Court case

Jones v State of Qld [2000]

SUPREME COURT OF QUEENSLAND

CITATION: Jones v State of Queensland [2000] QSC 267

PARTIES: JOHN DALUNGDALEE JONES Representing the
descendants who are Inheritors of the Estates of MARY
ANN DALUNGDALEE ROONEY and LESLIE JAMES
WILLIAMS J.P. Representing the descendants who are
Inheritors of the Estates of JACKO MORRIS, these
Estates being held in Trust by the STATE OF
QUEENSLAND
(applicant)
v
The Chief Executive designated by the Community
Services (Aborigines) Act 1984 and The Minister for
Aboriginal and Torres Strait Islander Policy for the
STATE OF QUEENSLAND
(defendants)
FILE NO: 1694 of 1999
DIVISION: Trial
PROCEEDING: Application to strike out action and/or Statement of Claim.
Application for representative order.
ORIGINATING
COURT: Supreme Court of Queensland
DELIVERED ON: 11 July 2000
DELIVERED AT: Brisbane
HEARING DATE: 15 June 2000
JUDGE: Muir J
ORDER: (a) That the Statement of Claim be struck out
(b) That the application for a representative order be
adjourned to a date to be fixed
CATCHWORDS: PRACTICE – APPLICATION TO STRIKE OUT ACTION
AND/OR STATEMENT OF CLAIM whether pleading
expresses nature and extent of claim – whether claim is
clearly identifiable – whether all parties affected are joined –
whether alleged constructive trust arises out of matters
pleaded in set paragraphs of claim or their combination or
otherwise – r 149 UCPR infringed – Statement of Claim
lacking in clarity – deficiencies cannot be remedied via
particulars
PRACTICE – APPLICATION FOR REPRESENTATIVE
ORDER – no evidence of concurrence of all relevant persons
affected - whether cause of action shown in all persons on
whose behalf relief is sought
2
ABORIGINALS AND TORRES STRAIT ISLANDERS –
NATIVE TITLE – possessory title claimed - material facts
necessary to pleadings – whether possession continuous and
exclusive – whether land held by Crown as constructive
trustee
Powell v McFarlane (1979) 38 P & C R 452
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Mabo v State of Queensland [No 2] (1992) 175 CLR 1
Banque Commerciale SA En Liquidation v Akhil Holdings
Pty Ltd (1990) 169 CLR 279
General Steel Industries Inc v Commissioner for Railways
(NSW) (1964) 112 CLR 125
Davy v Garrett (1878) 7 Ch D 473
Truth About Motorways Pty Ltd v Macquarie Infrastructure
Investment Pty Ltd (1998) ATPR 41-633, contrasted
TPC v David Jones (Australia) Pty Ltd (1985) 7 SCR 109
H 1976 Nominees Pty Ltd v Galli and Apex Quarries Ltd
(1979) 30 ALR 181
The Succession Act 1981 (Qld)
Uniform Civil Procedure Rules, rr 149, 171
Community Services (Aborigines) Act 1984
Labourers’ Protection Act 1884
Torres Strait Islander’s Act 1939
COUNSEL: Mr J D Jones appearing in person on behalf of the plaintiffs
Mr G E Hiley QC with Ms Bowskill for the defendants
SOLICITORS: Mr J D Jones appearing in person on behalf of the plaintiffs
Mr C W Lohe, Acting Crown Solicitor for the defendants
[1] MUIR J: On 24 February 1999 the plaintiffs commenced an action in this court by
writ of summons against “The Chief Executive designated by the Community
Services (Aborigines) Act 1984 and The Minister for Aboriginal and Torres Strait
Islander Policy for the STATE OF QUEENSLAND”. The plaintiffs describe
themselves in the writ as follows:
“JOHN DALUNGDALEE JONES Representing the descendants
who are Inheritors of the Estates of MARY ANN DALUNGDALEE
ROONEY and LESLIE JAMES WILLIAMS J.P. Representing the
descendants who are Inheritors of the Estates of JACKO MORRIS,
these Estates being held in Trust by the STATE OF
QUEENSLAND.”
[2] The claims made in the writ are lengthy, but it is desirable that I set them out in full:
“CLAIMS FOR CONVEYANCE OF PROPERTY HELD IN
TRUST
(a) The Plaintiff's Claim that their request for conveyance of
property which is held in TRUST by the QUEENSLAND
3
GOVERNMENT, has not been met. The request was made
on the lst December 1998.
(b) The Plaintiff JOHN DALUNGDALEE JONES is the
legitimate bloodline descendant and inheritor of the
ESTATE of MARY ANN DALUNGDALEE ROONEY
(born about 1852).
