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Smith & Ors v Marapikurrinya Pty Ltd & Ors [2010] FMCA 5 (29 January 2010)

Last Updated: 16 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH & ORS v MARAPIKURRINYA PTY LTD & ORS

PRACTICE AND PROCEDURE – Application to summarily dismiss proceedings – principles.

PRACTICE AND PROCEDURE – Application to transfer proceedings to the Federal Court – principles.

TRADE PRACTICES – Alleged misleading and deceptive conduct in relation to alleged representations in native title and aboriginal heritage matters – whether allegations made “in trade or commerce” – injunction sought to restrain respondents in respect of native title and aboriginal heritage matters.

WORDS AND PHRASES – “in trade or commerce”.


Aboriginal Legal Service of Western Australia v Lawrence (No 2) (2008) 228 FLR 318; [2008] WASCA 254
ACCC v Z-Tek Computer Pty Ltd Ltd (1997) 78 FCR 197
Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; [2006] FCA 1352
Buckingham v KSN Engineering Pty Ltd (2008) 177 IR 427; [2008] FMCA 546
Concrete Construction (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594
Crowe v Comcare Australia (No. 1) [2002] FMCA 146
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Deputy Commissioner of Taxation v Cumins [2007] FMCA 1841
Fernando v Minister for Immigration [2007] FMCA 724
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545; [1999] FCA 357
Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437; (1992) 37 FCR 526
Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950
Mabo and Others v The State of Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1
March v Stramare [1991] HCA 12; (1991) 171 CLR 506
MG Distributions Pty Ltd & Ors v Khan & Anor (2006) 230 ALR 352; [2006] FMCA 666
Moran v Minister of Land & Water Conservation for NSW [1999] FCA 1637
Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559
Re Ku-ring-gai Co-operative Building Society (No.12) Ltd [1978] FCA 50; (1978) 36 FLR 134
Ricochet Pty Ltd & Ors v Equity Trustees Executors and Agency Company Ltd [1993] FCA 99; (1993) 41 FCR 229
Scott v Beneficial Finance Corp Ltd [1993] FCA 633
Sibic v Salisbury [2008] FMCA 715
Skipworth v State of Western Australia & Ors (No. 2) (2008) 218 FLR 16; [2008] FMCA 544
Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378; [2008] FCA 702
Taylor v CGU Insurance Limited (2005) 193 FLR 120; [2005] FMCA 1073
Van Efferen v CMA Corporation Limited (2008) 173 IR 456; [2008] FMCA 875
W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530
W & W [2003] FMCAfam 150
Welton v Missouri [1875] USSC 187; 91 US 275 (1875)
Western Australia v Ward & Ors (2000) 99 FCR 316; [2000] FCA 191
Windros v Transact Communications Pty Ltd [2002] FMCA 145

Allsop J, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Review 25, www.fedcourt.gov.au/pdfsrtfs_a/admiralty_papersandpublications16.pdf
Allsop J, “An Introduction to the Jurisdiction of the Federal Court of Australia”, www.fedcourt.gov.au\aboutct\judges_papers\speeches_allsop.html (October 2007)

First Applicant:
GENE SMITH

Second Applicant:
MARY ATTWOOD

Third Applicant:
GEORGE DANN

Fourth Applicant:
SHIRLEY LOCKYER

Fifth Applicant:
PATRICIA MASON

Sixth Applicant:
ROBERT DANN

First Respondent:
MARAPIKURRINYA PTY LTD

Second Respondent:
DIANA ROBINSON

Third Respondent:
KERRY ROBINSON

File Number:
PEG 10 of 2009

Judgment of:
Lucev FM

Hearing date:
25 March 2009

Date of Last Submission:
25 March 2009

Delivered at:
Perth

Delivered on:
29 January 2010

REPRESENTATION

Counsel for the Applicants:
Mr A Rumsley

Solicitors for the Applicants:
Alan Rumsley

Counsel for the Respondents:
Mr P Sheiner

Solicitors for the Respondents:
Gadens Lawyers

ORDERS

(1) That the respondents’ application for summary dismissal of the proceedings be dismissed.
(2) That the respondents’ application for transfer of the proceedings be upheld.
(3) Proceedings in matter number PEG 10 of 2009 be transferred to the Federal Court of Australia.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 10 of 2009

GENE SMITH

First Applicant


MARY ATTWOOD

Second Applicant


GEORGE DANN

Third Applicant


SHIRLEY LOCKYER

Fourth Applicant


PATRICIA MASON

Fifth Applicant


ROBERT DANN

Sixth Applicant


And


MARAPIKURRINYA PTY LTD

First Respondent


DIANA ROBINSON

Second Respondent


KERRY ROBINSON

Third Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicants claim interests in respect of the land and waters in and around Port Hedland, under the common law, as native title holders.[1] The applicants’ common law native title interests[2] are recognised and protected under s.223 of the Native Title Act 1993 (Cth).[3]
  2. The NT Act provides for applications for determination of rights to native title and compensation rights[4] to the Federal Court.[5] It provides additional rights for registered native title claimants, including the right to enter into indigenous land use agreements,[6] a right of negotiation[7] and a right of access to carry out traditional activities.[8] The enjoyment of these rights does not require a determination that the registered native title claimants hold native title.
  3. The applicants also claim rights in relation to sites[9] and objects[10] of significance to them as people of Aboriginal descent under the AH Act.
  4. The applicants say that they have rights sufficient to ground their claims in this action that do not require a determination by the Federal Court in a native title action.
  5. The gist of the applicants claim is that the first respondent, through the second and third respondents:
    1. has made statements that are misleading or deceptive or likely to mislead or deceive; and
    2. in making the statements have acted without the consent, authority or knowledge of the applicants.
  6. In summary, the respondents say that:
    1. the applicants allege that in general terms, Fortescue Minerals Group[11] and BHP Billiton Iron Ore[12] have entered into agreements with the first respondent on the basis of false or misleading representations as to the authority of the first respondent, which agreements were not authorised by “Kariyarra People”;
    2. the uncontradicted evidence is that the only agreement between the first respondent and BHPBIO (and similarly in respect of FMG) was a heritage survey agreement, which agreement according to its terms was expressly authorised by the legal representative of the Kariyarra Native Title Claim Group;[13]
    1. the uncontradicted evidence of the respondents is and will be that they have no agreement with FMG, rather they have simply carried out some heritage surveys pursuant to authorisation from the Kariyarra Heritage sub-committee under the terms of a land access agreement between the KNTG and FMG.

