Murgha v State of Queensland [2008] FCA 33 (25 January 2008)

Last Updated: 29 January 2008

FEDERAL COURT OF AUSTRALIA

Murgha v State of Queensland [2008] FCA 33

NATIVE TITLE - deed of grant of land in trust - validity of interest determined in advance of native title determination - irregularities in the application - the effect of irregularities in the exercise of statutory power



Native Title Act 1993 (Cth)

Aborigines and Torres Strait Islanders Affairs Act of 1965 (Qld)
Local Government (Community Government Areas) Act 2004 (Qld)
Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld)

Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 considered
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 considered


LESLIE MURGHA AND STEWART ERIC HARRIS ON BEHALF OF THE COMBINED GUNGGANDJI PEOPLE v STATE OF QUEENSLAND, CAIRNS PORT AUTHORITY, CAIRNS CITY COUNCIL, YARRABAH ABORIGINAL SHIRE COUNCIL, PERCY & ALF NEAL, BLACK AND WHITE (QUICK SERVICE) TAXIS PTY LTD, ERGON ENERGY CORPORATION LIMITED, TELSTRA CORPORATION LIMITED, BRENT ROBERT BASIL BATCH, J M CAMPBELL, WAYNE CHADWICK, N T CHAPMAN, JOHN DEUBLE, WILLIAM DILLON, BARRY EHRKE, DANIEL GARY HUDSON, DON MCKINNON, DONALD ALAN MORRIS, JON NEVILLE, ROBERT PETER RALPH, BRUCE ROSE, ROBERT STEFAN JOHN STANDEN, PAUL RICHARD WILLIAMS, MICHAEL CONNOLLY, VANCE HENRY GORDON, THE PUBLIC TRUSTEE OF QUEENSLAND AS EXECUTOR OF THE ESTATE OF ALAN CONRAD KYNUNA SNR, HARRY BLUCHER LUDWICK, DARRYL RALPH POLLARD AND ELAINE MARINA POLLARD, ALLAN MIMO YEATMAN, FITZROY ISLAND HOLDINGS PTY LTD, QUICKSILVER CONNECTIONS LIMITED, COMMONWEALTH OF AUSTRALIA, SELMA BAIRD, DAIKYO (NORTH QUEENSLAND) PTY LTD, FRANKLAND ISLANDS CRUISE & DIVE PTY LTD, GREEN ISLAND UNDERWATER OBSERVATORY PTY LTD, REEF MANAGEMENT PTY LTD, REEF VENTURES PTY LTD AND SUNLOVER CRUISES

QUD 6013 OF 2001




DOWSETT J
25 JANUARY 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6013 OF 2001

BETWEEN:

LESLIE MURGHA AND STEWART ERIC HARRIS ON BEHALF OF THE COMBINED GUNGGANDJI PEOPLE Applicant

AND:

STATE OF QUEENSLAND First Respondent CAIRNS PORT AUTHORITY Second Respondent CAIRNS CITY COUNCIL Third Respondent YARRABAH ABORIGINAL SHIRE COUNCIL Fourth Respondent PERCY & ALF NEAL Fifth Respondent BLACK AND WHITE (QUICK SERVICE) TAXIS PTY LTD Sixth Respondent ERGON ENERGY CORPORATION LIMITED Seventh Respondent TELSTRA CORPORATION LIMITED Eighth Respondent BRENT ROBERT BASIL BATCH, J M CAMPBELL, WAYNE CHADWICK, N T CHAPMAN, JOHN DEUBLE, WILLIAM DILLON, BARRY EHRKE, DANIEL GARY HUDSON, DON MCKINNON, DONALD ALAN MORRIS, JON NEVILLE, ROBERT PETER RALPH, BRUCE ROSE, ROBERT STEFAN JOHN STANDEN, PAUL RICHARD WILLIAMS Ninth Respondent MICHAEL CONNOLLY Tenth Respondent VANCE HENRY GORDON Eleventh Respondent THE PUBLIC TRUSTEE OF QUEENSLAND AS EXECUTOR OF THE ESTATE OF ALAN CONRAD KYNUNA SNR Twelfth Respondent HARRY BLUCHER LUDWICK Thirteenth Respondent DARRYL RALPH POLLARD AND ELAINE MARINA POLLARD Fourteenth Respondent ALLAN MIMO YEATMAN Fifteenth Respondent FITZROY ISLAND HOLDINGS PTY LTD Sixteenth Respondent QUICKSILVER CONNECTIONS LIMITED Seventeeth Respondent COMMONWEALTH OF AUSTRALIA Eighteenth Respondent SELMA BAIRD Nineteenth Respondent DAIKYO (NORTH QUEENSLAND) PTY LTD Twentieth Respondent FRANKLAND ISLANDS CRUISE & DIVE PTY LTD Twenty-First Respondent GREEN ISLAND UNDERWATER OBSERVATORY PTY LTD Twenty-Second Respondent REEF MANAGEMENT PTY LTD Twenty-Third Respondent REEF VENTURES PTY LTD Twenty-Fourth Respondent SUNLOVER CRUISES Twenty-Fifth Respondent