(c) The Plaintiff JOHN DALUNGDALEE JONES is Chairman
of the DALUNGBARA LAND COUNCIL and Represents
all living descendants of the DALUNGBARA PEOPLE.
(d) The boundaries of the traditional Lands and Seas of the
DALUNGBARA the aboriginal people, are marked on
attached Map 'A'
(e) The Plaintiff LESLIE JAMES WILLIAMS J.P. is the
legitimate bloodline descendant and inheritor of the
ESTATE of JACKO MORRIS (born about 1830.
(f) The Plaintiff LESLIE JAMES WILLIAMS J.P. is Chairman
of the NGULUNGBARA LAND COUNCIL and
Represents all living descendants of the NGULUNGBARA
PEOPLE.
(g) The boundaries of the traditional Lands and Seas of the
NGULUNGBARA, the aboriginal people, are marked on
the attached Map ‘A’.
(h) The Lands and Seas of the DALUNGBARA and
NGULUNGBARA marked on Map ‘A’ are the ESTATES
inherited from their forebears.
(i) Since the Declaration by the HIGH COURT OF
AUSTRALIA on Murray Island, the Lands and Seas
occupied and possessed by the DALUNGBARA and the
NGULUNGBARA at the time of European incursion is now
recognised by the COMMON LAW OF AUSTRALIA as
the ESTATES.
(j) The Forebears of the DALUNGBARA and the
NGULUNGBARA were in occupation and possession of
their Lands and Seas at the time when the township of
Maryborough was surveyed and the first allotments sold in
1849.
(k) No licences to take timber in the Noosa district occurred
before 1865.
(l) The first Reserve on Fraser Island was the Sandy Cape
Light Station, which was built in 1869 by Jacob Rooney and
John Rooney, the Great Grand Father of the Plaintiff JOHN
DALUNGDALEE JONES. MARY ANN
DALUNGDALEE was tribally married to John Rooney.
This union was consumated (sic) in the Customary way by
exchange of gifts. As a result of he recognition of the
aboriginal Customs, there was no friction with the local
aborigines, relatives of MARY ANN DALUNGDALEE and
JACKO MORRIS who supplied considerable manual labour
for the construction of the Sandy Cape Light Station in 1870
4
and the Lady Elliot Light Station in 1875, both being built
on the traditional Lands of the NGULUNGBARA.
In 1864 the death of the timbergetter ‘Yankee’ Jack Piggot
occurred near Rooney Point as a result of an altercation
when Piggott tried to steal some NGULUNGBARA
women.
(m) The parents of MARY ANN DALUNGDALEE ROONEY
and JACKO MORRIS were on Fraser Island at the tine of a
major assault by 2 sections(24) of Native Mounted Police
(recruited from other districts) on aboriginal residents of
Fraser Island. The crew of the vessel and some squatters
added to the force. This was recorded as being a brutal
accomplishment in exterminating a large number of
aborigines on 3rd January 1852.
(n) The above historical facts clearly indicate that the parents of
MARY ANN DALUNGDALEE ROONEY and JACKO
MORRIS were in occupation and possession of their Lands
and Seas prior to European settlement. and as British
Subjects were entitled to a possessory Title in accoreance
(sic) with the COMMON LAW.
(o) These ESTATES are held in TRUST for the Plaintiffs by
the QUEENSLAND GOVERNMENT in accordance with
the past and present Aboriginal Protection Acts.
(p) The Plaintiffs are the Beneficiaries of this TRUST.
(q) The Plaintiffs have the right to inherit the Property of their
forebears in accordance with Succession Act Qld. 1981.
CLAIM FOR ACCOUNTABILITY OF SALES AND
LEASES OF TRUST PROPERTY
(r) The Plaintiffs who are Beneficiaries Of the ESTATES of
their forebears have requested an account of the sales and
leasing of their Property and the royalties obtained from the
use of their Property by the TRUSTEES, the
QUEENSLAND GOVERNMENT. This request was made
on the lst December 1998. This request was denied by the
Chief Executor of the ESTATES of deceased aborigines
designated by the current Community Services (Aborigines)
Act 1984 on the 15th February 1999.
(s) In accordance with the Succession Act Qld.1981 the Duties
of Representatives are defined in S 52 (1)(a) to (e), (1A)(2)
and Liabilities of Executors S 52(A).
(t) In accordance with Rules of the Supreme Court of
Queensland Order 4 Rule 12 pertaining to Executors or
Administrators of deceased persons.