Application

  1. The applicants filed an application on 29 January 2009 pursuant to ss.52, 80, 82 and 87 of the Trade Practices Act 1974 (Cth)[14] and s.18 of the Federal Magistrates Act 1999 (Cth).[15]
  2. The applicants’ statement of claim states that the applicants are members of the aboriginal race of Australia and the biological descendants of the Kariyarra People at the time of acquisition of sovereignty, who they claim to be the traditional inhabitants of Port Hedland and the surrounding land and waters.
  3. The applicants claim that the respondents have falsely represented[16] that the first respondent is:
  4. The applicants seek:
    1. an injunction under s.80 of the TP Act restraining the respondents from representing that they are authorised to negotiate or act on behalf of the applicants or the Kariyarra People, in a binding matter, under the NT Act, the AH Act, or any other Commonwealth or State Act;
    2. alternatively, an injunction under s.80 of the TP Act restraining the respondents from engaging in conduct in breach of s.52 of the TP Act;
    1. damages under s.82, alternatively s.87 , of the TP Act;
    1. further, and in the alternative, equivalent relief under the Fair Trading Act 1987 (WA).[18]

Marapikurrinya’s Application in a Case

  1. On 9 March 2009 Marapikurrinya filed an application in the case seeking orders that:

Application to summarily dismiss the proceedings

Relevant Legal Principles

  1. The Court has power to dismiss all or part of the proceedings pursuant to s.17A of the FM Act. That section relevantly provides that:
  2. Section 17A of the FM Act appears to lower the threshold whereby the Court may be satisfied that it is appropriate to dismiss a claim though that does not detract from the well settled principles in relation to summary dismissal.[19] The Court should however be very cautious in dismissing an applicant’s proceedings summarily and should only do so when it is clear, beyond doubt, that there is no reasonable cause of action.[20]
  3. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd[21] the Federal Court stated that:

and:

“...Where there is a real issue of fact to be decided...and, possibly, where there is a real issue of law... it is obviously appropriate that the matter goes to trial.”[24]
  1. In Dandaven v Harbeth Holdings Pty Ltd[25] the Federal Court summarised the relevant principles applicable to a summary dismissal application as follows:
  2. In Balding v Ten Talents Pty Ltd[27] this Court agreed with the views of the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No 2)[28] where the Federal Court observed that s.31A of the FC Act “allows for ‘judgment’ or nothing”[29] and this Court agreed with that view as being applicable to summary dismissal applications before this Court,[30] and further observed that:
  3. It is important to note that the application is one to have the proceedings summarily dismissed, not to have the pleadings, or various parts of the pleadings, struck out.

Consideration of submissions

Biological descent - paragraphs 4.2 and 6

  1. Paragraph 4.2 claims that Smith and the other applicants were at all material times “biological descendants of the Kariyarra People at the time of acquisition of sovereignty.” Smith, for example, sets out details in her affidavit, including:
    1. her descent from her grandmother Mary Todd (Yinbung);
    2. that she was born and has lived in Kariyarra country all her life;
    1. her being taught traditional customs by her mother and uncles, together with her sisters and brothers who are the other applicants; and
    1. that she is a registered claimant in the Kariyarra People’s Native Title Determination application in the Federal Court.[32]
  2. The claim that the applicants are biological descendants of “Kariyarra people” is denied by the respondents. The second respondent, Diana Robinson, says that to be a Kariyarra person there must be not only descent, but also:
    1. practice and knowledge of culture, heritage, law and customs; and
    2. participation in, and association with, the Kariyarra community,

neither of which apply to the applicants.[33]

  1. The respondents say that this gives rise to a genuine factual dispute which goes to the standing of the applicants to bring the current proceedings.
  2. There is no dispute that biological descent is a requirement in native title claims.[34]
  3. This issue, of whether or not the applicants are Kariyarra People lies at the heart of the issue as to whether the alleged representations are false, and misleading or deceptive, or likely to be so.
  4. Paragraph 6 reads as follows:
  5. In relation to the evidence of the respondents’ biological descent the applicants rely on:
    1. the respondents’ own evidence that the affidavit of Ethel Angel (Yuline) is correct in that their father’s mother was not a Kariyarra Person and their connection to the Kariyarra People is through their father’s father;[35] and
    2. the Tindale notes, which, on the applicants’ view, confirm that the second and third respondents’ father was the son of an Afghan.[36]
  6. The respondents say that:
    1. this allegation is directly contradicted by the affidavits of the first and second respondents and the Tindale genealogy; and
    2. the only evidence that the applicants have put forward to support the allegation is inadmissible hearsay from persons (Mark Chambers and Angel Yuline) who, even if the hearsay evidence is accepted as to the truth of what was said, have at best now given inconsistent statements.
  7. The respondents therefore say that:
    1. there is in truth no genuine factual dispute on this issue and the applicants do not have a reasonable prospect of success in establishing that the second and third respondents are not Kariyarra People; and
    2. further, the second and third respondents are members of the Kariyarra Native Title Claim in the Federal Court and the third respondent is a named applicant.
  8. In any event, the respondents argue that even if the Court finds there is a genuine factual issue, this issue is a matter for determination in the Native Title Claim.
  9. Having regard to:
    1. the approach to be adopted in this Court with respect to the receipt of evidence at this and later stages of the proceedings, and the fact that further evidence might yet be admissible to prove the claim made;[37]
    2. the approach to be adopted by this Court in relation to a strike-out application, that is, that a cautious approach be adopted;
    1. the fact that the respondents claim that the applicants are not Kariyarra People by biological descent gives rise to a genuine factual dispute concerning the applicants’ biological descent;
    1. the fact that there is some support for the assertion that the second and third respondents are not biological descendants of the Kariyarra People at the time of acquisition of sovereignty, even if at this stage it is hearsay evidence accepted as to the truth of what was said, and accepting that there may be some inconsistencies between the relevant hearsay statements; and
    2. the complexities of proving biological descent in native title claims,