JUDGE:	DOWSETT J
DATE:	25 JANUARY 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 In these proceedings the applicants seek a determination of Native Title (the "Native Title claim") pursuant to the Native Title Act 1993 (Cth) (the "Native Title Act"). The application relates to land east of Cairns, including Cape Grafton and surrounding areas. Most, if not all, of the subject land has been reserved for Aboriginal use, in one form or another, for many years. I do not, by that statement, mean to imply that Aboriginal occupation commenced only as the result of governmental action after sovereignty. Part of the land included in the claim is part of land described as Lot 207 on Plan NR 7310 ("Lot 207"). That lot is included in a Deed of Grant of Land in Trust dated 29 October 1986. The grant was to Yarrabah Aboriginal Council (the "council"), and was said to be a grant in fee simple and in trust, to be held for the benefit of Aboriginal inhabitants and for no other purpose. The council was established pursuant to subs 44(2) of the Aborigines and Torres Strait Islanders Affairs Act of 1965 (Qld) and reg 18 of the Aborigines and Torres Strait Islanders Regulations 1966. It was incorporated pursuant to s 15 of the Community Services (Aborigines) Act 1984 (Qld). Pursuant to s 70 of the Local Government (Community Government Areas) Act 2004 (Qld), it continues in existence under the name "Yarrabah Shire Council".

2 I am presently concerned with a claim by the fourteenth respondents, Elaine Marina Pollard and Darryl Ralph Pollard (the "Pollards"). As I understand it, neither is a member of the claim group in the Native Title claim. They claim an interest in part of Lot 207 which is subject to the Native Title claim, such interest allegedly arising pursuant to an application made by them in 1986 or 1987 under the provisions of the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) (the "Land Holding Act"). Their claim relates to land identified as Lot 13 on RC 159893, a survey plan which has not been registered. Clearly, consideration of the Native Title claim will involve consideration of the effect of such interest as the Pollards have in Lot 13. It is therefore necessary to determine the validity of their claim.

3 Other persons also claim non-Native Title interests in parts of the land which is subject to the Native Title claim. These claims have become obstacles to resolution of the Native Title claim, largely because the parties are unclear as to whether such claims are legally justified. For that reason, it is appropriate that their validity or otherwise be determined in advance of the determination of the Native Title claim. These proceedings, in which the Pollards seek appropriate declaratory relief, are designed to resolve that matter as between the Pollards and the applicants and, to the extent necessary, between those parties and any other interested respondent or respondents. It is in this way that the Court has jurisdiction to resolve the dispute concerning the Pollards’ claim. In the end, the interested parties have effectively agreed that the claim should succeed. The question is whether I should grant appropriate declaratory relief.

4 I set out below various provisions of the Land Holding Act, using the form in which it was originally enacted and as it was at the time of the Pollards’ application. There have been subsequent amendments, but none has any relevant substantive effect. Section 5 provided relevantly as follows:

‘(1) A qualified person who has attained the age of 18 years and who desires a tenure of land that is situated in a trust area may, subject to this Act, make application to the trustee council for its approval that a lease be granted to the applicant over the land to which the application relates.

