Case: Bodney v Bropho [2004] FCAFC 226
Outcome: followed
Bodney v Bropho [2004] FCAFC 226 , I said that determination of the question of the "proper" claimant group is not properly a subject for determination on a strike out application. I said at [7] and [8]: 7 Whether the Ballaruk and Didjarruk people was a wider group of people than Mr Bodney's immediate family was a matter of serious dispute before the primary judge. William Warrell and Margaret Gentle had sworn affidavits consistent with the view that the Ballaruk and Didjarruk people was a wider group than Mr Bodney's immediate family. However, Mr Warrell and Ms Gentle were not cross-examined, even though it is plain that Mr Bodney disputed the accuracy and indeed the truthfulness of the claims that they made in their respective affidavits. 8 Resolution of that factual question is, in my respectful view, not properly the subject for determination on a strike-out application. The finding of lack of authorisation (or, more precisely, the primary judge's finding that Mr Bodney had failed to establish authorisation in either of the ways contemplated by s 251B of the Act), was dependent on the factual finding by the primary judge on that question. In my judgment, it is not appropriate at this time and on this application to determine those issues. Three of the persons who have executed affidavits for Mr Delaney, namely, Neville Isaacs Jnr, Ervyn Isaacs, and Stella Isaacs, are respondents to the principal proceedings, and therefore are entitled to be heard on those issues in the proceeding. It is a curious feature of the present application that it is contended that there are alternative bases for the authorisation to change the composition of the applicant. The primary submission is that Ms Connie Isaacs, on 9 February, made the decision, and she, as Elder was entitled to make that decision for the purposes of s 251B(a) of the Act. The traditional laws and customs of the native title claim group, it was said, gave the authority to make that decision to Ms Isaacs as Elder. That was the basis on which Ms Isaacs made the original application. In the present case, all but one of the adult members of the native title claim group (as expressed in the original application) have acquiesced and acceded to this particular exercise of authority by Ms Isaacs, after there was consultation among members of the claim group as to what was proposed. The remaining adult member, Jodie Briggs, has previously acknowledged the authority of Ms Isaacs as Elder. The curious feature is that it was submitted that if the Court was not satisfied that the decision of Ms Connie Isaacs as Elder was the process of decision making under the traditional laws and customs of the persons in the Turrbal native title claim group, there had nonetheless been a decision made to authorise Ms Isaacs and Ms Barambah pursuant to a process of decision making agreed to and adopted by the persons in the native title claim group, to be inferred from the conduct of the members of the native title claim group between 9 February and 15 June 2007, when the senior members of the Turrbal group met for the purpose of making a decision. That decision was subsequently ratified by as many adult members of the Turrbal claim group as practicable (indeed, by all but one), and the resolution initially passed on 9 February 2007, having subsequently been ratified by all but one adult members of the native title claim group, constituted a sufficient authorisation within the requirements of the Act. There is simply no evidence that that method of decision making was the process of decision making required to be complied with in relation to authorising things of that kind under the traditional laws and customs of the persons in the native title claim group. The original application was not authorised by that process and, it seems to me, the alternative form of authorisation contended for factually is at odds with the primary contention of the applicant concerning authorisation, namely, that Ms Connie Isaacs as Elder had the authority of the native title claim group to make the original application, because that was the decision making process mandated by the traditional laws and customs of the native title claim group. If Connie Isaacs had authority on that basis to make the original application, she similarly had authority on the same basis to make the decision to change the constitution of the applicant from Ms Connie Isaacs to Ms Connie Isaacs and Maroochy Barambah. Both Helen Bowskill, counsel for the State of Queensland, and Mr Peter Flanagan SC for the Commonwealth submitted that s 66B assumes that the current applicant (who is sought to be replaced by the current applicant and her daughter) had authority to bring the claim at the time the claim was made: s 66B(1)(a)(i).