it does not seem appropriate to the Court to find at this stage that the claims made by the applicants in paragraphs 4.2 and 6 are unsupportable. There is manifestly a factual dispute in relation to a live issue, biological descent, which goes to whether or not relevant representations are, or might be, false, and which cannot therefore, on that basis, be said to lead to a conclusion that the applicants’ claims have no reasonable prospect of success.

  1. The Court notes however that in relation to this factual issue it is a matter which ultimately may require determination by the Federal Court in relation to the Native Title Claim. As such, it is a matter relevant to the respondents’ application to transfer these proceedings to the Federal Court.

Paragraph 5

  1. Paragraph 5 reads as follows:
  2. There is no factual dispute as to the content of the paragraph 5.
  3. The respondents submit that paragraph 5 goes to one of the issues to be determined in the Kariyarra Native Title Claim in the Federal Court referred to in paragraph 6 of the Statement of Claim, dealt with above.
  4. Paragraph 5 is a central factual plea about which there is no dispute, and which forms an essential part of the factual matrix of the applicants’ claims. There is nothing in its content which might be said to lead to a conclusion that the applicants’ claims have no reasonable prospect of success.
  5. Paragraph 5 does however highlight the interconnectedness between this matter and the Kariyarra Native Title Claim in the Federal Court, and for that reason is relevant to a consideration of the respondents’ application for the proceedings to be transferred to the Federal Court.

Paragraphs 7.1.1, 7.1.2, 7.1.3 and 7.1.4

  1. Paragraph 7 of the Statement of Claim relevantly provides as follows:
  2. The making of the representations is denied by the respondents, who argue that there is no evidence put forward to support the allegation that the representations in paragraphs 7.1.1, 7.1.2, 7.1.3 and 7.1.4 were ever made orally or in writing. The respondents argue that the applicants’ allegation is directly contradicted by the agreement with BHPBIO and the letters from FMG which make it clear that it was understood by FMG and BHPBIO that the first respondent was simply authorised to carry out heritage surveys by the legal representatives for the KNTG.
  3. In relation to the representations generally the applicants say that:
    1. the respondents have identified the first respondent as a corporate entity of the Kariyarra People,[38] and argue that this was a cause of BHPBIO purporting to enter into an agreement with the Kariyarra People through the first respondent;[39]
    2. the first respondent entered into an agreement with BHPBIO under which the first respondent authorised Gavin Jackson Pty Ltd to conduct an archaeological survey and Anthropos Australis to conduct an ethnographic survey and cultural impact survey;[40]
    1. the Environmental Referral confirms that the respondents made submissions to BHPBIO alleging that they were representatives of the Kariyarra People, including the first respondent as part of the KNTG;[41] and
    1. the Environmental Referral indicates that BHPBIO relied upon agreement with the first respondent, and the status of the first respondent as a corporate entity of the Kariyarra People, the two surveys and submissions made by the first respondent, as the basis for a conclusion that the concerns raised by the Kariyarra People had been considered by BHPBIO.[42]
  4. The applicants say that a person who wishes to rely on a decision by a representative or other collective body needs to prove that:
    1. the body exists;
    2. the existence of the body is recognised under customary law by members of the relevant group;
    1. the nature and extent of the body’s authority to make decisions by members of the group; and
    1. the body has authorised the making of the application.[43]
  5. The applicants say that the respondents allege they were authorised to act by a working group of the KNTG.[44] The applicants say that the working group was a convention followed by the Pilbara Native Title Service,[45] and that whilst the second and third respondents were members of the working group,[46] it was not a working group authorised by any of the applicants,[47] (who claim to be Kariyarra People) or recognised under customary law.[48] The applicants argue that authorisation of actions taken in the Kariyarra Native Title Claim must be authorised by a process of decision making under traditional laws and customs of the claim group.[49]
  6. The applicants say that the respondents have failed to meet the test in Moran, and on that basis alone, there is an issue ripe for hearing.
  7. Having regard to:
    1. the contents of the Environmental Report, from which it can be inferred that the representations might have been made;
    2. the fact that further evidence might yet be admissible to prove the claims made; and
    1. the fact that there is a clear factual dispute about the authority of the KNTG and the PNTS,

there is a factual dispute in relation to a live issue, which goes to whether or not relevant representations were made and are, or might be, false, and on that basis, the applicants’ claims cannot be said to have no reasonable prospect of success.