(2) ...

(3) An application under subsection (1) –

(a) may be made by any number of qualified persons, to the intent that where there is more than 1 applicant the tenure of the land in question would be held by them as joint tenants or tenants in common; and

(b) shall identify the land to which it relates –

(i) by the surveyed description thereof (if any); or

(ii) by the metes and bounds description, if it is known; or

(iii) by such other means as may be appropriate in the circumstances; and

(c) shall be in or to the effect of the prescribed form.

(4) ...’

5 The Pollards are, and were at all material times, qualified persons and over the age of 18 years. Lot 13 is situated in a trust area, and Yarrabah Aboriginal Council, now the Yarrabah Shire Council, was, and is, a trustee council. Section 6 provided:

‘(1) A trustee council to which application under section 5 has been duly made –

(a) shall cause notice of the application to be plainly exhibited in a public place in the trust area for a period of 28 days and shall, within 10 days after the expiration of that period, determine whether the qualified person or persons who is or are seeking tenure of the land identified in the application should be granted the tenure; and

(b) shall within 7 days after the determination under paragraph (a) is made, give notification in writing to the applicant of the determination and if it is a refusal of the application, notify the applicant in writing of the grounds for the refusal; and

(c) shall within 28 days after the determination under paragraph (a) is made, give notification in the prescribed form of the determination to the Minister who shall forthwith notify the Minister administering the Land Act 1994.

(2) A qualified person who is a resident of the community in the trust area where an application is made and any other person having, in the opinion of the trustee council, a bona fide interest in the matter of an application is entitled to object, orally or in writing, within the 28 days referred to in subsection (1)(a) to the approval of the application and the trustee council shall have regard to every such objection duly made to it when it is determining a matter of the application.

(3) In making its determination referred to in subsection (1)(a) a trustee council shall observe the following factors –

(a) security of tenure for qualified persons of land occupied or used or sought to be occupied or used by them;

(b) the social and economic development of the trust area within which the land in question is situated and of the community of qualified persons therein;

(c) the interest of the community of qualified persons resident in the trust area in the use made or to be made of land within the trust area;

giving to each factor such weight as the council considers proper in each case.’

6 Section 9 provided relevantly:

‘(1) The tenure that may be applied for under section 5 is –

(a) a lease in perpetuity where the land to which title is sought does not exceed one ha in area;

(b) ... .

(2) Where an application under section 5 has been approved by the Trustee Council ... -

(a) the person or persons specified in the application as seeking the tenure, being a qualified person or qualified persons competent to make an application under section 5(1), shall be entitled to be granted in accordance with subsection (1) a lease in perpetuity or other appropriate lease of the land identified in the application; and

(b) the Governor in Council is hereby authorized to grant to the person or persons referred to in paragraph (a) a lease in perpetuity or other appropriate lease of the land identified in the application pursuant to the Land Act [1962-1985].’

7 Section 10 provided:

‘(1) Where the title to land in respect of which any person or persons is or are entitled to a lease pursuant to section 9(2) is vested in an Aboriginal or Island council the title shall, upon the approval referred to in section 9(2), divest from the council and the land shall thereupon become and be Crown land within the meaning of the Land Act 1962-1985.

(2) ...

(3) The purpose for which land shall become and be Crown land under subsection (1) or (2) is the issue of a lease in perpetuity or other appropriate lease, in accordance with this Act, to the qualified person or persons approved by the appropriate trustee council and no other authority shall be exercised on behalf of the Crown in respect of the land unless that lease has been issued.

(4) Upon land becoming Crown land under subsection (1) or (2) it ceases to be part of the trust area within which it is situated but for [certain specific] purposes ... .’

8 Section 11 provided:

‘(1) Within 28 days after notification has been given to him under section 6(1)(c) ... the Minister within the meaning of the Land Act [1962-1985] shall cause to be given to the applicant to whom the grant of a lease has been approved by a trustee council ... notification in writing that approval of his application has been recorded and that an appropriate lease is in the process of being issued.

