Gibson v The Minister for Finance, Natural Resources and the Arts
[2012] QSC 12
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- Gibson v The Minister for Finance, Natural Resources and the Arts[2012] QSC 12
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Gibson v The Minister for Finance, Natural Resources and the Arts[2012] QSC 12
Gibson v The Minister for Finance, Natural Resources and the Arts[2012] QSC 12
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Applicant |
ORIGINATING COURT: | |
DELIVERED ON: | 8 February 2012 |
DELIVERED AT: | Cairns |
HEARING DATE: | 3 February 2012 |
JUDGE: | Henry J |
ORDER: | The first respondent is to disclose to the other parties by delivering to them in accordance with Chapter 7 Part 1 of the Uniform Civil Procedure Rules on or before 14 February 2012 copies of the following documents: 1.The Pitt Report and any documentary records of facts considered by the author of the Pitt Report relating to any eventual expression of concern in the Pitt Report as to the suitability of Congress for appointment and in regard to its association with and or control by the Cape York Land Council and any alleged intimidatory or coercive conduct on the part of the Cape York Land Council on behalf of, or in connection with, Congress. 2. Documents evidencing the terms of the proposed ex gratia payment to the second respondent by the State in recognition of mining royalties received by the State prior to the decision under review. 3.Documents containing representations and or submissions, with content relevant to the suitability of Congress to perform its proposed duties and or whether those duties will be breached by the existence of a conflict with other duties or the undue influence of other parties, submitted to the Minister’s Department in respect of the decision the Minister was to make but which were not in the documents placed before the Minister to make her decision. Costs reserved. |
CATCHWORDS: | JUDICIAL REVIEW – DISCLOSURE – where application made for documents to be disclosed – where those documents were not before the decision maker – whether those documents should be disclosed under r 223 UCPR – whether documents are relevant or their disclosure required by special circumstances and the interests of justice. Compagnie Financiere Du Pacifique v Peruvian Guano Co (1982) 11 QBD 55. Mann v Carnell (1999) 201 CLR 1 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd [2001] 1 QdR 276. Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24. Aboriginal Land Act 1991 (Qld) Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) r 223, r 209, r 211. |
COUNSEL: | D J Campbell SC with A D Scott for the applicants T Pincus for the first respondent |
SOLICITORS: | Bottoms English Lawyers for the applicants Crown Law for the first respondent |
[1] On 14 December 2011, I made directions, proposed and consented to, by the parties to this application for a statutory order of review[1].
[2] Those directions required, inter alia:
“(a) Disclosure to be made by the parties to the application by way of a list of documents by no later than 20 January 2012.
(b) Inspection of documents to be completed by no later than 25 January 2012…”
[3] By an application filed 1 February 2012, and heard Friday, 3 February 2012, the applicants applied for disclosure orders pursuant to r 223 of the UCPR against the first respondent (“the Minister”).
UCPR Chapter 7 Part 1 applies
[4] The direction for disclosure and inspection of documents on 14 December 2011 was obviously intended by the parties to be pursuant to Chapter 7 Part 1 of the UCPR. The parties have proceeded on the assumption that Part applies and that this application should be determined in accordance with that Part. In the circumstances the proper approach is to proceed on the basis the direction for disclosure was a direction involving that Part’s application per r 209(1)(c).
Relevant principles
[5] Where, as here, an order of the Court is sought under r 223 requiring a party to disclose a document or class of documents, r 223(4) provides that such an order may only be made if:
“(a) there are special circumstances and the interests of justice require it; or
(b) it appears there is an objective likelihood –
(i) the duty to disclose has not been complied with….”
[6] A party’s duty of disclosure where there are no pleadings, is, pursuant to r 211, to disclose each document in the possession or under the control of the party that is “directly relevant to a matter in issue in the proceeding”
[7] The requirement of “direct” relevance contemplates a document tending to prove or disprove an allegation in issue[2]. In Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd [3] Pincus JA described this as a different obligation to that laid down by Brett LJ in Compagnie Financiere Du Pacifique v Peruvian Guano Co[4] so that it is not enough that is reasonable to suppose a document may directly or indirectly enable an applicant to advance the applicant’s case or damage an opponent’s case. As Pincus JA observed in Mercantile Mutual mere suspicion is not enough[5].