Paragraphs 7.1.7 and 7.1.8

  1. Paragraphs 7.1.7 and 7.1.8 provide as follows:
  2. The respondents argue that:
    1. paragraph 7.1.7 misconstrues the effect of s.18 of the AH Act which allows proponents to apply for ministerial approval to disturb sites. No authority or right resides in Aboriginal people or traditional owners to authorise such applications; and
    2. paragraph 7.1.8 (and paragraph 10.1.7) appears to be a collateral attack upon the standing of the applicants to seek injunctive relief in the Supreme Court of Western Australia in separate proceedings, and is for this reason an abuse of process.
  3. It is not necessary to determine, or even deal with, the precise scope of s.18 of the AH Act at this stage. That is because what is alleged is that certain representations have been made which were allegedly false and misleading. The focus of the alleged representations is that the first respondent was “authorised” to do the things alleged, when in fact it was not so “authorised”. If that allegation were to be made out by the applicants at hearing it would then be, on the respondents’ present submissions, a representation which “misconstrues” the effect of s.18 of the AH Act, and which might therefore arguably be misleading. And that appears to be the applicants’ case. The same rationale applies to the alleged representation in relation to proceedings in the Supreme Court of Western Australia. Furthermore, there is nothing in the Statement of Claim which indicates that the alleged representation relates to relates to particular proceedings in the Supreme Court of Western Australia, and therefore, without more, no claim of abuse of process by way of collateral attack on particular proceedings can be sustained.
  4. For the above reasons there is nothing in paragraphs 7.1.7 and 7.1.8 of the Statement of Claim which indicates that the applicants’ claims have no reasonable prospect of success.

Paragraphs 7.2.3 and 7.2.4 and particulars 7.3.2 and 7.3.3

  1. Paragraph 7.2, together with particulars contained in paragraph 7.3 provides as follows:
  2. The respondents argue that:
    1. the representations are alleged to have been made in the context of heritage surveys conducted by Anthropos Australis and Gavin Jackson Pty Ltd;
    2. if made, these representations were made in the context of an assessment of the archaeological and ethnographic significance of sites; and
    1. it is not reasonably arguable that the alleged representations could be regarded as representations in trade or commerce made on behalf of the first respondent for the purpose of either the TP Act or FT Act.
  3. In the course of submissions Counsel for the respondents conceded that the first respondent was set up to conduct heritage surveys, and that it was a business:
    1. involved in aboriginal economic development; and
    2. intended to operate at a profit.[50]
  4. The applicants say that:
    1. the first respondent has requested funding assistance to develop its business capacity,[51] including in relation to the lease of an office for two years, office equipment and two 4 wheel drive vehicles,[52] applied a minimum level of business development assistance and sought to identify and pursue further contracting opportunities,[53] contracted to charge fees for carrying out surveys;[54] and
    2. the above conduct is either preparatory to or part of providing services for reward under a number of agreements, which have a sufficient commercial character to constitute conduct in trade or commerce.
  5. Under s.4(1) of the TP Act “trade or commerce” is defined as including “trade or commerce within Australia”. The term “trade or commerce” is not a term of art, but a term of common knowledge and wide import, covering intercourse for the purposes of trade, including the sale of commodities.[55]
  6. In Concrete Construction (NSW) Pty Ltd v Nelson[56] a construction worker alleged that a foreman’s untrue statement that air conditioning shaft entry grates were secured by certain bolts where one of the grates gave way and caused the construction worker to fall to the bottom of the shaft and to suffer serious injuries was conduct which was misleading or deceptive or liable to mislead or deceive contrary to s.52 of the TP Act. The High Court of Australia held that the alleged conduct was not in trade or commerce. In so doing the High Court observed that:
  7. The High Court acknowledged that:
  8. In determining whether activities are “in trade or commerce” consideration has to be given to a variety of factors including:
    1. whether or not trading is a predominant activity;
    2. whether trading is a substantial and not merely peripheral activity;
    1. that trading extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services;
    1. that the making of a profit is not an essential prerequisite to trade, but that it is a usual concomitant;
    2. that the ends a corporation seeks to serve by trading are irrelevant to whether or not it actually trades, and just because trading activities are conducted in the public interest or for a public purpose will not necessarily exclude the categorisation of those activities as “trade”;
    3. that questions of fact and degree are involved in categorising activities as “trade”; and
    4. that the commercial nature of an activity is an element in deciding whether the activity is in “trade”.[59]
  9. The nature of the first respondent’s business includes the provision of services for a fee under contract with a view to the making of profit. It is therefore arguable that the representations alleged to have been made by the first respondent have a commercial character and were made “in trade or commerce”. Whether that is so is a matter of “fact and degree” and therefore a matter for determination at hearing. There is nothing in this aspect of the respondents’ claims which suggests that the applicants’ claims have no reasonable prospect of success.

Paragraph 7.3.1

  1. Paragraph 7.3 provides as follows:
  2. The respondents argue that this particular cannot be sustained having regard to the terms of the agreement.
  3. The applicants say that there is evidence that the representations were made as alleged, and point to the Environmental Referral which sets out, amongst other things, the following:
    1. that BHPBIO entered into the 3 December 2007 Heritage Agreement “through” the first respondent for the purpose of conducting ethnographic and archaeological surveys;[60]
    2. that the survey relates to a dredging proposal that falls within the scope of the Native Title Claim, and that the 3 December 2007 Heritage Agreement was “with the Kariyarra”;[61]
    1. that “concerns raised by the Kariyarra have been considered by BHPBIO in its management of environmental impacts as they affect heritage matters”;[62] and
    1. that there had been “several consultation meetings with representatives of the Kariyarra”.[63]
  4. Given the involvement of:
    1. the second and third respondents with the first respondent; and
    2. the first respondent in the entering into of the 3 December 2007 Heritage Agreement,

taken in conjunction with the matters set out in the preceding paragraph, there is sufficient evidence to indicate that the applicants can sustain this particular. Consequently, the respondents’ objection to it cannot be sustained.

Paragraphs 8.1 and 9

  1. Paragraphs 8.1 and 9 of the Statement of Claim provide as follows:
  2. The respondents say that this allegation is directly contradicted by the terms of the only agreement the first respondent has with BHPBIO, and that there is therefore no basis in fact or law for the applicants to assert that BHPBIO has acted in reliance on representations made having regard to the written agreement.
  3. Having regard to the material summarised, extracted and set out above from the Environmental Referral[64] (upon which the applicants rely) the allegations made in paragraphs 8.1 and 9 are arguable matters on factually disputed issues, and on that basis, the applicants’ claims cannot be said to have no reasonable prospect of success.