(2) ... .’

9 The circumstances surrounding the Pollards’ claim appear from the affidavits sworn by them and filed on 27 September 2007. Mr and Mrs Pollard were married in Cairns on 13 April 1985 and have six children. At the time of their application pursuant to the Land Holding Act, they had three children, born on 31 May 1982, 6 December 1984 and 21 December 1986. Mr Pollard was born at Gordonvale on 12 June 1961 and moved to Yarrabah with his family in about October 1976. His mother’s family lived in the Yarrabah area. He has resided in Yarrabah ever since, save for a period from about September 1994 to December 2002, when he and his family moved to Kowanyama. Mrs Pollard was born in Cairns but has lived all her life in Yarrabah, save for the period between September 1994 and December 2002 when she and her family were at Kowanyama. Her mother was born at Yarrabah. Whilst the family was at Kowanyama they frequently visited Yarrabah. They have lived there since December 2002.

10 In the early 1980s Mr and Mrs Pollard were living with Mr Pollard’s grandfather in the Yarrabah township. In about June 1984 Mr Pollard decided to lease a block of land at Buddabadoo. He intended to farm the block. He wrote to the Yarrabah Aboriginal Council seeking a lease. He no longer has a copy of that letter. However its receipt was acknowledged by the Yarrabah Community Council in a letter dated 19 June 1984 which stated:

‘Thank you for your letter of 8^th June, 1984. Your letter will be held on file for consideration of lease of the land in question at a later date.’

11 On 3 August 1984 he received a further letter from the council referring to the application and advising that:

‘At its meeting of 31^st July, 1984, Council resolved that the following conditions should apply to future land leases at Yarrabah.

1. Housing blocks to be one quarter acre.

(20 metre frontage x 40 metre deep).

2. Farm blocks to be 15 acres.

3. Clearance either side of creeks or streams to be 20 metres.

4. A minimum of 5 acres be cultivated on farming blocks within first 12 months.

5. Rentals to be $2-00 per week, subject to review at a later date, payable quarterly.

6. Toilet and garbage facilities to be established by lessees before taking up residence (plan of toilet to be supplied).

7. Rates to be payable at a rate to be fixed at a later date.

8. Land the subject of a lease will revert to Trustees (Council) should lessee cease to become a resident of Yarrabah.

You should now commence to peg out the block you have applied for so the Council may inspect the site and reach agreement with you on which of the above conditions are applicable to your block.’

Both letters pre-dated the enactment of the Land Holding Act.

12 By 1986 the Pollards’ intentions had changed. They decided that they would prefer to live closer to town and identified Lot 13 as being suitable for their purposes. That lot had previously been claimed by other residents, Mr and Mrs Yeatman, who had cleared part of the block. Mr Pollard was aware that Mr and Mrs Yeatman had decided to surrender their interest to Mr Yeatman’s brother, Willie. Mr Pollard spoke to Mr Peter Yeatman and Mr Willie Yeatman. Both agreed that Mr and Mrs Pollard should apply for Lot 13. Towards the end of 1986 Mr and Mrs Pollard wrote to the council in the following form:

‘We would like to cancel our application requesting land over Buddabadoo, as it’s a long way to travel from Buddabadoo into mission, also the roads are not up to proper standards. If we may, please could we reapply for land at Buckey (sic), to build a house and for mixed farming. This land at Buckey (sic) is close to Mission and is not far away. We have spoken to Peter Yeatman and his brother Willie who had claimed the land, and they have said they didn’t want to (lay) claim it any more (sic). If granted the land, may we request it to be marked out straight away so we could build a house straight away, instead of waiting for a new house as promised.’

13 Attached to the letter was a rough sketch of the relevant area. Mr Pollard delivered the letter to the council. In para 20 of his affidavit he said that this was towards the end of 1986. He later said that it was in the second half of 1986. The letter and the sketch were stamped with the Yarrabah Community Council stamp, indicating that they were received on 2 November 1987. Mr Pollard disputes that date, and I see no reason to disbelieve his evidence on that score. During the late 1980s the council seems to have described itself as the Yarrabah Community Council. However I have been referred to no statutory authority for that practice.