[8] It is important to bear in mind however that while the criterion of direct relevance is likely to be determinative in assessing whether an order to disclose should be made pursuant to r 223(4)(b)(i) it will not necessarily be determinative as to whether an order to disclose should be made pursuant to r 223(4)(a), namely that there are special circumstances and the interests of justice require it.
[9] Further r 223(4) falls to be applied pursuant to r 5 with the objective of avoiding undue delay, expense and technicality and facilitating the rule’s purpose which is in turn to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. As Pincus JA observed in Mercantile Mutual Custodians:[6]
“If it appeared, for example, that an order for further disclosure would be likely to “facilitate the just and expeditious resolution of the real issues”, that would enable and perhaps require the making of such an order.”
Content of initiating application as guide to relevance
[10] In the absence of pleadings the relevance of a document must be determined by reference to the content of the initiating application, in this instance the amended application for a statutory order of review.
[11] The applicant submits the grounds of the principal application relevant to a determination of the present disclosure application are grounds 1 and 4. Those grounds and some of the particulars thereof are:
“Ground 1
That the decision was not authorised by the enactment under which it was purported to be made…
Particulars of Ground 1
…
2. The prescribed functions of the second respondent are incompatible with the duties of a grantee of land under s 40 of the ALA (Aboriginal Land Act 1991).
to:
(a) hold the land the subject of the DOGIT (Deed of Grant in Trust) solely for the benefit of the Aboriginal people particularly concerned with the land; and
(b) apply royalties received by the second respondent under s 203 of the ALA solely for the benefit of the Aboriginal people particularly concerned with the land.
3. On or after the date of the appointment of the second respondent as grantee of the DOGIT under s 40 of the ALA taking effect, the State of Queensland intends to make an ex gratia payment to the second respondent in recognition of mining royalties received by the third respondent in relation to land within the area of the DOGIT prior to that date.
…
5. On a date prior to the decision of the first respondent, the second respondent adopted a proposal (“the proposal”) to pay:
(a) sixty per cent of the monies received by way of the ex gratia payment and any royalties received under s 203 of the ALA in its capacity as grantee of the DOGIT under s 40 of the ALA to the Yuuru People; and
(b) ten per cent of the ex gratia payment to the second respondent to assist it in its role as a prescribed body corporate and as grantee of the DOGIT.
6. On the evidence or other material available to the first respondent:
(a) It was not open to conclude that the payment to be made in accordance with the proposal would be solely for the benefit of the Aboriginal people particularly concerned with the land; and
(b) the only conclusion open in relation to the proposal was that if it were implemented by the second respondent as grantee of the DOGIT under s 40 of the ALA, the second respondent would have acted in breach of its duties as such grantee to:
i. hold the monies received by way of the ex gratia payment on trust and apply any such monies solely for the benefit of the Aboriginal people particularly concerned with the land; and
ii. apply any royalties received by the second respondent under s 203 of the ALA solely for the benefit of the Aboriginal people particularly concerned with the land.
7. At the time of the first respondent’s decision, the first respondent knew or ought to have known the matters particularised in the preceding paragraphs.
…
Ground 4
That the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made in that the first respondent failed to take into account relevant considerations in the exercise of the power….
Particulars of Ground 4
1. In the exercise of the power to make the decision, the first respondent was bound to take into account whether:
a) the appointment of the second respondent as grantee of the DOGIT under s 40 of the ALA would frustrate the objects of the power to make the appointment because the prescribed functions of the second respondent are incompatible with the duties of such a grantee to:
i. hold the land the subject of the DOGIT solely for the benefit of the Aboriginal people particularly concerned with the land; and
ii. apply royalties received by the second respondent under s 203 of the ALA solely for the benefit of the Aboriginal people particularly concerned with the land.
b) the second respondent intended to act in accordance with its duties and obligations as grantee of the DOGIT under s 40 of the ALA;
…
d) the appointment of the second respondent as grantee of the DOGIT under s 40 of the ALA would frustrate the object of s 40(2)(a) of the ALA because:
i. one of the objects of s 40(2)(a) of the ALA is to ensure that corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (“CAATSI corporations”) can only be appointed under s 40 of the ALA provided that they are controlled by persons or entities that are Aboriginal people particularly concerned with the land; and
ii. the second respondent is a CAATSI corporation that is unduly influenced by an entity that is not an Aboriginal person particularly concerned with the land, namely the Cape York Land Council.