Paragraph 8.2 and 9

  1. Paragraphs 8.2 and 9 of the Statement of Claim provide as follows:
  2. The respondents argue that paragraphs 8.2 and 9 misconstrue the operation of s.18 of the AH Act which provides proponents with a right to apply to the relevant State Minister to destroy sites, and that it is impossible or highly improbable for such an application to be made on the representations alleged and there is no evidence to support the reliance pleaded.
  3. For reasons set out above, issues related to s.18 of the AH Act do not arise in the manner contended for by the respondents, but rather in relation to whether there was reliance on representations allegedly made that the first respondent was “authorised” to make such applications, or possibly to represent the Kariyarra people in relation to negotiations relating to the making of such applications.[65] In relation to those issues there is, in the Environmental Referral under the heading “Section 18 Consultation Process”, reference to the “several consultation meetings” referred to above,[66] and that “[d]uring these meetings BHPBIO project staff informed representatives of the Kariyarra about details of the proposed development, ... as they affect heritage matters”,[67] following which an application was lodged for Ministerial approval to conduct the works notwithstanding possible impact on potential ethnographic and archaeological sites.[68] Having regard to the material referred to in the Environmental Referral (upon which the applicants rely) the allegations made in paragraphs 8.2 and 9 may be arguable matters on factually disputed issues. On that basis, the applicants’ claims cannot be said to have no reasonable prospect of success.

Paragraph 8.3 and 9

  1. Paragraph 8.3 of the Statement of Claim provides as follows:
  2. Paragraph 9 of the Statement of Claim is set out above.[69]
  3. The respondents argue that there is no evidence:
    1. of any agreement with FMG as alleged; and/or
    2. that the work conducted by the first respondent was not communicated to the KNTG,

but rather that it was in fact expressly authorised by PNTS and the KNTG.

  1. The applicants argue that there is evidence in the respondents’ own evidence of, for example, a land use agreement entered into with FMG (and others) in October 2005, by, amongst others, the third respondent, purportedly “for and on behalf of all Kariyarra People”,[70] but of which the applicants appear to know nothing.[71] With respect to any alleged authorisation by PNTS or KNTG the applicants repeat their earlier submissions on the necessary requirements for proper authorisation.[72]
  2. There is evidence of a land use agreement entered into with FMG, and having regard to the fact that the applicants, who have an arguable claim in these proceedings to be Kariyarra People, contend that they know nothing of the representation apparently made by the third respondent (amongst others) that the that agreement was being entered into “for and on behalf of all Kariyarra People” the allegations made in paragraphs 8.3 and 9 are arguable matters on factually disputed issues, and on that basis, the applicants’ claims of later agreements entered into cannot be said to have no reasonable prospect of success.

Paragraph 10

  1. Paragraph 10 of the Statement of Claim provides as follows:
  2. The respondents argue that in relation to:
    1. paragraphs 10.1.1, 10.1.2, 10.1.3 and 10.1.4 there is no evidence put forward that such representations were ever made, or that there is any intention to make such representations in the future;
    2. paragraph 10.1.5, in the event, which is denied, that such representation was made, there was no evidence it was false, and indeed the uncontradicted evidence is that it was true having regard to the BHPBIO Agreement and the FMG correspondence;
    1. paragraph 10.1.6 that it misrepresents the operation of the AH Act; and
    1. paragraph 10.1.7 the issue of whether the representation is false requires this Court to undertake an enquiry as to the standing of the respondents in respect of the Supreme Court of Western Australia and is for this reason an abuse of process.
  3. For reasons variously set out above none of the respondents’ contentions concerning paragraph 10 are made out, and consequently nothing in paragraph 10 establishes that the applicants’ claims have no reasonable prospect of success.

Paragraph 13

  1. Paragraph 13 of the Statement of Claim provides as follows:
  2. The respondents submit that the applicants have failed to plead reliance, causation or loss or damage.
  3. In this case the applicants do not plead reliance on the alleged misrepresentations. Nor do they plead that they were misled. A plea of causation of loss or damage is required in a s.52 TP Act claim where loss or damages are sought under ss.82 and 87 of the TP Act.[73] The applicants are required to plead the circumstances which entitle them to recover losses or be awarded damages, namely reliance on representation, the loss or damage and causation.[74] A claim for loss or damages requires a demonstration that there has been an inducement to do something or refrain from doing something, which gives rise to damage, attributed to the conduct complained of.[75] While there may be circumstances in which a third party who does not rely on the misrepresentations could conceivably suffer loss or damage,[76] the applicants have not put forward any:
    1. substantiated plea of causation, loss or damage, but rather an unsubstantiated plea specifying neither causation nor any head of loss or damage; or
    2. evidence of loss or damage to all or any of the applicants,

and there is therefore nothing to suggest that there is a real issue to be tried in this regard. Whilst it is open to the Court to establish causation by reference to the effect which a misleading representation is taken to have had,[77] there is no plea or evidence sufficient to allow the Court to do so in this case, and were the Court to do so it would be no more than uninformed speculation. Liability does not attach because of the mere possibility that a misrepresentation might have induced a course of action.[78] In this case there is no evidence, or even a hint of a suggestion, of any course of action which the applicants embarked upon, or restrained from embarking upon, by reason of the alleged misrepresentations.

  1. In the circumstances, there is no reasonable prospect of the applicants establishing loss or damage under ss.82 or 87 of the TP Act, or otherwise under the FT Act for the same reasons.

