identification of the persons who are the WGTO People and the Native Title Party is to be determined by reference to the Form 1 at the date of the WGTO Compensation Deed (21 September 2008).

9. When the question was asked as to who the Wong‑Goo‑Tt‑Oo People are today, senior counsel on behalf of the plaintiffs said that they are the people described in the Form 1, they remain today as to the Wong‑Goo‑Tt‑Oo People.[87]

   [87] ts 177 ‑ 178, 6 February 2019.

10. In support of this argument, the plaintiffs rely on the finding made by Nicholson J in Daniel that the WGTO Native Title Party claim group described in the Form 1 application was a group of persons on whose behalf a native title application could be made.[88]

    [88] Daniel v State of Western Australia [2003] FCA 666 [358], [359].

11. However, this finding does not assist the plaintiffs' case.  As the Full Court of the Federal Court found, this finding made by Nicholson J was simply an observation directed toward the capacity of the Native Title Party to prosecute the application, that is, their standing to make a claim for native title.

12. It is also argued that although the names of the persons described in the Form 1 do not appear on the Register of Native Title Claims, that does not mean they have ceased to exist as the Native Title Party.  All that is required is that the WGTO Compensation Deed identified the persons who had the legal capacity to enter into the agreement for the benefit of the persons who are identified by the Form 1 for the purposes of the WGTO Native Title Application.

13. Although I agree that the Native Title Party in the WGTO Compensation Deed is to be interpreted as the WGTO Native Title Party who formed the group of claimants described in the Form 1 to make the Native Title Application, I do not agree that it follows that this group is an 'entity' that continues to exist for the purposes of determining rights and obligations in the WGTO Compensation Deed that came into existence post‑dismissal of, and post‑deregistration of, the Native Title Application.

14. As the defendants point out, the parties to the WGTO Compensation Deed include a description of the Native Title Party as Mr Ramirez, Mr Douglas, Mr Wilfred Hicks and Mrs Dale for and on behalf of themselves and the WGTO People who made the Native Title Application.  This description contemplates the current existence of a native title application.

15. As the defendants also point out, the dismissal and deregistration of the Native Title Application rendered the definitions of 'Native Title Party' and the 'WGTO People' as references to an entity that no longer exists and is not current.  The grounds upon which the dismissal of the application and consequent deregistration of the Native Title Application were made are that the Wong‑Goo‑Tt‑Oo People do not exist as a group united by traditional law and custom.[89]

    [89] Dale v Moses [2007] FCAFC 82 [15] ‑ [19] (Moore, North & Mansfield JJ); Daniel v State of Western Australia [2003] FCA 666 [387], [389], [390] (Nicholson J).

1. Discharge by frustration

6.1     Legal principles

1. A contract may be discharged for frustration when something occurs after the formation of the contract, which is not the fault of either party, rendering it physically or commercially impossible to fulfil the contract or transforms the obligation to perform into a radically different obligation from that which was undertaken by the contract.[90]

   [90] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 357 (Mason J), 377 (Aickin J).

2. In Nelson v Moorcraft Buss JA observed:[91]

   [91] Nelson v Moorcraft [2014] WASCA 212 [123] ‑ [129] (Newnes JA agreeing).

   In Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143, Stephen J (Murphy J agreeing) examined the doctrine of frustration of contract. His Honour referred with approval to the approach of Lord Reid and Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696.

   As to Lord Reid's speech, Stephen J said (160):

   'Lord Reid rejected the notion of the implied term as the basis of the doctrine. He says ([1956] AC, at pp at 720 - 721) that the task for a court, confronted with the parties' contract, is to determine, on the true construction of the terms of the contract, read in the light of the nature of the contract and of the relevant surrounding circumstances when the parties made it, "whether the contract which they did make is, on its true construction, wide enough to apply to the new situation: if it is not, then it is at an end". Frustration he describes as "the termination of the contract by operation of law on the emergence of a fundamentally different situation" ([1956] AC, at p 723).'

   His Honour understood Lord Reid's approach to involve 'a comparison between the contemplated situation, as revealed by the terms of the contract on its true construction, and the situation in fact resulting from the frustrating event' (160).  His Honour added that if they be 'fundamentally different' the contract is frustrated, 'subject, of course, to the frustrating event not being the fault of the party seeking to rely upon the doctrine' (160).

   As to Lord Radcliffe's speech, Stephen J said (160 - 161):

   'Lord Radcliffe ([1956] AC, at pp 727 - 729) considers those cases which treat frustration as involving an implied term, cases which involved diverse approaches, sometimes subjective and sometimes objective, in ascertaining the content of the term to be implied. His Lordship suggests ([1956] AC, at p 729) that "frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do".'

   Stephen J observed that Lord Radcliffe's views were 'close to' Lord Reid's views and together they represented the approach which his Honour would apply (161).

   In Codelfa Construction Pty Ltd v State Rail Authority of New SouthWales [1982] HCA 24; (1982) 149 CLR 337, Mason J (Stephen J agreeing) endorsed Stephen J's acceptance in Brisbane City Council of the approach adopted by Lord Reid and Lord Radcliffe in Davis Contractors (357).  After citing passages from the speeches of Lord Reid and Lord Radcliffe, his Honour elaborated:

   'It is implicit, if not explicit, in the judgment of Stephen J, as in the speeches of Lord Reid and Lord Radcliffe in Davis Contractors, that to express a preference for this view of frustration as against the theory of the implied condition and other suggested bases is not to cast doubt on the authority of earlier decisions.  This is of critical importance because the earlier cases provide many illustrations of the proposition that a contract will be frustrated when the parties enter into it on the common assumption that some particular thing or state of affairs essential to its performance will continue to exist or be available, neither party undertaking responsibility in that regard, and that common assumption proves to be mistaken … Two objections may be urged to the width of the proposition I have stated.'