2. In the exercise of the power to make the decision, the first respondent failed to take into account the considerations particularised in the preceding paragraph.”
Relevant documents
[12] Drawing upon those grounds, the applicant submits the documents sought to be disclosed are material to either:
“(1) a conflict of interest which arises between the Deed owed by Congress as a Grantee of the new DOGIT with its obligations as a prescribed Native Title Body Corporate and or
(2) Congress’s ability to comply with its obligations as Trustee due to the influence of third parties.”[7]
[13] The applicants submit the Minister was bound to consider these issues as relevant in determining the suitability of Congress as the new Grantee of the DOGIT. The applicants contended that when exercising the power to confer the onerous duties of trustee on Congress, the Minister was “bound to consider whether Congress is competent to perform those duties or whether these duties will be breached by the existence of a conflict with other duties or the undue influence of other parties”[8]. The issues of whether the Minister was bound to give such consideration to those matters and, if so, whether she did so, are matters to be determined at the substantive hearing, with the former issue likely to turn on a question of law rather than fact. However, those issues are adequately identified by the words of the application as being issues in the proceeding. It follows documents relevant to those issues, to the extent those issues involve matters of fact rather than law, ought be disclosed.
[14] In the normal course the documents before the decision maker as part of the making of the decision under review will likely be directly relevant to those issues because in determining whether or not the Minister gave consideration to those issues, it will be necessary to consider whether documents relevant to those issues were even before the decision maker. In this matter counsel before me were of the understanding that the documents before the Minister for the purposes of making her decision have already been disclosed[9].
[15] However, the applicants submit that documents beyond those before the Minister may also be relevant for the purposes of disclosure, citing observations in Minister for Aboriginal Affairs v Peko Wallsend Limited[10]. As was explained in that case by Gibbs CJ and Brennan J, while a Minister might rely upon a departmental summary to identify a material fact which the Minister is bound to consider, if there has been a failure to draw the Minister’s attention to a material fact, the Minister’s ignorance of the fact should not protect the validity of the Minister’s decision[11].
[16] There are eight categories of documents which the applicants seek disclosure of by the first respondent. They are itemised in the headings (i) to (viii) preceding the discussion of each below.
(i) Any document containing or recording senior counsel’s advice referred to at page 15 of the report of Judge Fleur Kingham dated 9 June 2006 (“the Kingham report”) which is said in that report to be the basis for the State’s position that “there is a real and substantial conflict of interest for a PBC, such as Congress, to be as (sic) trustee of the Trust.”.
[17] It is not clear whether the advice referred to in this category of document opined there was a conflict of interest on the basis of Congress’ status per se as a PBC (a prescribed body corporate) or because of additional factual considerations relevant specifically to Congress. If the former, then the category of document would be irrelevant as going solely to a matter of law.
[18] In either event however, the category of document is irrelevant because it relates to an advice referred to in a report dated 9 June 2006. That is, it is temporally stale. In short, by reason of its age alone, it would not have been sufficiently material to have been placed before the decision maker for the purposes of her decision in 2011.
[19] There does not appear to be an objective likelihood that the duty to disclose has not been complied with in respect of this category of document nor is it a category of document in respect of which special circumstances and the interests of justice require its disclosure.