Prayer for Injunctive Relief

  1. The respondents argue that:
    1. the injunction sought under s.80 of the TP Act in the relief claimed in the application rests upon a premise not expressly pleaded in the Statement of Claim, namely that the applicants, alternatively the Kariyarra People, hold native title rights arising out of common law, under the NT Act, the AH Act or other Commonwealth or State Acts;
    2. as the Court will not grant injunctive relief on a hypothetical issue, in order to grant an injunction, the Court would need to be satisfied that the claimed statutory and common law rights exist;
    1. the applicants can therefore only obtain the relief sought if the Court has jurisdiction to make findings in relation to the existence or otherwise of native title rights and interest, and while jurisdiction could arguably be provided by s.18 of the FM Act, the effect of s.19 of the FM Act, given the proceedings already on foot in the Federal Court, mandates that such a proceeding must be instituted in the Federal Court;
    1. further, and in any event, the power of the Court to make declarations of right is limited to matters within its original jurisdiction;[79] and
    2. in relation to the prayer for injunctive relief generally the applicants have not established that there is a real case that the Court should visit sanctions upon the respondents given the lack of evidence that misleading representations were ever made, and the fact that the respondents disavow any intention of making such representations.
  2. The applicants argue that the injunctive relief sought is not limited to native title rights at common law or under the NT Act, but also includes rights under the AH Act, and other, unspecified, Commonwealth or state Acts. The applicants therefore argue that the Court has the capacity to grant an injunction, if not in relation to native title rights, then in relation to other rights.
  3. The Court is a court of statutory not inherent jurisdiction.[80]
  4. As a court of record and a court of law and equity, the Court has a full suite of available remedies including injunctions, orders for restitution, awards of equitable damages and declarations. Section 14 of the FM Act requires the Court to resolve all matters within jurisdiction in proceedings before the Court. Section 18 of the FM Act provides that the Court has associated jurisdiction. Thus, provided that the Court has federal jurisdiction in a matter, it can deal with and make orders with respect to all matters associated with the matter within federal jurisdiction.[81] If there is no matter within the primary jurisdiction associated jurisdiction under s.18 of the FM Act cannot be invoked.[82]
  5. Thus, the central question is whether this Court has power to grant an injunction in this matter within its federal statutory jurisdiction.
  6. The Court does not have jurisdiction to deal with native title issues arising from the application filed in the Federal Court on behalf of the Kariyarra People,[83] because the Federal Court has “jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.”[84]
  7. It seems reasonably clear that the Parliament’s intention was that only the Federal Court and the High Court hear and determine applications related to native title.
  8. In this case the injunction is sought under s.80 of the TP Act, which is a matter within the federal statutory jurisdiction of this Court.[85] Section 80 grants the Court power to grant injunctions:
    1. designed to prevent a repetition of the conduct for which relief is sought;
    2. where there is a sufficient nexus between the alleged or actual contravention and the injunction granted; and
    1. where the injunction to be granted is related to the case or controversy the subject of the proceeding.[86]
  9. In this case that jurisdiction could be exercised to cover alleged misrepresentations in relation to Aboriginal heritage matters, including misrepresentations in relation to matters under or associated with the AH Act, as it is the misrepresentations which are complained about, not the processes under the AH Act.[87]
  10. The question which then arises is whether such a matter would be an associated matter under the native title claim.
  11. Section 19 of the FM Act provides that:
  12. A matter related to an Aboriginal heritage matter will not necessarily be a matter associated with a native title matter, either per se or in relation to this application (but whether it is so or not in this application is a factual matter to be determined): that is because it would be possible to argue that the alleged misrepresentations with respect to Aboriginal heritage matters would not relate to or be associated in any way with a native title claim. As indicated above, that matter is arguable in this case.
  13. Therefore, the Court does arguably have jurisdiction to grant a form of injunctive relief in these proceedings, albeit in quite narrow form in relation to Aboriginal heritage matters. There is therefore a sufficient basis for the applicants to argue the matter, and for that reason the matter ought not be summarily dismissed, bearing in mind in particular the principles discussed above,[88] in relation to summary dismissal in this Court.

Conclusion – summary dismissal

  1. For the reasons expressed above, the Court concludes that the respondents’ application for summary dismissal of the application ought not be granted.

Application to transfer proceedings to the Federal Court

Relevant Legal Principles

  1. Section 39(3) of the FM Act provides that:
  2. Rule 8.02(4) of the FMCA Rules provides that:

Relevant proceedings in Federal Court

  1. The respondents submit that transfer to the Federal Court is appropriate as there is a related proceeding (the Native Title Claim) already on foot in the Federal Court, and in light of the mandate in s.19 of the FM Act.
  2. The applicants submit that:
    1. under the application this Court is not required to make a determination as to whether any of the parties are the holders of native title rights under the NT Act; and
    2. even if there are related proceedings in the Federal Court the making of an order to transfer proceedings is discretionary.[89]
  3. The applicants’ submission is correct in that this Court can probably seek to disentangle the native title matters from the Aboriginal heritage matters. However, that would likely be a convoluted process as the application for injunctive relief, has, at its core, disputed native title related issues, including a question as to who constitutes the Kariyarra People. For that reason it is a matter which:
    1. is an associated matter with the Native Title Claim in the Federal Court for the purposes of s.19 of the FM Act, and which ought not to have been commenced in this Court, but which can be transferred to the Federal Court;[90] and
    2. is within the exclusive jurisdiction of the Federal Court insofar as it relates to native title matters.

It is therefore a matter which ought to be dealt with by the Federal Court.

Resources to hear matter

  1. This Court may have adequate resources to hear and determine the matter. However, the Federal Court is better equipped, by reason of physical resources, to deal with matters with a native title component. This factor favours a transfer to the Federal Court.