   The first is that the common assumption must be found in the contract itself.  The answer to this objection is that, granted that the assumption needs to be contractual, in the case of frustration, as with the implication of a term, it is legitimate to look to extrinsic evidence in the form of relevant surrounding circumstances to assist us in the interpretation of the contract, unless its language is so plain that recourse to surrounding circumstances would amount to no more than an attempt to contradict or vary the terms of the contract …

   … 

   'The second objection is that the proposition does not sufficiently acknowledge the fact that the event which generally, if not universally, works a frustration, is an event which supervenes after the making of the contract, viz a change in the law which makes it impossible for the parties to execute the contract.  It is not surprising that the cases commonly throw up situations of supervening impossibility caused by a change in the law - they are the more common instances of the unforeseen or unexpected occurrence.  But in principle there is no reason why a mutual assumption arising from a mistaken view that an activity is immune from injunctive relief should not attract the principle of frustration.  No doubt it is more difficult in such a case to show that the grant of injunctive relief was not foreseen or could not reasonably have been foreseen, but if that can be shown then the doctrine of frustration should apply.  The injunction is a supervening event though it does not stem from any alteration in the law (357 - 359).'

   In Codelfa, Aickin J (Stephen J agreeing) approved the manner in which Stephen J considered the question of frustration and reviewed the case law in Brisbane City Council (378).  His Honour added that, apart from quoting more extensively from Lord Radcliffe's speech, he could not do better than 'refer to and adopt all that Stephen J said [in Brisbane City Council] at pp 159 - 163' (378).

1. A frustrating event must occur during the performance of the contract.  The effect of frustration is to terminate the contract automatically, from the time of the frustrating event. ^[92]

   [92] Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202, 206 (Menhennitt J); Re The Continental C & G Rubber Co Pty Ltd [1919] HCA 62; (1919) 27 CLR 194, 201 (Knox CJ & Barton J; Gavan Duffy J agreeing).

2. As Hasluck J observed in Jabiru Metals Ltd v Lynch:[93]

   It appears from Cheshire & Fifoot at par 19.26 and par 19.27 that at common law it is axiomatic that a frustrating event terminates the contract automatically.  Termination is prospective from the time of frustration.  In this respect termination by frustration is like termination for breach or non-fulfilment of a contingent condition.  It follows that rights accrued at the time of frustration are not affected, including the right to sue for damages for any breach that occurred prior to frustration, or to recover a payment fallen due under the contract.  As the contract is not invalid ab initio, operational terms, such as dispute resolution clauses, are also not affected by frustration.

   [93] Jabiru Metals Ltd v Lynch [2009] WASC 238 [38].

3. If the contract contains express provisions which sufficiently deal with an occurrence of a particular event, the rights of the parties should be dealt with by the express terms, and the doctrine of frustration should have no effect.[94]

   [94] See, eg, Claude Neon Ltd v Hardie [1970] Qd R 93 [11] (Lucas J; Wanstall & WB Campbell JJ agreeing); see also, Thors v Weekes (1989) 92 ALR 131, 142 (Gummow J) where the Frustrated Contracts Act 1978 (NSW) was excluded by the fact that the alleged frustrating event was adequately dealt with by the contract.

4. The express provisions will exclude the doctrine of frustration where they specify the effect of the supervening event on the contractual obligations.  In such circumstances, the agreement makes express provision for what is to occur should certain events arise, leaving no room for the operation of the doctrine of frustration.[95]

   [95] Ange v First East Auction Holdings Pty Ltd [2011] VSCA 335 [78] ‑ [79] (Sifris AJA; Neave & Tate JJA agreeing).

5. In Ange v First East Auction Holdings Pty Ltd, the Victorian Court of Appeal observed:[96]

   There is clear authority for the proposition that if an agreement makes express provision for what is to occur should certain events arise, the happening of those events does not ordinarily frustrate the contract.  According to Carter, Peden and Tolhurst, this is because the express terms of the contract leave no room for the operation of the doctrine of frustration.

   In Claude Neon Ltd v Hardie, for example, the parties had entered into a contract for the hire of a neon sign, but the premises on which the sign was erected were resumed by the landlord.  The court held that this event did not frustrate the contract, since it included a clause that deemed the hirer of the sign to have defaulted if his 'interest' in the premises was extinguished or transferred.  The court considered that this term applied in the situation and that since the parties had expressly indicated the result which was to follow from the event (default under the contract), the contract could not be discharged under the doctrine of frustration.

   [96] Ange v First East Auction Holdings Pty Ltd [2011] VSCA 335 [78] ‑ [79] (Sifris AJA; Neave & Tate JJA agreeing).

6. If a contract stipulates that the obligation to perform shall not be affected by specified contingencies, the court will apply the stipulation if it clearly covers the situation (said to be the supervening event).  In Claude Neon Ltd v Hardie,[97] the contract involved the hiring of an illuminated neon sign, which was installed at the defendant's premises. The rent was paid monthly for five years, and was required to be paid even where the defendant's interest in the premises was 'extinguished or transferred'. Two years into the contract the premises were compulsorily acquired and the plaintiff claimed the balance of the rent.

   [97] Claude Neon Ltd v Hardie [1970] Qd R 93.

7. The Court held that the clause was applicable and that the contract was not frustrated by the compulsory acquisition of the defendant's interest, because the clause itself used language that was general and the circumstances in question fell within its ambit.[98]  Accordingly, the doctrine of frustration could not be relied upon by the defendant. 

   [98] Claude Neon Ltd v Hardie [1970] Qd R 93 [11] (Lucas J; Wanstall & WB Campbell JJ agreeing).