14 In late 1986 or early 1987 Mr and Mrs Pollard commenced to clear the land. On 1 April 1987 Mr Pollard went to the council office and obtained a Form 1 which was the form of application prescribed by the Aborigines and Torres Strait Islanders (Land Holding) Regulations 1986 (the "Regulations") made under the Land Holding Act. The Regulations came into effect on 17 May 1986 so that they were in force at the time of the Pollards’ 1986 letter. The application form was supplied to Mr Pollard by Mr Saul Burns who was the council’s Lands Clerk. Mr Burns actually filled out the form, inserting an erroneous date as Mrs Pollard’s birthday. Mr Pollard signed the form, and Mr Burns witnessed it. The circumstances in which Mr Pollard came to attend upon Mr Burns may be inferred from the affidavit of Leon Yeatman filed on 1 November 2007. It appears from exhibit LYO2 that on 24 March 1987 the council chairman wrote to persons who had applied for land, asking them to complete ‘special new forms’ at the council office. It was said that Mr Burns would assist them and mark out the land. No doubt Mr Pollard was responding to that letter when he went to the council office.

15 There were a number of irregularities in the way in which the application was completed. Firstly, the relevant applicant (or declarant as the applicant is described therein) is said to be ‘Darryl Ralph and Elaine Maria Pollard and Family’. Secondly, the "declarant" asserts that ‘I have attained the age of 18 years and my date of birth is 12/6/61, 16/10/63, 31/5/82, 6/12/84, 21/12/86.’ The last three dates are the birthdays of the Pollards’ three eldest children. The reference to ‘and Family’ and inclusion of the children’s birthdays may suggest that the Pollards’ three children were to be included as applicants. None of the three children had attained the age of 18 years as at the date of the declaration. They were then aged 4 years, 2 years and 4 months respectively. They were therefore not entitled to a grant. Finally, only Mr Pollard signed the application. I will return to these matters at a later stage.

16 In June or July of 1987 Mr Burns visited Lot 13 where the Pollards had built a house in which they were residing. He came for the purpose of identifying the boundaries of the relevant land. He returned about two weeks later and marked out the block with pickets. Mr Pollard saw him do so and assumed that the application would proceed. He had no direct knowledge of the appropriate procedures. He was never told that anybody had objected to their application. He next heard from the council by a letter from its solicitors dated 4 October 2002, advising that the state government ‘has now confirmed your entitlement to a Grant of a Perpetual Lease ...’. The letter also stated that there was a Native Title claim over the land and enquired whether Mr and Mrs Pollard would accept the offer of a perpetual lease. Mr Pollard responded to that letter by fax, acknowledging receipt and pointing out that the solicitors’ letter had been sent to Yarrabah instead of to Kowanyama where he was then residing. He indicated that a letter in response was in the mail. In that letter Mr and Mrs Pollard accepted the offer of a perpetual lease.

17 On 21 October 2002 Mr Pollard received a further letter from the solicitors for the council, asking him to attend a meeting with government surveyors, such meeting to be held on 28 October 2002. Notes of the discussions which occurred at that meeting suggest that applicants such as the Pollards were effectively told that they would receive leases when surveys were completed. I infer that the survey plan identifying Lot 13 was prepared as part of that process.

18 Minutes of council meetings indicate a little more of the history of the application between late 1987 and 2002. There were three relevant council meetings, on 9 March 1988, 1 June 1988 and 13 July 1988. Minutes were kept of each meeting. Attached to each set of minutes was a document described as ‘Summary of Inwards Correspondence’, containing numerous "items" identified by number. The source of each item of correspondence was identified, as was its subject matter. The right-hand column was headed ‘Action Ordered’. Each summary was apparently used as part of the agenda for the meeting in question. The minutes identify the business discussed at the meeting, using the item numbers in the summary, and then record the decision in each case. In general, such decisions were also endorsed on the summary in the column headed ‘Action Ordered’. It seems likely that when each summary was drafted, that column was left blank, and that it was filled in after the meeting in question.