Question of general importance

  1. The general principles in relation to whether a question of general importance arises are identified in Genovese v BGC Construction Pty Ltd.[91]
  2. In the Court’s view this matter:
    1. will involve issues associated with the proper construction and interaction of the NT Act and the AH Act; and
    2. by reason of (a), but also by reason of the issues associated with the determination of whether each of the applicants and respondents are Kariyarra People, involve particular issues of “some complexity”, with which this Court is, unlike the Federal Court in native title related matters, not used to dealing with.

This factor favours a transfer of the matter to the Federal Court.

Cost and convenience to the parties and availability of particular procedures

  1. Because of the Federal Court’s expertise in native title and related matters the matter is likely to be dealt with as expensively (or inexpensively) and with as much convenience (or inconvenience) to the parties both generally and in relation to the availability of particular procedures, whichever of the courts deals with the matter. This factor is neutral in evaluating a transfer.

Wishes of the parties

  1. The applicants wish to continue the proceedings in this Court. The respondents argue that a transfer to the Federal Court is appropriate. This factor is neutral in evaluating a transfer.

Interests of the administration of justice

  1. The interests in the administration of justice include the proper management of the matter before the Court.[92] For reasons otherwise set out above, this matter would be better managed, heard and determined in the Federal Court, and a transfer to that Court is appropriate.

Consideration – transfer

  1. A consideration of the totality of the factors discussed above leads the Court to conclude that the matter ought to be transferred to the Federal Court.

Conclusions and Orders

  1. The Court has concluded that:
    1. the respondents’ application for summary dismissal of the proceedings ought to be dismissed;
    2. the respondents’ application for transfer of the proceedings ought to be upheld; and
    1. proceedings in matter number PEG 10 of 2009 ought to be transferred to the Federal Court of Australia.
  2. There will be orders accordingly, and the Court will hear the parties as to costs.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate: S.Gough