8. However, the fact that the parties actually foresee the possibility of a particular event occurring and make contractual provision for it, does not necessarily mean that the contract cannot be frustrated if the foreseen event occurs.[99]  The doctrine of frustration is not excluded merely because the contract makes provision for the contingency in issue.[100]

   [99] Ardee Pty Ltd v Collex Pty Ltd [2001] NSWSC 836 [44] (Palmer J); Beaton v McDivitt(1987) 13 NSWLR 162, 176-7 (Mahoney JA) citing Brisbane City Council v Group Projects Pty Ltd[1979] HCA 54; (1979) 145 CLR 143; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337.

   [100] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 361-3 (Mason J).

9. In Codelfa Construction Pty Ltd v State Rail Authority of New South Wales, the contract required Codelfa to operate plant and equipment in a manner that did not cause undue noise, pollution or nuisance. The contract contained provision for Codelfa to restrict working hours if measures had to be taken to reduce noise, pollution or nuisance.[101]  Injunctions were obtained by third parties restraining Codelfa from performing work on the site between 10.00 pm and 6.00 am each day.  Despite the express provision for the parties' obligations if there was a need to lower noise, pollution or nuisance, the High Court still found that the contract was frustrated by the issuing of an injunction to prevent the three shifts per day that the parties' had contemplated in entering into the contract. The effect of the injunction was to prohibit the continuous three shifts per day, six days per week; reducing the operation to two shifts per day.

   [101] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 362 (Mason J).

10. The contract had been discharged by frustration because the contracted work could not be carried out as contemplated by the parties once the injunctions were granted because it was not contemplated by the parties that the method of construction might prove to be unlawful.  This was the case notwithstanding provision in the contract for Codelfa ensuring that the events that gave rise to the injunction be under their control.

11. To exclude the doctrine of frustration, a contractual provision must sufficiently identify the frustrating event.  However, a provision may, as a matter of construction, be incomplete or insufficient to exclude the doctrine of frustration in respect of the event which has occurred.  Whether or not a contractual provision deals with the frustrating event sufficiently will depend on the construction of the contract.

12. In Codelfa, Mason J observed that the contractual clause contemplating measures be taken to limit noise and pollution did not have such wide ranging effect as to contemplate that the method of construction might be restrained by injunction because it was unlawful.[102]  The contract dealt with the circumstances that gave rise to the frustrating event, but did not identify the event or the outcome.

6.2     Can regard be had to post‑contractual conduct, post‑dismissal of the Native Title Application and deregistration of the WGTO Native Title Party as a claimant group in determining whether the WGTO Compensation Deed has been frustrated?

[102] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 362.

1. The plaintiffs rely on post‑contractual conduct as evidence of the acknowledgement by the defendants of the continued operation of the WGTO Compensation Deed.

2. The plaintiffs argue that after 27 October 2009 (when the Native Title Application was deregistered) the parties conducted themselves in relation to the WGTO Compensation Deed on the basis that they could, and did, exercise their rights and discharged their obligations under the agreement notwithstanding what the defendants say is the alleged frustrating event. 

3. The WGTO Compensation Deed created the following:

   (a)cl 6 and sch 4 of the WGTO Compensation Deed contains a cultural heritage protocol that applies to heritage survey requests by the defendants in relation to s 18 consents in relation to the project and project titles;

   (b)non‑financial benefits such as employment, training, business opportunities and contracting are included as benefits to be provided to members of the WGTO People pursuant to cl 8 of the WGTO Compensation Deed; and

   (c)pursuant to cl 7.1 a relationship committee was required to be established and comprise three members from the Project Participants and three members from the WGTO People.  Further, pursuant to cl 7.3 the relationship committee is required for the first five years after the commencement date of the agreement to meet no less than four times each year and thereafter to agree upon the minimum frequency of meetings and in the absence of agreement, to meet no less than two and not more than four times a year.

4. By exercising such rights and discharging their obligations the plaintiffs claim this conduct demonstrated that the circumstances, after 27 October 2009, were not fundamentally different to those contemplated by the terms of the agreement.  The conduct relied upon by the plaintiffs is as follows:

   (a)on or about 24 November 2009 a deed of accession was executed by the defendants and by Mr Wilfred Hicks, Mr Douglas, Mr Ramirez, and Mrs Dale in or about January 2010 (as contemplated by cl 20.4 of the WGTO Compensation Deed) whereby the fourth defendant Korean Steel Pty Ltd (Korean Steel) became a party to the WGTO Compensation Deed;

   (b)the defendants requested s 18 of the Aboriginal Heritage Act 1978 (WA) Ministerial consents for disturbance in the Agreement Area on the basis of heritage surveys, be undertaken by Sino, WGTO Native Title Party and other native title claim groups, in accordance with cl 10 of the WGTO Compensation Deed, and the cultural heritage protocol (cl 6 and sch 2 of the WGTO Compensation Deed) and ILUA2 on 12 July 2010 and 20 June 2013;

   (c)Mr Wilfred Hicks wrote a letter to Citic, dated 29 May 2012, stating that the WGTO did not oppose the s 18 notice but would not participate in the relocation of engravings;[103]

   (d)relationship committee meetings were held, pursuant to cl 7 of the WGTO Compensation Deed, on 21 November 2012, 21 November 2013, 27 February 2014, 21 August 2014, 20 November 2014 and 26 February 2015;[104]

   (e)Mr Warren Fish, the Executive Director (HSE & Corporate Logistics) for Sino, wrote a letter, dated 13 December 2013, addressed to Wong‑Goo‑Tt‑Oo to the attention of Mr Wilfred Hicks in which Mr Fish referred to invoice 2366, dated 3 December 2013 (seeking payment pursuant to cl 5.1(f) of the WGTO Compensation Deed, stating that the amount of $1,250,000 was payable within 60 days after 28 January 2014) and confirming that the invoice would be accepted as effectively received on 28 January 2014;[105] and

   (f)Mr Fish wrote a letter, dated 17 February 2014, addressed to Wong‑Goo‑Tt‑Oo to the attention of Mr Wilfred Hicks stating that tax invoice 2366 had not been issued by Thaluntha and asking for the tax invoice 2366 to be reissued (to Citic) from Thaluntha.[106]

   [103] Exhibit A, TB tab 25, pages 965 ‑ 966.