19 For the meeting held on 9 March 1988, Item 44 in the summary is ‘Form 1 Application for Land – Darryl and Elaine Pollard for approval - no objections.’ This might be thought to suggest that the application had been advertised in accordance with the requirements of the Land Holding Act. The minutes note, concerning Item 44, that the application was tabled and then record the following resolution:

‘That Land Application No 3 and 10 – 1986/87 by Allan and Mahalia Mathieson and Darryl and Elaine Pollard and No 36 – 87/88 by Desley Ann Thomas be approved and that Lands Clerk be requested to complete Forms 2 as soon as possible plus plans and onforward to Minister.’

This suggests that the council approved the Pollards’ application. Curiously, the item in the summary was endorsed ‘Tabled’, but the resolution was not noted. Item 12 in the summary for the meeting on 1 June 1988 was: ‘Land Application Form 1 – Desley Thomas and Darryl and Elaine Pollard for display’. The minutes state, concerning this item: ‘Okay. Project Officer to attend.’ The summary was accordingly endorsed. For the meeting held on 13 July 1988 Item 30 of the summary is ‘Form 1 Land Application – Elaine and Darryl Pollard for approval’. That item was adopted at the meeting, the word ‘Okay’ appearing opposite the item number in the minutes. The summary was similarly endorsed.

20 Although I was of a different view during the hearing of this matter, I now consider that at some time at, or after, the council meeting on 9 March 1988, some doubt must have arisen as to whether, in the case of the Pollards’ application and that of Ms Thomas, there had been appropriate notifications pursuant to para 6(1)(a) of the Land Holding Act. At the meeting on 1 June, council directed that appropriate steps be taken to rectify that position. The Pollards’ application was reconsidered at the meeting on 13 July 1988 and approved. It is of interest that at the meeting held on 13 July 1988 there was an expression of disquiet at the way in which Mr Burns was performing his duties, leading to a resolution that his appointment be terminated. It may be that the council’s dissatisfaction with him arose out of matters such as the apparent irregularity in the handling of the Pollards’ application. I infer that approval was given pursuant to the Land Holding Act, at latest, on 13 July 1988.

21 Following approval the council was obliged, pursuant to para 6(1)(b) of the Land Holding Act, to notify the applicant of such approval within seven days. Pursuant to para 6(1)(c) it was required to advise the relevant minister within 28 days. That minister was the minister administering the Land Holding Act. He or she was then to notify the minister administering the Land Act. It seems that the Pollards were not notified of the success of their application until 4 October 2002, although they had previously assumed such success. On the day of the hearing in this matter counsel for the council read an affidavit deposing to the fact that on 26 November 2007 notice was given to the relevant minister pursuant to s 6(1)(c) of the Land Holding Act. There is no direct evidence of any earlier notification. However exhibit LYO4 to Mr Yeatman’s affidavit suggests that in 1989 the Department of Community Services and Ethnic Affairs held numerous outstanding approved applications for which leases had not been issued. On the other hand, Mr Murphy’s affidavit, filed on 22 October 2007, demonstrates that the State has been unable to locate any record of having received notice of the Pollards’ application or the council’s approval of it. Given that no contemporaneous notice was given to the Pollards, it may well be that no notice was given to the relevant minister.

22 At a later stage in these reasons, I will refer to the decision of the Privy Council in Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 and that of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. Both decisions address the effect of irregularities in the exercise of statutory power. However, in considering the consequences of any failure by the council to give notices pursuant to paras 6(1)(b) and (c), it is not necessary to have recourse to those decisions. In my view, the absence of notification is of no significance. Pursuant to subs 9(2) of the Land Holding Act, upon the council approving the Pollards’ application, they became entitled to the grant of a lease in perpetuity over Lot 13, and the Governor-in-Council was authorized to grant such a lease. Pursuant to subs 10(1) the title to Lot 13 thereby divested from the council, and the land became Crown land. However, pursuant to subs 10(3), the Crown could only lease it in perpetuity to the Pollards. Nothing in the Land Holding Act supports the proposition that the rights conferred by subs 9(2) were liable to divesture in the event of non-compliance by the council with its obligations pursuant to paras 6(1)(b) and (c).