(u) The Chief Executor is the Administrator of Estates of
deceased aborigines pursuant to the Community Services
(Aborigines) Act 1984.
(v) The Minister for Aboriginal and Torres Strait Islanders is
responsible
(w) The STATE OF QUEENSLAND is the TRUSTEE.
5
(x) The Plaintiffs bring this Action as Beneficiaries against the
TRUSTEE, the STATE OF QUEENSLAND.
(y) Costs of Applicants/Plaintiffs to be born by Executors,
Succession Act S 52 (1A) (2).
(z) Statutes of Limitation not effective against persons of legal
disability, that is Beneficiary/Trustee relationship.”
[3] It will be seen that the writ, although containing numerous allegations of fact and
law, fails to clearly identify the claims made by the plaintiffs. However, it may be
deduced that the plaintiffs are claiming what is said to be a common law possessory
title to the lands and seas identified on the map attached to the writ, as being lands
of the Ngulungbara and Dalungbara people. There are also implicit claims under the
first heading for declarations that the subject lands are held in trust for the plaintiffs
by the Queensland Government, and that the plaintiffs have the right to inherit such
land by operation of The Succession Act 1981 (Qld).
[4] The claims, if any, made under the heading “CLAIM FOR ACCOUNTABILITY
OF SALES AND LEASES OF TRUST PROPERTY” are harder to identify. They
may include a claim by the plaintiffs for an account of the defendants dealings with
the subject land in their capacity as trustees for the plaintiffs.
[5] The map annexed to the writ marks out three tribal boundaries:
· That of the Ngulungbara people is depicted containing the northern third
(approximately) of Fraser Island and an area of sea to the east, north and west.
· That of the Batchala people. It consists of a narrow part of central Fraser Island
between the parallel boundaries of the Ngulungbara and Dalungbara lands and
an area of the mainland bounded by The Great Sandy Strait in the east, lines
running due west from the coast from a point opposite the southern most point
of Fraser Island and a line at right angles to that line running due north passing
slightly to the west of the town of Howard and ending at the coast line of
Hervey Bay. The maritime boundaries are shown as eastward extensions of the
two parallel lines which mark the boundaries of the tribe’s lands on Fraser
Island.
· That of the Dalungbara. It includes the remainder of Fraser Island (in the south),
an area of the mainland south of that shown as Batchala lands bounded on the
east by the sea, on the west by a line running from the intersection of the
southern and western Batchala boundaries to the town of Eumundi, and in the
south by a line from Eumundi to Noosa. The southern most boundary is a line
running due east from Noosa.
The plaintiffs do not purport to represent the Batchala people. I will make further
reference to the Batchala people when discussing whether all necessary parties have
been joined.
6
The Statement of Claim
[6] The Statement of Claim is 75 pages in length. Conveniently, it contains an index
from which it can be ascertained that the “relief sought” is to be found on pages 70,
71 and 72. On those pages the following appears:
“(23) THE RELIEF SOUGHT BY THE PLAINTIFF IS:
(a) Pay to the Plaintiff representing the DALUNGBARA the
fair value of the property Lot 505 Crown Plan 907712,
County of March, Parish of Noosa, owned by the Dep. Main
Roads, evaluated by an independent Valuer.
(b) Pay to the Plaintiff, representing the DALUNGBARA,
fifteen per centum (15%) per annum of gross takings of
charges for the Ferry service.
(c) Pay to the Plaintiff, representing the DALUNGBARA, the
sum of $120,000.00 as per Invoice to the NOOSA SHIRE
COUNCIL, TEWANTIN Q for:
“To the removal of property from the sea bed I.E. ocean
sand from granite Bay…80,000m cubed @ $1.50 per
M3…$12,000.00
(d) Transfer the freehold Title to Lot 375 on MCH 4554,
Tewantin to the Plaintiff, representing the DALUNGBARA
LAND COUNCIL and the Aboriginal University of
Australia Dalungdalee Trust.
(e) Transfer the Light Station
(i) Lady Elliot Light Station, LOT 11 on FD1036 par
Bunder, co Flinders.
(ii) Sandy Cape Light Station, LOT 6 on CP893833 par
Carree, co Fraser.
(iii) Double Island Point Lighthouse, LOT 1-3 on
CP904493 par Cooloola, co March.
(iv) To the Plaintiff representing the DALUNGBARA
and NGULUNGBARA land councils and the
Aboriginal University of Australia, Dalungdalee
Trust.