   [104] Further amended statement of agreed facts, filed 15 January 2019 [18].

   [105] Exhibit A, TB tab 26, pages 967 ‑ 968.

   [106] Exhibit A, TB tab 28, page 970.

5. In reliance of the plaintiffs' submissions in respect of this point, the plaintiffs seek to tender into evidence (pursuant to s 76C(2)(c) of the Evidence Act 1906 (WA)) minutes of each of the relationship committee meetings and a copy of one of the s 18 Aboriginal Heritage Act notices.  The plaintiffs contend that these documents are relevant to the issue of whether the WGTO Compensation Deed has been discharged by frustration.  They say that these documents are evidence that the parties were not prevented, by the dismissal of the Native Title Application, from performing the terms of the WGTO Compensation Deed.

6. The defendants oppose the tender of the documents and point out that the fact that each of the relationship committee meetings took place and that the heritage survey request was made is admitted by the defendants but that these documents are not relevant to the issue of whether the WGTO Compensation Deed was discharged by frustration.

7. Any evidence of post‑contractual conduct is not, however, relevant to the issue of whether the WGTO Compensation Deed has been frustrated.  The discharge of a contract is the automatic consequence of the frustrating event.  While discharge is only prospective, discharge is automatic.  Further, discharge by frustration does not depend upon election by either party.[107]

   [107] Bank Line Ltd v Arthur Capel & Co [1919] AC 435.

8. Unequivocal acts recognising the existence of a frustrated contract may not preclude reliance on frustration if the requirements of estoppel are established.  However, the plaintiffs make no plea in estoppel.

9. For these reasons:

   (a)the minutes of the relationship committee meetings and the s 18 notice are not relevant to the issue whether the WGTO Compensation Deed has been frustrated and will not be admitted into evidence; and

   (b)the evidence sought to be relied upon by the plaintiffs going to the conduct of the parties post 27 October 2009 is not relevant to the determination of the issue whether the WGTO Compensation Deed was discharged by frustration (that is by a supervening event).

6.3     Interpretation of cl 16.3 of the WGTO Compensation Deed - does cl 16.3 expressly deal with the outcome of the dismissal of the WGTO Native Title Application?

1. The plaintiffs' claim in contract substantially relies upon the effect of cl 16.3 of the WGTO Compensation Deed to oust the application of the doctrine of frustration. 

2. Clause 16 of the WGTO Compensation Deed provides for three events that might occur affecting the registration of the WGTO Native Title Application and the native title claims made by the Kuruma Marthudunera People and the Yaburara and Mardudhunera People, as other registered claim groups, within the meaning of cl 1.1 of the WGTO Compensation Deed. 

3. Clause 16 of the WGTO Compensation Deed provides as follows:

   16.1Combination of claims

   If for any reason the Consent Agreements are not registered as ILUAs, then if the Native Title Party combines the Native Title Application with any other Native Title Claim or any new or replacement claim is lodged by the members of the WGTO People within the Agreement Area, or the Native Title Party intends to amend the Native Title Application by adding or removing any registered applicants to or from the Native Title Claim then the Native Title Party must:

   (a)give prior written Notice of the proposed change in the status of the Native Title Application to the Project Participants;

   (b)if requested by the Project Participants:

   (1)assign their rights under this Deed to the registered applicants under the new Native Title Claim; and

   (2)procure that the Registered Applicants under the new Native Title Claim execute, and deliver to the Project Participants, a deed of assignment and assumption by which they assume the Native Title Party's obligations under this Deed with the prior written consent of the Project Participants.

   16.2Successful determination - assignment to prescribed body corporate

   (a)If there is a determination under the NTA:

   (1)that the Native Title Party holds native title in the claim area; and

   (2)that the native title rights are held in trust by a prescribed body corporate under s 56 of the NTA,

   then the Native Title Party may assign its rights and obligations under this Deed to the prescribed body corporate.

   (b)If the Native Title Party assigns its rights and obligations under this Deed to a prescribed body corporate under clause 16.2(a) then the prescribed body corporate will be entitled to exercise all the powers, rights and benefits of the Native Title Party under this Deed and will become obliged to observe and perform all obligations of the Native Title Party under this Deed.

   16.3Unsuccessful determination

   For the avoidance of doubt, this Deed survives any determination that the WGTO People do not hold native title in the Agreement Area.

4. The subject matter of the WGTO Compensation Deed is to compensate the WGTO People for the effect of the project on native title and TO Rights, by the provision of benefits to the Native Title Party.[108]

   [108] Paragraphs 5 and 6 of the recitals to the Deed under the heading 'Background'.

5. In interpreting the provisions of the WGTO Compensation Deed, the plaintiffs claim that regard can be had not only to the ILUAs, but also to the provisions of the In Principle Agreement and the Framework Agreement.

6. The plaintiffs also submit that the court, in construing cl 16.3 of the WGTO Compensation Deed, should have regard to the intention expressed in the In Principle Agreement that the benefits to be provided by the Project Participants would be provided to the Wong‑Goo‑Tt‑Oo People for a period of 25 years and that termination of any compensation agreement would not be terminated other than by any stipulated termination event, such as default, by the WGTO People or the defendants.