23 In the absence of any opposition, it would seem to follow that the Pollards’ claim should be recognized by appropriate declaratory relief. However I should say something more about the irregularities in the application. The first irregularity is the reference in the application to the three children, apparently as applicants. None of them was then entitled to apply for a lease. However, in a sense, the children had an interest in the application. The lease was to be in perpetuity. There was a prospect that they would take the benefit of it in due course. It may be that their inclusion merely reflected this perception on the part of the Pollards and Mr Burns. If so, such inclusion might be treated as mere surplusage. In any event Mr Pollard attended at the council office in order to complete the application with Mr Burns’ assistance. Mr Burns completed the application for him. The council accepted it and acted upon it as if it were an application on behalf of Mr and Mrs Pollard. In the absence of any party asserting invalidity, it would be curious if the Pollards’ application to the council, completed in accordance with the requirements of a council officer, and acted upon by the council, were to be treated, almost 20 years later, as being invalid. The three children in question have indicated that they do not wish to be heard in opposition to their parents’ application for declaratory relief.

24 The second irregularity is the fact that Mrs Pollard did not sign the application. Section 5 required that the relevant applicant make application to the council, and that the application be in, or to the effect of, the prescribed form. Regulation 4 provided that the forms set forth in the Schedule were to be used for the purposes for which they were applicable. Form 1 was the relevant form of application. It provided for signature by the ‘Declarant/s’. The Pollards’ Form 1 application, dated 1 April 1987, was subsequent to the 1986 letter from Mr and Mrs Pollard, asking that their application be treated as applying to Lot 13 rather than the land previously requested at Buddabadoo. As I have said Mr Pollard attended at the council office to regularize the application already made by him and Mrs Pollard, in effect, to satisfy the council’s requirements and those contained in the Regulations. Again, it would be a curious result if the application were to be treated as void, given that it was prepared by a council officer to meet the council’s understanding of the requirements of the Regulations.

25 In any event, although the form contemplated execution by more than one declarant, that does not exclude the possibility that it might be signed by an agent. Had Mr Pollard purported to sign on his own behalf and as agent for his wife, there could have been little difficulty. In light of the earlier letter of application, it was clear that he and Mrs Pollard were applying jointly for the lease. There is no reason to doubt that Mr Pollard was authorized to act on her behalf in connection with the application. Mr Burns must have so understood the position. Once again, the council has acted upon that basis.

26 In the course of the hearing, I referred counsel to the decision of the Judicial Committee of the Privy Council in Cudgen Rutile (supra), where their Lordships said, concerning the power of the State of Queensland to alienate Crown land:

‘As a starting point, their Lordships accept as fully established the proposition that, in Queensland, as in other states of the Commonwealth of Australia, the Crown cannot contract for the disposal of any interest in Crown lands unless under and in accordance with power to that effect conferred by statute. In Queensland the legal basis for this power, and for the limitations upon it, is to be found in the Constitution Act of 1867, of which section 30 provides for the making of laws regulating the sale, letting, disposal and occupation of the waste lands of the Crown, and s 40 vests the management and control of the waste lands of the Crown in the legislature.

Numerous pronouncements in the courts in Australia have given effect to this principle ... .

It follows as a logical consequence that when a statute, regulating the disposal of Crown lands, or of an interest in them, prescribes a mode of exercise of the statutory power, that mode must be followed and observed: and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down.’

27 No attempt has been made to distinguish this case upon the basis of any subsequent constitutional changes. My concern was that by parity of reasoning the only power to deal with land pursuant to the Land Holding Act would be by proceeding in accordance with the terms of that Act, and that both the council and the State were obliged to act on that basis. This would raise for consideration the question of whether or not any departure from that procedure, such as those to which I have referred, would invalidate the process leading to the issue of a lease. It was submitted that the decision in Cudgen should be limited in its application to the alienation of Crown land, strictly so described. It was submitted that Lot 13 is not Crown land. However I see no material distinction for present purposes. In any event, s 10 contemplated the relevant land becoming Crown land before the creation of any instrument of lease.