[20] The first respondent also submitted the category of document ought not in any event be disclosed on the grounds of legal professional privilege. The applicants effectively conceded the advice was prima facie subject to legal professional privilege but contended that privilege had been waived. The report of Land and Resources Tribunal Deputy President Kingham (as she then was) was placed before me by the applicants’ counsel as an aid to argument and marked A for identification. On its face, the report is a “Hopevale Land Issues facilitation report to Bob McCarthy, Director-General NRMW”. How the author of the report came to be aware that the State’s position based on Senior Counsel advice was that there was a real and substantial conflict of interest for a PBC such as Congress to be a Trustee of the Land Trust is simply unknown. The mere appearance of that proposition in such a report falls substantially short of demonstrating the requirement that there has been a waiver of the privilege attaching to the advice.[12]
(ii) Documents evidencing the previous indications by the Department referred to in the Director-General’s 27 August 2007 letter that “it does not currently support involvement of the PBCs as Trustees because of the conflict that could arise” and the work referred to in that letter “to see how the Aboriginal Land Act might be amended to provide for a PBC to become a Trustee of land granted under that Act. [including but not limited to the discussion paper referred to at page 15 of the Kingham report where the issue is said to have been raised]””.
It is helpful to consider the broader context of the above quoted words as they appear in the abovementioned letter, which became part of exhibit A:
“…As to who may be trustees for the proposed balance area land trust, the Department previously has indicated that it does not currently support the involvement of the PBCs as trustees because of the conflict of interest that could arise. The concept of the trust, which involves the three PBCs and the Council as trustees, also seemingly reflects a different view to that held by the Department about the role and responsibility of the trustees. This point is important because in the Department’s view a person in their role as trustee has a legal obligation to everyone who is a member of the trust and not just those whose interests that person might consider they ‘represent’. That is, trustees represent, and in their decision making must consider, what is best for all the beneficiaries of the trust. This puts a PBC, which is limited in its membership to only the native title holders and owes them a particular responsibility, in an impossible conflict given how the trust must make decisions.
An alternate model in the Report for trustees has the effect of entrenching who may be trustees into the future by limiting those persons to a particular class by reference to a position. The Department is of the view that the Aboriginal Land Act 1991 does not permit the appointment of a trustee by reference to a position. It must be a reference to a real person, which can include a corporate entity, for example a council.
Given the above, work is however currently occurring to see how the Aboriginal Land Act might be amended to provide for a PBC to become trustee of a grant under that Act. I would expect that once this work is complete then a recommendation to make the necessary amendments would be made to government.
Outside of these general comments about the trustees and because the necessary community consultation has not yet occurred, no views had been formed about who should be the trustees, or indeed how many trustees should be appointed….”
[21] It is apparent that none of the above went to the specific competency of Congress to perform its potential duties as a grantee of the DOGIT whether by reason of a conflict, undue influence or any other factual reason. Rather it went to the question whether as a matter of law any PBC could become a trustee for a DOGIT by reason of the conflict of interest that could arise as between its duties as a PBC and its duties as a trustee. Documents evidencing the previous indications by the Department as to that matter of law are irrelevant. If the law was amended then the Minister was obliged to make her decision in accordance with the law as amended. The work done to prompt any amendment was of no relevance to her decision making.
[22] The respondents may in due course contend the mere fact the Aboriginal Land Act 1991 (Qld) permits a PBC to become a trustee for a DOGIT of itself eliminates potential conflict as a relevant consideration. If so, the applicants will not need documents of this category to fairly meet such an argument. There are no special circumstances and the interests of justice do not require the disclosure of this category of document.
(iii) The report of the Hon Warren Pitt made in 2009 for the government in relation to Hopevale (“the Pitt report”).
(iv) Documents relating to any deliberations or consultations engaged in by the State, its officers, or agents, concerning the Pitt report including, but not limited to:
I. the observations in that report about the close association between Congress and the CLYC and the de facto control exercised over Congress by the CLYC; and
II. the concerns expressed in that report about the intimidation by CLYC on Hopevale traditional owners coercing them to attend meetings of Congress.
[23] Document categories (iii) and (iv) can be considered collectively.
[24] The Minister’s reasons at page 4 indicated she noted the views set out in a joint submission by, inter alia, some of the present applicants, and that the joint submission opposed the transfer to Congress for reasons including that it ignored:
“…Government Report (…Pitt) note: …Pitt Report noted concerns about Congress being the grantee…”[13]
[25] The joint submission said of the Pitt Report:
“67. In his report Mr Pitt highlighted the dangers of the financial plan presently adopted by Congress and the divisive nature within the Aboriginal community of the appointment of Congress particularly because of its close association and de facto control by the Cape York Land Council (“CYLC”) a body which is external to and not associated with the Hopevale Aboriginal community.