7. To determine whether the In Principle Agreement and the Negotiation Framework Agreement are admissible in determining the proper construction of the WGTO Compensation Deed, regard must be had to the entire agreement clause in cl 21.5 of the WGTO Compensation Deed.

8. The defendants contend that the only relevant admissible agreement the court can have regard to as an aid for construction of the WGTO Compensation Deed is the Negotiation Framework Agreement, as that agreement established the agreed framework for negotiations which is said to be separate in its subject matter to the subject matter of the WGTO Compensation Deed, being the outcome of the negotiations.

9. Clause 21.5 of the WGTO Compensation Deed provides:

   Save for the Consent Agreements, this Deed supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties in respect of its subject matter.

10. ILUA1 and ILUA2 are defined in cl 1.1 of the WGTO Compensation Deed as the Consent Agreements.

11. The purpose of an entire agreement clause has been described by Davies JA in MacDonald v Shinko Australia Pty Ltd who said:[109]

    The purpose … is to exclude any such evidence either to prove terms additional to or different from the written instrument or collateral contracts or to construe the instrument in a way different from the meaning to be inferred solely from its terms.  

    [109] Macdonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152, 156.

12. In this matter the latter is the only point sought to be raised by either party, that is, regard is sought to be had to other written agreements to construe the terms of cl 16.3 of the WGTO Compensation Deed.

13. The former Chief Justice of New South Wales, writing extrajudicially, has said:[110]

    Where the parties have expressly stated that the written document represents the whole of their agreement then, short of rectification or the application of some other collateral doctrine, that clause should, in my opinion, be given full and clear effect. If reference to extrinsic evidence is admissible in some circumstances to determine the true agreement between the parties, surely the assertion that the true agreement is contained entirely in the document is entitled to at least substantial, and usually determinative, weight in this very respect.

    [110] JJ Spigelman, 'Contractual Interpretation:  A Comparative Perspective' (2011) 85 Australian Law Journal 412, 424.

1. As the plaintiffs concede, when cl 16.3 of the WGTO Compensation Deed uses the term 'determination' it is used in that context as a decision being made as to whether or not native title exists and if it does, as a decision deciding who the persons (or group of persons) are who hold native title in accordance with s 223 and s 225 of the NT Act.

2. Section 81 of the NT Act confers exclusive jurisdiction on the Federal Court (except in relation to the jurisdiction of the High Court) to hear and determine applications filed in the Federal Court that relate to native title.

3. Section 55 of the NT Act confers power on the Federal Court to make a determination. Section 55 of the NT Act provides:

   55Determinations by Federal Court

   If:

   (a)the Federal Court proposes to make an approved determination of native title; and

   (b)the determination is that native title exists at the time of making the determination;

   the Federal Court must, at the same time as, or as soon as practicable after, it makes the determination, make such determinations as are required by sections 56 (which deals with holding the native title on trust) and 57 (which deals with non‑trust functions of prescribed bodies corporate).

4. A determination is a determination that native title exists.  Native title is defined in s 223 of the NT Act as follows:

   223Native title

   Common law rights and interests 

   (1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

   (a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

   (b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

   (c)the rights and interests are recognised by the common law of Australia.

   Hunting, gathering and fishing covered

   (2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

   Statutory rights and interests

   (3)Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

   Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

   Subsection (3) does not apply to statutory access rights 

   (3A)Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

   Case not covered by subsection (3) 

   (4)To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

   (a)in a pastoral lease granted before 1 January 1994; or

   (b)in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

5. A determination of native title is defined in s 225 as:

   A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

   (a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

   (b)the nature and extent of the native title rights and interests in relation to the determination area; and

   (c)the nature and extent of any other interests in relation to the determination area; and

   (d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

   (e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease ‑ whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

   Note:  The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

6. Section 61 of NT Act prescribes who has standing to make an application to the Federal Court for a native title determination (which include a native title claim group who hold the common or group rights and interests comprising the particular native title claim).

7. Section 87A empowers the Federal Court to make a determination for part of an area.

8. Section 94A of the NT Act requires the Federal Court, when making a determination of native title, to set out the details of the matters mentioned in s 225. It is plain from this provision that the Federal Court, when making a determination, must determine each of the matters specified in s 225. This point was made clear by Nicholson J in Daniel.[118]

   [118] Daniel v State of Western Australia [2003] FCA 666 [332].

9. A determination that a person or group of persons hold native title must, as required by s 94A, identify each of the matters in s 225 of the NT Act.

10. The order made by McKerracher J to dismiss the Native Title Application, on 23 October 2009, was not a 'determination' within the meaning of the NT Act.

11. When construed in the context of the provisions of the NT Act outlined above it is clear that the order made by McKerracher J to dismiss the Native Title Application, on 23 October 2009, was not a 'determination' that the WGTO People do not hold native title in the Agreement Area, nor can the order be construed as a 'determination' within the meaning of cl 16.3 of the WGTO Compensation Deed.

12. The words 'for the avoidance of doubt' in cl 16.3, add nothing to the proper construction of this provision.  The words 'for the avoidance of doubt' are usually taken to mean to make something explicit which has already been provided for in an agreement, that is, they are words that mean to clarify what has already been provided for.  However, the topic of a 'determination that the WGTO People do not hold native title in the Agreement Area' has not otherwise been dealt with in any other provision of the WGTO Compensation Deed.

13. The effect of the dismissal of the WGTO Native Title Application was that each of the persons named in the Form 1 application (as amended) ceased to have standing to proceed with their application (made pursuant to s 61(2) of the NT Act) for a determination of native title in relation to the Agreement Area.