(f) Regarding all other freehold, leasehold Titles within the
designated boundaries of the DALUNGBARA and the
NGULUNGBARA, the Plaintiff directs that the Trustee, the
Queensland Government, pay fifteen per centum (15%) per
annum of all land taxes levied on the freehold and leasehold
Titles to the representative DALUNGBARA LAND
COUNCIL and the NGULUNGBARA LAND
COUNCIL.
(g) Regarding all forest products and products from quarries
and other extractive industries on Crown land which is
unextinguished property rights of the DALUNGBARA and
the NGULUNGBARA the Plaintiff directs that fifteen per
centum (15%) of all sales made by the Crown be paid
annually to the DALUNGBARA LAND COUNCIL and
the NGULUNGBARA LAND COUNCIL.
7
IMPERIAL CROWN LAND SALE ACT 1842
The Colonial office issued directions to Colonial Governors that
15% of all land sales should be reserved for the benefit of
Aborigines that they were to use an amount
‘not exceeding in the whole 15% of the gross proceeds of land sales
for the benefit, civilisation and protection of the aborigines’
This Imperial Directive was ignored by Colonial Governors. By not
fulfilling the lawful orders, the Colonial Governors were in breach of
Duty.
After 157 years the Plaintiff is now in a position to seek legal
enforcement of this long overdue Directive that 15% of sales be paid
to the Beneficiaries of the Government's Trust. It must be noted that
the Relief sought is 15% of the Land Taxes not the land sales.
The Plaintiffs, JOHN DALUNGDALEE JONES and LESLIE
JAMES WILLIAMS J.P. before his death decided that 15% of the
land taxes would serve in the interim to provide finance to our
people and immediately help to become financially independent of
the ‘poison of the welfare system’ as in fact as the property owners
the revenue derived from assets would eliminate dependence of the
welfare system. The Plaintiffs hold in abeyance any further relief
regarding to land appropriated by the Government for public
purpose. Regarding relief sought in (e), it was previously submitted
by the Crown that discovery of titles would take several years. The
Plaintiff rejects that submission as Titles and values are readily
obtained.
Regarding relief sought in (f) the Plaintiff is prepared to negotiate a
suitable timeframe with the Crown.
ROYALTIES ON FISHING AND OTHER SEABED
RESOURCES.
The Plaintiff leaves the question of Royalties on fishing licences and
other offshore licences in abeyance unless such licences are directly
within the offshore boundaries of the DALUNGBARA and the
NGULUNGBARA. That being the case, the Plaintiff is prepared to
negotiate a suitable timeframe with the Crown to determine the
payment of such Royalties.”
The capacity in which the plaintiffs claim
[7] The writ heading identifies the plaintiffs as two persons who represent respectively
“the descendants who are Inheritors of the Estates of MARY ANN
DALUNGDALEE ROONEY” and “the descendants who are Inheritors of the
Estates of JACKO MORRIS”. However, when reference is had to the contents of
the writ and Statement of Claim, it is apparent that the plaintiffs are purporting to
bring their claims as representatives of two tribal groups, the Dalungbara people
and the Ngulungbara people.
8
[8] The Statement of Claim -
1. On page 2, recites the making of a representative order on 21 July 1997 in
action number 183 of 1994;
2. On page 62, contains the allegation that “the plaintiff represents the people
of the DALUNGBARA and NGULUNGBARA in accordance with the
representative order”;
3. The prayer for relief on pages 70, 71, 72, claims relief on the express basis
that the plaintiffs represent, variously, “the DALUNGBARA”, “the
DALUNGBARA LAND COUNCIL and the ABORIGINAL UNIVERSITY
OF AUSTRALIA DALUNGDALEE TRUST”; “the DALUNGBARA and
NGULUNGBARA LAND COUNCILS and the ABORIGINAL
UNIVERSITY OF AUSTRALIA DALUNGDALEE TRUST” and the “the
DALUNGBARA LAND COUNCIL and the NGULUNGBARA LAND
COUNCIL”. There is no relief claimed by the plaintiffs, or either of them,
representing the Ngulungbara.