28 A more useful submission concerned the applicability of the decision of the High Court in Project Blue Sky (supra) at [93] where the majority (McHugh, Gummow, Kirby and Hayne JJ) said, concerning the question of failure to comply with a statutory requirement regulating the exercise of a statutory power:

‘A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales ... . In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" ... .’

29 At [97] their Honours continued:

‘Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act ... .’

30 The Land Holding Act required that there be public notification of any application for the exercise of the council’s power, and that any interested party should be heard in opposition. Observance of those requirements may well have been a condition precedent to the exercise of the power. However I see no reason why mere requirements as to the form of the application should be so treated. In any event, at the time of the application, s 40 of the Acts Interpretation Act [1954-1962] (Qld) provided:

‘Variations of forms. Whenever, by any Act or by any instrument made thereunder, forms are prescribed, it shall be deemed to be provided, unless the contrary intention appears and provided that deviations from the prescribed forms occurring therein are not calculated to mislead, that forms to the like effect shall be sufficient.’

31 The application was clearly made by both Mr and Mrs Pollard. The absence of Mrs Pollard’s signature could not, in any sense, mislead a person reading it. As to the inclusion of the children, the assertion that each had attained the age of 18 years was patently false, given the inclusion of their birthdays. In my view there was sufficient compliance with the statutory and regulatory requirements as to the form of the application.

32 Another matter of potential concern is the fact that the Pollards did not live at the property between 1994 and 2002. Section 18 of the Land Holding Act provided that the lessee must be a qualified person as defined in s 4. Such a person had to be, in the opinion of the council, a resident of the relevant community. Section 22 provided for forfeiture of the lease if the lessee ceased to be a qualified person or if the premises were not occupied ‘by or on account of’ the lessee for a continuous period of two years. The Pollards’ absence from 1994 to 2002 was quite lengthy. One might have expected that questions would have arisen concerning the possible operation of s 18 or s 22. However it was for the council to act as it thought appropriate. It is not necessary to take this matter any further.

33 I propose the following declarations:

A. That, at latest, on 13 July 1988 Yarrabah Shire Council (then known as Yarrabah Aboriginal Council) determined, pursuant to s 6(1) of the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld), to approve an application by Darryl Ralph Pollard and Elaine Marina Pollard for a lease of land described as Lot 13 on RC 159893, a copy of which is annexed hereto, being part of Lot 207 on plan NR 7310 in the parish of Trinity, county of Nares;

B. That upon such determination the said Darryl Ralph Pollard and Elaine Marina Pollard became entitled to a lease in perpetuity of the said land;

C. That upon such determination the title to the said land was divested from the Yarrabah Shire Council, such land becoming Crown land within the meaning of the Land Act 1962-1985 (Qld) and as subsequently amended; and

D. That the said Darryl Ralph Pollard and Elaine Marina Pollard are accordingly entitled to the grant of a lease of such land in perpetuity.

34 I will hear further submissions as to orders and as to any other outstanding matters.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 25 January 2008

Counsel for the Applicant:	Ms S Phillips
Solicitor for the Applicant:	North Queensland Land Council
Counsel for the First Respondent:	Ms H Bowskill
Solicitor for the First Respondent:	Crown Law
Solicitor for the Second, Third, Sixth and Seventh Respondents:	MacDonnells Law
Counsel for the Fourth Respondent:	Mr R Lilley SC Mr N Andreatidis
Solicitor for the Fourth Respondent:	Bottoms English
Counsel for the Fifth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents:	Mr S Keim SC Ms N Kidson
Solicitor for the Fifth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth and Fifteenth Respondents:	D & G Lawyers
Solicitor for the Ninth Respondents:	Gore & Associates
Solicitor for the Seventeenth Respondent:	Marino Moller Lawyers
Date of Hearing:	28 November 2007
Date of Judgment:	25 January 2008