14. Clause 16.3 of the WGTO Compensation Deed does not have more than two primary meanings.  Nor is there any patent ambiguity.  The words 'any determination that the WGTO People do not hold native title in the Agreement Area' is not self‑contradictory, or obscure.  Nor is there any latent ambiguity in applying cl 16.3 to the facts.

15. To construe cl 16.3 to have effect as contended by the plaintiffs would require the court to read a comma into cl 16.3 after the word 'Area' and to then include the words 'or the Native Title Application is dismissed' as follows:

    For the avoidance of doubt, this Deed survives any determination that the WGTO People do not hold native title in the Agreement Area, or the Native Title Application is dismissed.

16. In the face of the entire agreement clause, plainly it cannot be presumed that the parties intended to supplement cl 16.3 by the addition of these words which would substantially extend the survival of the agreement beyond the circumstances expressly stated in cl 16.3.

17. Even leaving aside the effect of the entire agreement clause, and even if it can be said that cl 16.3 is ambiguous and regard can be had to cl 12 of the Negotiation Framework Agreement, 'no gap' can be said to arise in cl 16.3 as there is an insufficient connection between the effect of each provision in the two agreements.  Nor can an inference be drawn that words have been inadvertently omitted to enable words to be impliedly read in.  In any event, the plaintiffs plead no case for rectification.

18. Whilst the WGTO Compensation Deed provides for the parties' obligations upon the Native Title Application being determined, the agreement does not provide for what is to occur if the Native Title Application is dismissed.

19. The existence of the Native Title Party is critical to the performance of the WGTO Compensation Deed. 

20. As there has not been, since 23 October 2009, a Native Title Application, the supervening events (of the dismissal and consequent deregistration of the Native Title Application) have resulted in a fundamentally different situation to the situation contemplated in the WGTO Compensation Deed.

21. Unlike the circumstances in Codelfa, cl 16.3 of the WGTO Compensation Deed does not deal with the outcome of the frustrating event (that is, the dismissal of the Native Title Application).  The answer to the question, of whether the situation arose by the dismissal and subsequent deregistration of the WGTO Native Title Party as a registered claimant group is fundamentally different from the situation contemplated by the WGTO Compensation Deed, is yes.

22. For these reasons, the WGTO Compensation Deed has been discharged by these supervening events.

1. Uncertainty principles

7.1     Legal principles

1. A provision of a contract will fail for uncertainty and will be rendered meaningless and void if the provision requires the parties to do something that is impossible.[119]  The same principle applies to an entire contract, if the provision (or provisions) that are uncertain are incapable of severance.  An uncertain provision may be incapable of severance because of the importance which the parties may be considered to have attached to it, and thus affect the whole of the contract.[120]

   [119] Maio v City of Stirling [No 2] [2015] WASC 189 [104] (Le Miere J).

   [120] Maio v City of Stirling [No 2] [2015] WASC 189 [108] (Le Miere J).

2. Where a party to a contract is a trustee, a trust will fail if its purpose fails.  In Cancer Council of Western Australia v Attorney General (WA), Banks‑Smith J observed:[121]

   A trust 'fails' if its purpose fails.  Its purpose will fail if it is impracticable or impossible to fulfil.

   This may happen in a range of circumstances, but examples include where a gift is made to a charitable institution that has ceased to exist; where the land comprising trust property was impracticable for the purpose; and where the trust property is insufficient to carry out the identified purpose.

7.2     Does the WGTO Compensation Deed fail for lack of certainty?

[121] Cancer Council of Western Australia v Attorney General (WA) [2016] WASC 297 [23] ‑ [24].

1. The defendants point out that the entire architecture of the WGTO Compensation Deed is centred around a workable and sufficiently certain definition of a 'Native Title Party' which holds or may hold with some certainty at least or some possibility at least in the future, native title and traditional rights in the project area. 

2. It is conceded by the plaintiffs that no application can be made in the future for native title in the Agreement Area.  The holder of native title in the project area has finally been determined.

3. The recitals to the WGTO Compensation Deed state that the Project Participants wish to share the benefits of the project with the WGTO People and other indigenous people, and ensure that they are appropriately compensated for the effect of the project on native title and TO Rights through the benefits provided under the Deed.  The recitals contemplate that the WGTO People do hold native title and TO Rights justifying the payment of compensation by the Project Participants.

4. Various clauses of the WGTO Compensation Deed expressly contemplate there will be at all times in the future a Native Title Party that does hold, or may hold or have a real possibility of holding, native title and TO Rights in the Agreement Area.

5. TO Rights are defined in cl 1.1 of the WGTO Compensation Deed as:

   (a)native title rights and interests;

   (b)Traditional Rights; and

   (c)any other rights in relation to land or water held by Aboriginal people in relation to the Agreement Area, other than rights obtained by grant under statute and rights held by Aboriginal people in common with other members of the public.

6. The Milestone Payment that is the subject of claim of debt in this action is subject to cl 5.2(f) of the WGTO Compensation Deed which states:

   The Native Title Party's entitlement to payment under this Deed is in consideration of the continued compliance of the Native Title Party with the terms of this Deed, ILUA1 and ILUA2.

7. The WGTO Native Title Party warranty under ILUA1 and ILUA2 states:[122]

   The WGTO Native Title Party warrants that:

   1.To the best of their knowledge and belief the WGTO People hold the WGTO Traditional Rights and native title in the Agreement Area … 

   [122] Exhibit A, TB tab 8, page 259 (ILUA1); Exhibit A, TB tab 7, page 126 (ILUA2).