Matters for determination
[9] There are two matters before me, an application filed on 17 March by the plaintiffs
for “an amended representative order pursuant to R 75 and 76”, an application by
the defendant that the writ be set aside on grounds that –
(a) Mr Jones has not obtained a grant of letters of administration or a
representative order as required by r 76 of the Uniform Civil
Procedure Rules;
(b) Mr Williams died on 5 October 1999 and he did not obtain a grant of
letters of administration or a representative order;
(c) The Statement of Claim does not disclose a good cause of action;
(d) The Statement of Claim has a tendency to prejudice or delay the fair
trial of proceedings as –
(i) It is not possible to identify the people on whose behalf the
action is brought;
(ii) All persons whose presence is necessary to enable the court
to adjudicate effectually and completely on the matters in the
proceeding have not been included as parties to the
proceeding as required by r 62 of Uniform Civil Procedure
Rules, including –
A. All the plaintiffs to Supreme Court proceedings No
183 of 1994;
B. The applicants in a number of Federal Court
proceedings who are making claim to native title in
respect of all or part of the land the subject of the
writ;
C. The Commonwealth of Australia.
(e) the Statement of Claim is otherwise unintelligible, embarrassing,
vexatious and oppressive.
Alternatively, the defendants seek orders –
(a) staying the proceedings;
(b) striking out the Statement of Claim.
9
[10] By mutual agreement, an application for an injunction restraining the defendant
from “disposing of … the Double Island Light Station” was not heard.
Proper identification of parties
[11] If the claim is brought on behalf of the two tribal groups, as Mr Jones asserted in
the course of submissions and as the text of the Statement of Claim suggests from
time to time, the applications in the Statement of Claim concerning the estates of
the late Mrs Rooney and the late Mr Morris and the chain of succession in respect
of those estates are irrelevant or, at best, incomplete. A cause of action needs to be
shown, not just in these two family groups but in all persons on behalf of whom the
action is brought. It struck me as most unlikely that the late Mrs Rooney and the
late Mr Morris were, respectively, the sole members of their respective tribal groups
at the dates of their death and, on my request, Mr Jones informed me in the course
of the hearing that he was not advancing any such contention.
[12] The Statement of Claim places particular reliance on the late Mrs Rooney and the
late Mr Morris as they are respectively forebears of Mr Jones and the late Mr
Williams, and because the claim of succession from those persons to persons now
living can be established with relative ease. But, as is apparent, there is probably
not much to be gained by claiming on behalf of only sections of the two tribes. To
do so would raise the question of the interest, if any, in tribal property held by an
individual tribal member. Also required would be an investigation into membership
of the tribes at relevant times and further consideration of the persons who should
be joined as parties.
[13] The manner in which title is alleged to have passed is of some importance and is
also a source of potential difficulty. The Statement of Claim is based on the
assumption that a descendant of a person has an interest in that person’s property.
This assumption fails to recognise that a person may dispose of his or her estate by
will. A testamentary disposition of real property need not be to the person or
persons who would take on an intestacy. I mention these matters to give something
of an indication of the potential scope of material facts which needs to be taken into
account and possibly pleaded.
The claim for title based on possession
[14] One of the plaintiffs’ principal claims is for common law possessory title of the
land and seas within the areas described in the writ. It is convenient to pause and
consider the principles underlying such a claim. In Powell v McFarlane,1 In a
passage cited with approval by Murray J in Petkov v Lucerne Nominees Pty Ltd, 2
his Honour restated the principles relevant to the concept of possessory title in
respect of a claimant without a registered or a documentary title as follows –
“(2) If the law is to attribute possession of land to a person who
can establish no paper title to possession, he must be shown
to have both factual possession and the requisite intention to
possess (animus possidendi).
1 (1979) 38 P & CR 452 at 470-472.
2 (1992) 7 WAR 163 at 167.
10
(3) Factual possession signifies an appropriate degree of
physical control. It must be a single and conclusive
possession, though there can be a single possession
exercised by or on behalf of several persons jointly. Thus an
owner of land and a person intruding on that land without
his consent cannot both be in possession of the land at the
same time. The question what acts constitute a sufficient
degree of exclusive physical control must depend on the
circumstances, in particular the nature of the land and the
manner in which land of that nature is commonly used or
enjoyed … It is impossible to generalise with any precision
as to what acts will or will not suffice to evidence factual
possession … Everything must depend on the particular
circumstances, but broadly, I think what must be shown as
constituting factual possession is that he alleged possessor
has been dealing with the land in question as an occupying
owner might have been expected to deal with it and that noone
else has done so.”
[15] In order to support a title, the plaintiffs must show continuous and exclusive
possession.3 Toohey J in Mabo v The State of Queensland [No 2],4 discussed but
did not express a concluded view on the existence of a title based on possession in
the case of the appellant. His Honour expressed the view that possession, if lost,
may nevertheless support a right in the plaintiff to recover possession.5 His Honour
said - 6
“… a person’s title arising from prior possession can be defeated
either by a defendant showing that he or she (or another person,
insofar as it undermines the plaintiff’s claim) has a better, because
older, claim to possession or by a defendant showing adverse
possession against the person for the duration of a limitation period.”