Date: 29 January 2010

[1] Mabo and Others v The State of Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1 (“Mabo”).
[2] (“NT Act”).
[3] NT Act, s.10.
[4] NT Act, s.61.
[5] NT Act, s.81.
[6] NT Act, ss.24CD and 24DE.
[7] NT Act, s.25.
[8] NT Act, s.44A.
[9] Aboriginal Heritage Act 1972 (WA) (“AH Act”), s.5.
[10] AH Act, s.6.
[11] “FMG”. The Statement of Claim says “Minerals”, but it should be “Metals”.
[12] “BHP Billiton Ore”.
[13] “KNTG”.
[14] “TP Act”.
[15] “FM Act”.
[16] Statement of Claim, para.10.
[17] Statement of Claim, para.7.
[18] “FT Act”.
[19] MG Distribution Pty Ltd v Khan [2006] FMCA 666; (2006) 230 ALR 352 at 360-36 per McInnis FM; [2006] FMCA 666 at paras.37-39 per McInnis FM (“MG Distribution”).
[20] Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at 355 per Lander J; [2004] FCA 559 at para.75 per Lander J (“Rana”).
[21] (2006) 70 IPR 146; [2006] FCA 1352 (“Boston Commercial”).
[22] Section 31A(2)(b) of the Federal Court Act 1976 (Cth) (“FC Act”) is equivalent to s.17A of the FM Act.
[23] Boston Commercial IPR at 156 per Rares J; FCA at para.42 per Rares J.
[24] Boston Commercial IPR at 157 per Rares J; FCA at para.44 per Rares J.
[25] [2008] FCA 955 (“Dandaven”).
[26] Dandaven at para.6 per Gilmour J.
[27] (2007) 162 IR 17; [2007] FMCA 145 (“Balding”).
[28] [2006] FCA 1401 (“Fortron (No. 2)”).
[29] Fortron (No. 2) at para.21 per French J.
[30] Balding IR at 26 per Lucev FM; FMCA at para.32 per Lucev FM.
[31] Balding IR at 26 per Lucev FM; FMCA at para.32 per Lucev FM. See also Buckingham v KSN Engineering Pty Ltd [2008] FMCA 546; (2008) 177 IR 427 at 432-433 per Lucev FM; [2008] FMCA 546 at paras.15-21 per Lucev FM; Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702; (2008) 173 IR 378 at 387-388 per Gordon J; [2008] FCA 702 at paras.21-23 per Gordon J (“Iliff”).
[32] Affidavit of Gene Smith, sworn 12 March 2009, paras.3-7 (“Native Title Claim”).
[33] See Affidavit of Diana Robinson, sworn 23 March 2009, para.9.
[34] Mabo at 61 and 70 per Brennan J. The test is not a strict test of biological descent, but rather that of “an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs. A substantial degree of ancestral connection ... would be necessary”: Western Australia v Ward & Ors [2000] FCA 191; (2000) 99 FCR 316 at 378-379 per Beaumont and von Doussa JJ; [2000] FCA 191 at para.232 per Beaumont and von Doussa JJ.
[35] Affidavit of Diana Robinson, sworn 23 March 2009, para.13.
[36] Affidavit of Diana Robinson, sworn 23 March 2009, page 5.
[37] Iliff IR at 389 per Gordon J; FCA at para.27 per Gordon J (sufficient for respondent to have had opportunity to lead evidence to matter raised in applicant’s Outline of Submissions).
[38] Affidavit Alan Rumsley, sworn 16 March 2009 at page 11 referring to para.6.7.2 of the BHP Billiton Environmental Referral Document (“Environmental Referral”).
[39] Environmental Referral at paras.6.7.2 and 9.8.1.
[40] Environmental Referral at para.6.7.2.
[41] Environmental Referral at para.9.8.5.
[42] Environmental Referral at para.9.8.5.
[43] Moran v Minister of Land and Water Conservation for NSW [1999] FCA 1637 at para.34 per Wilcox J (“Moran”).
[44] Affidavit of Kerry Robinson, sworn 6 March 2009, paras.11 and 19.
[45] “PNTS”; Affidavit of Diana Robinson, sworn 23 March 2009, para.12.
[46] Affidavit of Kerry Robinson, sworn 6 March 2009, para.3.
[47] Affidavit of George Dann, sworn 12 March 2009, para.12; Affidavit of Gene Smith, sworn 12 March 2009, para.12; Affidavit of Shirley Lockyer, sworn 12 March 2009, para.11; Affidavit of Mary Attwood, sworn 12 March 2009, para.37; Affidavit of Robert Dann, sworn 12 March 2009, para.11 and Affidavit of Patricia Mason, sworn 13 March 2009, para.23.
[48] Affidavit of George Dann, sworn 12 March 2009, para.13; Affidavit of Gene Smith, sworn 12 March 2009, para.13; Affidavit of Shirley Lockyer, sworn 12 March 2009, para.12; Affidavit of Mary Attwood, sworn 12 March 2009, para.38; Affidavit of Robert Dann, sworn 12 March 2009, para.12; Affidavit of Partricia Mason, sworn 13 March 2009, para.24.
[49] NT Act, s.251B.
[50] Transcript at 3-4.
[51] Affidavit of Kerry Robinson at page 7.
[52] Affidavit of Kerry Robinson at page 15.
[53] Affidavit of Kerry Robinson at page 6.
[54] Affidavit of Kerry Robinson at pages 9 – 10.
[55] Welton v Missouri [1875] USSC 187; 91 US 275 (1875) at 280 per Field J; W & A McArthur Ltd v Queensland [1920] HCA 77; (1920) 28 CLR 530 at 545-550 per Knox CJ, Isaacs and Starke JJ; Re Ku-ring-gai Co-operative Building Society (No.12) Ltd [1978] FCA 50; (1978) 36 FLR 134 at 167 per Deane J (with whom Brennan J agreed: at 146).
[56] [1990] HCA 17; (1990) 169 CLR 594 (“Concrete Constructions”).
[57] Concrete Constructions at 603-604 per Mason CJ, Deane, Dawson and Gaudron JJ.
[58] Concrete Constructions at 604 per Mason CJ, Deane, Dawson and Gaudron JJ.
[59] This list of factors has been adapted from the elegant and succinct summary in Aboriginal Legal Service of Western Australia v Lawrence (No 2) [2008] WASCA 254; (2008) 228 FLR 318 at 336-337 per Steytler P; [2008] WASCA 254 at para.68 per Steytler P dealing with “trading” in the context of the phrase “trading corporation” in s.51(xx) of the Constitution.
[60] Environmental Referral at para.6.7.2.
[61] Environmental Referral at para.9.8.1.
[62] Environmental Referral at para.9.8.5.
[63] Environmental Referral at para.9.8.5.
[64] At para.57 above.
[65] At para.44 above.
[66] At para.57(d) above.
[67] Environmental Referral at para.9.8.5.
[68] Environmental Referral at para.9.8.5.
[69] At para.62 above.
[70] Affidavit of Monica Jo Franz, sworn 6 March 2009, Annexure MF1 at page 11 (of the Affidavit).
[71] Affidavit of Gene Smith, sworn 12 March 2009, para.8.
[72] At para.38 above.
[73] Scott v Beneficial Finance Corp Ltd [1993] FCA 633 (“Scott”).
[74] Scott at para.33 per Hill J.
[75] Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 at 50,378 per Lockhart J; March v Stramare (1991) 171 CLR 506.
[76] By inaccurate comparative advertising for example: Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526.
[77] Hanave Pty Ltd v LFOT Pty Ltd (1999) 43 IPR 545; [1999] FCA 357.
[78] Ricochet Pty Ltd & Ors v Equity Trustees Executors and Agency Company Ltd (1993) 41 FCR 229.
[79] FM Act, s.16.
[80] Skipworth v State of Western Australia & Ors (No. 2) [2008] FMCA 544; (2008) 218 FLR 16 at 24-27 per Lucev FM; [2008] FMCA 544 at paras.28-34 per Lucev FM (“Skipworth (No. 2)”).
[81] For cases concerning s.18 of the FM Act see: Crowe v Comcare Australia (No. 1) [2002] FMCA 146; Windros v Transact Communications Pty Ltd [2002] FMCA 145; W & W [2003] FMCAfam 150. Generally, see Justice Allsop, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Review 25, (an updated version is available on the Federal Court website at www.fedcourt.gov.au/pdfsrtfs_a/admiralty_papersandpublications16.pdf) and Justice Allsop “An Introduction to the Jurisdiction of the Federal Court of Australia”, www.fedcourt.gov.au\aboutct\judges_papers\speeches_allsop.html (October 2007).
[82] Taylor v CGU Insurance Limited (2005) 193 FLR 120; [2005] FMCA 1073; followed in Fernando v Minister for Immigration [2007] FMCA 724 at para.41 per Lucev FM.
[83] Affidavit of Monica Jo Franz, sworn 6 March 2009, Annexure MF4, being a claim on behalf of the Kariyarra People, including the first, second and third applicants and the second and third respondents.
[84] NT Act, s.81.
[85] TP Act, s.86(1) and (4).
[86] ACCC v Z-Tek Computer Pty Ltd Ltd (1997) 78 FCR 197 at 204-205 per Merkel J.
[87] As explained above: see para.44 above.
[88] See paras.12-17 above.
[89] Deputy Commissioner of Taxation v Cumins [2007] FMCA 1841 at para.19 per Lucev FM.
[90] FM Act, s.19(1) and (3).
[91] [2006] FMCA 1507 (“Genovese”), as applied in Van Efferen v CMA Corporation Limited (2008) 173 IR 456; [2008] FMCA 875.
[92] Genovese at para.28 per Lucev FM.

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