8. The warranty in the WGTO Compensation Deed is slightly different.  It reads:[123]

   The Native Title Party warrants to the best of its knowledge and belief that:

   1.the WGTO People hold or may hold native title and the traditional rights and native title in the agreement area … 

   [123] Clause 15.1 of the WGTO Compensation Deed; Exhibit A, TB tab 9, page 405.

9. Following the decision in Dale, the WGTO Native Title Party cannot warrant that they hold TO Rights and native title in the project area.

10. If there are no WGTO People it necessarily follows that there are no WGTO People who hold TO Rights.

11. Although the wording is slightly different in the WGTO Compensation Deed, the Native Title Party cannot warrant that they hold or may hold native title and TO Rights in the Agreement Area because of the decision of McKerracher J in Dale.  The phrase 'may hold' contemplates the situation that it is possible that a court will determine that native title exists.  That possibility no longer exists for the Native Title Party following the decision in Dale.

12. It is now no longer possible to identify, with any precision, the persons comprising the Native Title Party.  No person or group can be described as the Native Title Party as defined to the WGTO Compensation Deed.  There are no names on the Register of Native Title Claims of any of the people belonging to the Wong‑Goo‑Tt‑Oo People that constitute a collection of persons capable of holding native title.  There is no WGTO Native Title Application.  No court can determine that any aboriginal person is a WGTO person following the decisions in Daniel and Dale, particularly in light of the finding that Wong‑Goo‑Tt‑Oo People was adopted 'for the purposes of the proceedings'.[124]

    [124] Dale v The State of Western Australia [2009] FCA 1201 [11].

13. Nor can the Native Title Party be ascertainable by reference to individuals, their children and their children's children listed in the Form 1 unless those individuals, as a group, properly exist as a group capable of holding native title over the Agreement Area. 

14. Such performance would be radically different from that which was undertaken by the parties.  The payments set out in the WGTO Compensation Deed are to be made for the benefit of the WGTO People as a whole.  Yet, there are no WGTO People.

15. Clause 5.4(a) provides that in respect of the manner of milestone and annual payments that the Project Participants are to make the payments to the WGTO Trustee for and on behalf of the Native Title Party and the WGTO People.  Clause 5.4(b) requires the Project Participants to make the payments to a bank account operated by the WGTO Trustee for and on behalf of the WGTO People.  Pursuant to cl 5.5 the Project Participants are required to make the payments to, or at the direction of the Native Title Party for and on behalf of the current and future generations of the WGTO People as a whole.

16. As it is now not possible to identify with any precision the persons comprising the WGTO People, the provisions requiring payments on their behalf are uncertain and unenforceable. 

17. Nor is it now possible to identify with any precision the persons comprising the Native Title Party as appearing 'from time to time' there are no names on the register of native title claims as claimants in the Native Title Application.  The definition of WGTO People and Native Title Party in cl 1.1 of the WGTO Compensation Deed expressly contemplates that there will be, at all times, persons or groups satisfying the description of such persons or groups who do hold, or may hold or have a real possibility of holding native title and TO Rights in the Agreement Area.

18. In light of the concession by the plaintiffs that no fresh claim can be made in the future to such rights, cl 5 of the WGTO Compensation Deed is uncertain and unenforceable. 

19. The references to a Native Title Party in the WGTO Compensation Deed existing into the future that does hold or have a real possibility of holding native title and traditional rights into the future also include:

    (a)Clause 3.2(c) regarding the Native Title Party's right to terminate the deed by issuing a notice if it forms the opinion that the defendants have abandoned the project.

    (b)Clause 5.6(a) which obliges the defendants to notify the Native Title Party as soon as reasonably practical if a project suspension event occurs.

    (c)Clause 5.7(a) which obliges the defendants to issue a notice to the Native Title Party in relation to payment adjustments in a payment year.

    (d)Clause 6 states that the defendants will consult with the Native Title Party in relation to the implementation and amendment of certain protocols.

    (e)Clause 7 establishes a relationship committee with members nominated by the Native Title Party.

    (f)Clause 8 obliges the defendants to provide employment, training and contracting for WGTO People, with the Native Title Party being responsible for maintaining a register of WGTO People to implement the clause.

    (g)Clause 9 states that the defendants will work with the Native Title Party and other registered claim groups in relation to the development and delivery of a cultural awareness training course.

    (h)Clauses 11, 12 and 13 contain acknowledgements, releases, and covenants from the WGTO Native Title Party and the WGTO People which are predicated on those persons holding native title and TO rights, and not some other people (bearing in mind the warranties provided in clause 15).

    (i)Clause 14 deals with payment suspension events and other default events.  It requires certain notices to be issued to the Native Title Party.

20. Plainly these provisions have been rendered inoperable as there are no WGTO People and no WGTO Native Title Party.

21. The WGTO Compensation Deed defines the 'WGTO Trustee' as the duly appointed trustee of the WGTO Trust.[125]  The 'WGTO Trust' is in turn defined to mean the "Wong‑Goo‑Tt‑Oo Charitable Trust which is established under a trust deed the beneficiaries of which are the WGTO People'.[126]

    [125] Clause 1.1 of the WGTO Compensation Deed.

    [126] Clause 1.12 of the WGTO Compensation Deed.

22. The charitable objects of the Trust are:[127]

    Relieving the poverty, misfortune, destitution, disadvantage, distress, dispossession, ill health, lack of education and suffering of the Members.

    [127] Exhibit A, TB tab 1, page 18.

23. The 'Members' of the Wong‑Goo‑Tt‑Oo Group Charitable Trust are not defined in the deed of settlement but are defined in cl A of the recitals as follows: [128]

    A.The members of the Wong-Goo-Tt-Oo Group (the 'Members') are those Aboriginal people who are holders or claimants of native title in the area of land and water covered by native title claim number WC98/40 ('the claim') and all other members of the Wong‑Goo‑Tt‑Oo Group living in the area covered by the claim.