[16] In order to establish a framework for the possessory title claim, the plaintiffs would
need to plead matters such as –
(a) Material facts sufficient to show actual possession by the relevant
tribal group of the land claimed prior to dispossession and any other
facts necessary to show possessory title.
(b) Dispossession.
(c) Material facts which go to show that the existing use of the land
claimed is not inconsistent with the plaintiff’s claim for possession.
(d) That title passed from those who had possessory title to the persons
whom the plaintiffs purport to represent.
[17] The Statement of Claim does not allege such material facts, at least, not in a way in
which they are able to be recognised and responded to in a defence.
3 Petkov at 167.
4 (1992) 175 CLR 1 at 206-214.
5 At 210-211.
6 At 211.
11
Identification of the land the subject of the claim and necessary parties
[18] The possessory title claim, on its face, includes many closely settled areas such as
the Hervey Bay region, the Noosa Hinterland, and the towns and cities of Noosa,
Tewantin, Maryborough, Pialba and Urangan. Obviously, much of the land in that
region is freehold. When this was pointed out to Mr Jones on the hearing, he
disavowed an intention to claim such land. The pleading, however, must express the
nature and extent of the claim.
[19] Even in relation to non-freehold land, it will be necessary for the plaintiffs, at the
very least, to identify the tenure of the land the subject of the claims. Such
identification is necessary in order to ascertain what further parties, if any, will need
to be joined. Obviously, if the claim involves Crown leasehold and affects the rights
of lessees, they will need to be joined.
[20] If the action is to proceed as presently framed, at some stage it will be necessary,
having regard to the claim for a percentage of land tax on all land within the subject
area sold by the Crown, to identify all parcels of land sold by the Crown and the
past and present land tax paid in respect of each parcel. Having regard to the way in
which land tax is assessed, any such claim would be extremely difficult to calculate.
Although Mr Jones may well have a pragmatic reason for expressing the claim in
this way, it is highly unlikely that it can have any legally supportable foundation. I
express no concluded view on that matter only because it was not adverted to in the
course of submissions. The question of identification of titles, dates of alienation
and the like, though, are most probably something which could await the
determination of liability.
[21] The members of the Batchala tribe have not been joined. This gives rise to concern
as Mr Jones purported to represent them in action 183 of 1994 in which a claim was
made for common law native title on behalf of the Dalungbara, Batchala and
Ngulungbara people over the area shown in the writ as the tribal area of the three
tribal groups.
[22] There are proceedings in the Federal Court in which at least two tribes, other than
the Dalungbara and the Ngulungbara, claim native title in the area which is the
subject of this action. Moreover, the claim is over areas of sea beyond State
Territorial boundaries. In fact, the claim purports to cover an area of sea up to 200
nautical miles from the coast.
[23] Obviously, the Commonwealth should be joined if the plaintiffs are to persist in this
claim. Also those persons claiming native title over all or part of the land the
subject of this action should be joined as parties to the action.
Confusion concerning the persons on whose behalf claims are made
[24] The Statement of Claim generally does not differentiate between the rights and
interests of the two tribal groups on whose behalf the claims are advanced.
However, when one comes to the claim for relief, some of the paragraphs require
payment of moneys or transfer of property to representatives of one of the tribes.
Other paragraphs, for example, paragraph (g), make no differentiation between the
two tribes. Paragraph (g) requires 15% of sales of forest and quarry products to be
12
paid by the defendants annually to the Dalungbara Land Council and the
Ngulungbara Land Council. No facts are pleaded which show that the Dalungbara
have any interest in the tribal lands of the Ngulungbara or vice versa.
[25] Presumably, the plaintiffs generally intend that there be separate claims in respect
of separate rights alleged to exist in the separate tribal groups. I have already
remarked that relief is sought in favour of unrepresented bodies, namely, the two
land councils. The Statement of Claim does not reveal how any entitlement on their
part can arise. A similar problem exists in other parts of the prayer for relief where
relief is claimed by “the plaintiff, representing the Dalungbara Land Council and
the Aboriginal University of Australia, Dalungdalee Trust”. In paragraph (e), there
is a claim for the transfer of three parcels of property to the plaintiff, this time,
representing both the Dalungbara and Ngulungbara Land Councils and the
Aboriginal University of Australia, Dalungdalee Trust. The Lady Elliot Light
Station and the Sandy Cape Light Station are both within the boundaries claimed on
behalf of the Ngulungbara, whereas the Double Island Point Light Station is within
the boundaries of land claimed by the Dalungbara. This claim to the three light
stations is by both tribes. That appears to contradict the foundation of the
possessory title claim, namely, that the tribal groups had exclusive possession of
land within their respective tribal boundaries. It is likely that the lack of
differentiation arises through inadvertence.
Obvious gaps in allegations of material facts
[26] The pleading does not allege that materials are being removed from the sea bed or
that a ferry service is in operation but claims are made in respect of those matters.
The legal foundations of the claims are obscure to say the least.
The parts of the Statement of Claim relevant to the trust allegations
[27] The plaintiffs assert in paragraph (16) of the Statement of Claim that they –
“… certainly do not claim title under the Native Title Act”, but rather
seek to assert “our right to inherit property of our ancestors that they
were legally entitled to hold pursuant to the common law right to
possessory title based on their occupation and possession of their
traditional lands and seas when British Sovereignty was declared
…”.
[28] Paragraph (17) of the Statement of Claim is headed “THE CROWN THE
TRUSTEE OF ESTATES OF DECEASED ABORIGINES”.
[29] It is alleged in the paragraph that the State of Queensland is the Trustee of the
Estates of deceased Aborigines. How the trusteeship is alleged to arise is far from
plain. Reference is made to the Community Services (Aborigines) Act 1984 but no
provision within that statute is identified.
[30] The paragraph then refers to the appointment of Protectors of Aborigines and the
continuation of such appointments. There then follows some discussion concerning
the aboriginal tracker, Jack Noble, presumably with a view to showing an instance
of the way in which authorities exercised a protective role in relation to some
aboriginals. In the balance of the paragraph there is discussion of –
13
(a) The Anti-Opium and Aboriginal Protection Act 1897, its operation
and consequences;
(b) The claims by Aboriginal trackers for a share of the reward offered
for the capture of members of the Kelly gang;
(c) “a report by the consultancy bureau for the Queensland Government
investigation of the Aborigines Welfare Fund and the Aboriginal
Accounts;”
(d) a work by Dr Rosalind Kidd which it is alleged shows “the complete
control of every aspect of the lives of Aborigines of Queensland;”
(e) examples of how “Protection Acts” were said to have affected
persons called Susie Roonie, Susan Lock and Roger Bennett. This
section of the pleading is generally more of an account of the
historical dealings of some named individuals in respect of locations
and events on and about Fraser Island than a recitation of facts about
the protection of Aboriginals.
[31] Paragraph (18) lists a number of enactments concerning Aboriginals, refers to some
provisions in such legislation dealing with the Administration of Estates and
concludes –
“All previous Aboriginal Protection Acts and the current Act clearly
demonstrates the Trusteeship of the State of Queensland regarding
the Estates of deceased Aborigines, whoever the agent is.”
[32] It is not explained –
(a) How, if at all, this alleged trusteeship of the estates of Aboriginals
establishes or assists in establishing the constructive trust alleged in
paragraph (19);
(b) How, if at all, the allegations of acts done in the protection of
Aboriginals and their status as protected persons gives rise to any
alleged trust
[33] Paragraph (19) of the Statement of Claim is headed “CONSTRUCTIVE
TRUSTEESHIP IMPOSED ON THE CROWN PERTAINING TO THE
PROPERTY OF THE DALUNGBARA AND THE NGULUNGBARA”. It is
alleged in this paragraph that the defendant State of Queensland is a constructive
trustee as a result of its “… asserting Sovereign power that traditional title can only
be alienated by the traditional owners to the Crown”. Plainly, Aboriginal welfare
legislation and conduct in relation to the proportion of aboriginals is not relied on to
support this allegation of the existence of a trust. There then follows references to
the judgments in Mabo [No 2] but no material facts are set out which might support
the contentions. The allegations which follow are ones under the heading
“CONSTRUCTIVE TRUSTEESHIP IMPOSED BY STATUTE”. These
allegations are prefaced by assertions based on the judgment of Toohey J in Mabo
[No 2], including that –
“The common law legal fact that the State of Queensland is the
trustee for the property of the Dalungbara and the Ngulungbara is
upheld by the High Court of Australia with reference to the Privy
Council and the Supreme Court of Canada.”
[34] Then it is alleged that –
14
(a) Trust funds were established in respect of bank accounts containing
moneys derived by compulsory wage savings of Aboriginals; and
(b) Discovery has been sought, unsuccessfully, in respect of various
named persons.