    [128] Exhibit A, TB tab 1, page 2.

1. On the dismissal of the Native Title Application there is no such group of people that can be properly described as 'Members' of the 'WGTO Trust'.  Consequently, the purpose of the WGTO Trust has failed.

1. Conclusion

1. For these reasons, the answers to the questions in [72] of these reasons is:  (a), (b), (c) and (d) 'yes', and the answer to question (e) is 'no'.

1. Counterclaim:  declaratory relief

1. The defendants seek, by way of counterclaim, declaratory relief in the nature of a declaration from this court that on, and from, 27 October 2009:

   (a)the WGTO Compensation Deed, ILUA1 (to the extent that it seeks to apply to the WGTO People), and ILUA2 (to the extent that it seeks to apply to the WGTO People) have been frustrated following the dismissal of the WGTO Native Title Application; and

   (b)the WGTO Compensation Deed is unenforceable.

2. A declaration generally should not be made unless all persons interested in the declaration are made parties to the application.[129]  This is because it can be futile to grant a declaration that would otherwise affect the rights of interested parties where those interested parties have not been afforded the chance to be heard; notably, persons who are not parties to a declaratory judgment are not bound by it.[130]

   [129] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 [942] (Edelman J).

   [130] Sons of Gwalia Ltd v Margaretic [2006] FCAFC 17; (2006) 149 FCR 227, 231 [9] (Finkelstein J).

3. There is, as I have determined, no discernible WGTO People or Native Title Party as those terms are defined in the WGTO Compensation Deed or in ILUA1 or ILUA2.

4. Whether or not to withhold declaratory relief in the absence of a party involves an 'extremely pragmatic' approach.[131]  As Edelman J pointed out in Mineralogy Pty Ltd v Sino Iron Pty Ltd, the issue essentially concerns a question of whether sufficient procedural fairness has been given for the interested parties to be bound by the declaratory relief,[132] and that very similar considerations arise in the case of both the issue of the declaration and injunction where third parties are concerned, therefore, the court should consider whether to withhold declaratory relief where there is a risk of injuring the rights of third parties who have not had the opportunity to be heard.[133]

   [131] Mentink v Registrar of Australian Register of Ships [2014] FCA 1138; (2014) 320 ALR 137, 164 [172] (Greenwood J).

   [132] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 [944] (Edelman J).

   [133] Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 [947] ‑ [948] (Edelman J).

5. In this case, there is nothing before the court to suggest that the rights of third parties will be harmed; and the only third parties likely to be impacted by the declaratory relief are those said to be members of the Native Title Party (as that term is defined in the WGTO Compensation Deed). 

6. As the defendants point out, and as I have explained earlier in these reasons, an order for the substituted service of the defence and counterclaim was made on 7 December 2016 by Registrar C Boyle.  Mr Peter Jeffries and Mr Peter Hicks were appointed, for the purpose of the defendants' counterclaim, as representatives of any persons claiming to fall within the ambit of the 'Native Title Party' (as that term is defined in the WGTO Compensation Deed).  Both Mr Peter Jeffries and Mr Peter Hicks were joined as parties to the counterclaim as the first third and first fourth defendants by counterclaim respectively. 

7. Notices, in the form of Annexure A to these reasons, were published in the Koori Mail and Pilbara Echo newspapers in December 2016.  Accordingly, significant steps have been taken to notify interested parties and allow them to be heard in this matter.  It cannot be said that the persons likely to be affected by the declaratory relief have not been afforded the opportunity to be heard. 

8. Given my findings outlined earlier in these reasons and given the fact that all interested parties have been afforded the opportunity to be heard, it would not be appropriate to withhold declaratory relief.  I would make the declaration sought by the defendants. 

ANNEXURE A

Schedule 1 - Newspaper notification[134]

[134] This notice was attached to orders made by Registrar C Boyle on 7 December 2016 for the purpose of publishing in the Koori Mail and Pilbara Echo newspapers.

Notice of Action - Cape Preston Project Deed (WGTO Compensation)

1.CITIC Pacific Mining Management Pty Ltd, Sino Iron Pty Ltd and Pastoral Management Pty Ltd (CITIC Parties) are parties to the Cape Preston Project Deed (WGTO Compensation) (Deed).  The Deed includes provisions for the payments of compensation to the WGTO (Wong-goo-tt-oo) People as a 'Native Title Party'.

2.Native Title Tribunal Claim WC98/40 by the WGTO People was dismissed on 23 October 2009, and the WGTO People were removed from the register maintained at the National Native Title Tribunal on 27 October 2009.

3.In proceeding CIV 1260 of 2015 in the Supreme Court of Western Australia (Proceeding), the CITIC Parties are seeking determination of whether the Deed remains enforceable in light of the deregistration of the WGTO People as a native title group which will determine whether the CITIC parties are obliged to pay compensation under the Deed.  A copy of the CITIC Parties' Defence and Counterclaim in the Supreme Court Proceeding is available on request from Thaluntha Pty Ltd.

4.Peter Jefferies and Peter Hicks have each been appointed as representatives of any 'Native Title Party' under the Deed for the purposes of the Proceeding.

5.Although Peter Jefferies and Peter Hicks have been appointed as representatives, if you have an interest as a 'Native Title Party' or part of the WGTO People under the Deed, you are entitled to seek to be heard in the Proceeding or to be made a party to the Proceeding on application to the Court.  If you seek to appear in the Proceeding, and are unsuccessful, you may be liable for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EH
Research Associate/Orderly to the Honourable Justice Smith

14 JUNE 2019