[35] The paragraphs just discussed are representative of the Statement of Claim
generally. Matters which are either irrelevant or which are purely evidentiary in
nature are included with matters which may be material facts. It is impossible to
understand which sets of alleged facts are relied on to support the different
allegations of trust. Does the alleged constructive trust arise as a result of the
matters pleaded in paragraphs (16), (17) or (18) or by virtue of a combination of
those matters? Are some of the allegations intended to be expressed in the
alternative? At what point does the alleged trust arise, what is the subject matter of
the trust; and how and when were the trustee’s duties breached? The Statement of
Claim raises these issues but does not permit resolution of them.
[36] It is apparent from the foregoing that the Statement of Claim should be struck out. It
infringes the requirements of r 149 of the Uniform Civil Procedure Rules that each
pleading must –
“(a) be as brief as the nature of case permits; and
(b) contain a statement of all the material facts on which the
party relies but not the evidence by which the facts are to be
proved …”.
[37] In Banque Commerciale SA En Liquidation v Akhil Holdings Pty Ltd, 7 Mason CJ
and Gaudron J described the function of a pleading as follows –
“The function of pleadings is to state with sufficient clarity the case
that must be met: Gould & Bairbeck & Bacon v Mt Oxide Mines Ltd
(In liq.) per Isaacs and Rich JJ. In this way, pleadings serve to ensure
the basic requirements of procedural fairness that a party should
have the opportunity of meeting the case against him or her and,
incidentally, to define the issues for decision. The rule that, in
general, relief is confined to that available on the pleadings secures a
party’s right to this basic requirement of procedural fairness.”
Where, as is the case here, statutory provisions are sought to be used as the
foundation of a cause of action or claim, it is necessary that the factual basis upon
which such provisions are alleged to operate must be stated with appropriate clarity
in the Statement of Claim.8 The Statement of Claim falls far short of meeting this
requirement.
[38] Nor does it state with any clarity the case which the defendants are required to
meet. The lack of precision is such that the defendants could not deliver an
appropriate defence. The scope of the issues in dispute are not sufficiently clearly
identified to permit disclosure to take place on a properly informed basis. Before
the defendants could attempt to formulate a defence to the Statement of Claim, it
would be necessary for the material facts to be distinguished from the historical
7 (1990) 169 CLR 279 at 286.
8 cf Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Pty Ltd (1998) ATPR
41-633 at 40,977.
15
narration, assertions of law, expressions of opinion and the like which make up the
bulk of the Statement of Claim. In my view, the task is impossible. If the matter
went to trial in its present form, it would be impossible for the trial judge to give
rulings on evidence and, of course, the defendants would not know the case they
had to meet and thus could not properly prepare for trial. The deficiencies in the
document cannot be remedied by particulars. It is not the function of particulars to
provide allegations of material fact.9 A defendant does not plead to particulars.10
Nor can further particularisation eliminate the mass of irrelevant matter in the
pleading.
[39] The Statement of Claim thus has a tendency to prejudice or delay the fair trial of the
proceeding and is “prolix and embarrassing” within the meaning of that word in r
171 of the Uniform Civil Procedure Rules. Parties have a right to have the case
against them articulated in an intelligible form.11
[40] It is not appropriate that the writ of summons be struck out or that the action be
stayed. It is conceded by Mr Hiley QC that the plaintiffs may well be able to
articulate claims which meet the tests in General Steel Industries Inc v
Commissioner for Railways (NSW).12
Application for representative order
[41] I now turn to the application for a representative order. I decline to make the order.
It is plain that there is confusion as to the identity of the persons whom Mr Jones
seeks to represent. The application is based on the assumption that the relevant
persons are descendants of Mary Rooney and Jacko Williams. For the reasons
advanced earlier, that is an erroneous assumption. It has not been established that
all descendants of Mary Rooney are aware of the existence of the litigation
instituted by Mr Jones, let alone its detail. There is even less evidence concerning
the descendants of Jacko Williams. Leslie Williams is now dead and obviously
cannot be a representative plaintiff. There is no evidence that Mr Jones, with the
concurrence of all relevant persons, stands in his shoes.
[42] The evidence does not establish that Mr Jones has the authority of all members of
broader groupings, which he purports to represent, or even many of them.
[43] I propose to order that –
(a) the Statement of Claim be struck out;
(b) the application for a representative order be adjourned to a date to be
fixed.
Obviously, a costs order will be made in favour of the defendants if they seek one.
9 H 1976 Nominees Pty Ltd v Galli and Apex Quarries Limited (1979) 30 ALR 181.
10 TPC v David Jones (Australia) Pty Limited (1985) 7 SCR 109.
11 Davy v Garrett (1878) 7 Ch D 473.
12 (1964) 112 CLR 125.