…
69. It is clear that Congress is influenced and controlled by the CYLC…In his report Mr Pitt noted with concern that there was intimidation by the CYLC on Hopevale Traditional Owners coercing them to attend meetings of Congress….”
[26] It appears likely from the joint submission that the applicants at some point had access to a copy of the Pitt report. However, that does not remove the requirement upon the first respondent to disclose such a document if it be directly relevant to the application.
[27] The first respondent did not put the Pitt Report before me for the purposes of the disclosure application, for example to demonstrate that the abovementioned understanding of the authors of the joint report as to its content was incorrect or that the references to close association, de facto control, intimidation and coercion on the part of CYLC were unfounded, lacking in credibility or based on hearsay as opposed to direct factual sources.
[28] On the face of it those aspects of the Pitt Report as described in the above quoted extract from the joint submission, are directly relevant to the issue of Congress’ suitability.
[29] It appears from the statement of reasons that the Pitt Report was not before the Minister and that the only reference in the reasons to it is the reference that the joint submission had made to it. Whether the content of that report was so material that the Minister was bound to consider it is heavily dependant upon the actual content of the report as it relates to the undue influence issue and the factual foundation for the concerns said to be have been expressed in the report as to that issue.
[30] Ultimately, in the absence of the report it is not possible to conclude there is an objective likelihood the duty to disclose has not been complied with, that is, that the report or documents in support of its expression of concern as to the undue influence issue is directly relevant to the amended application.
[31] However, the potential importance of the document and the material potentially supporting it on the issue of undue influence, when considered in conjunction with the evidence that the report was a report to the government and did, at least according to the evidence before me, express concerns as to undue influence, are special circumstances. Given it is likely the report’s expression of such concerns was based on factual information which will be apparent from its content and or other documents recording the facts (relevant to those concerns) which were before the report’s author the interests of justice require that the report and such documents be disclosed. Even if it transpires that any such material is irrelevant or of no weight, disclosure will nonetheless have been in the interests of justice because it will allay the perception, that justice has not been seen to be done, which would predictably arise from the non-disclosure of a report to government said to express concern on a matter the applicants contend should have been a material concern to the Minister.
[32] The disclosure of the report and associated documents is unlikely to be logistically demanding upon the officers of the first respondent. That is obviously so in respect of the report. Further it is likely that if such associated documents or copies thereof were retained by the Minister’s department they would have been retained and stored or filed collectively in hard copy and or computer records. In short there is no basis to consider an order for disclosure per r223(4)(a) would be so onerous that difficulty in complying with it would amount to a material consideration in the interests of justice against making such an order.
[33] My orders will require the disclosure both of the Pitt Report and of any documentary records of facts considered by the author of the Pitt Report relating to any eventual expression of concern in the Pitt Report as to the suitability of Congress for appointment and in regard to its association with and or control by the Cape York Land Council and any alleged intimidatory or coercive conduct on the part of the Cape York Land Council on behalf of, or in connection with, Congress.
(v) Documents relating to the meeting on 12 October 2010 held between Mr Jim McNamara and a number of Hopevale residents (referred to at paragraph 70 of the joint representation which is annexure “GRM-9” to the affidavit of Gregory Raymond McLean sworn on 2 December 2011).
(vi) Documents relating to any meeting with representatives of CYLC, namely Mr Peter Callaghan, Mr John Reeves and Mr Gerhardt Pearson (referred to at paragraph 71 of the joint representation which is annexure “GRM-9” to the affidavit of Gregory Raymond McLean sworn on 2 December 2011) and documents relating to any correspondence from the Hopevale Aboriginal Shire Council dated 12 October 2010 in relation to that meeting.
[34] Document categories (v) and (vi) can be considered collectively.
[35] The argument seeking their disclosure relies on the content of the joint submission, which is, relevantly:
“70. The influence that the CYLC has over Congress can also be shown from a meeting held on 12 October 2010 between Mr Jim McNamara, Director-General, Department of Environment and Resource Management, and a number of Hopevale residents, including me. At that meeting, Mr McNamara was given by me correspondence from six individual clan groups supporting the transfer of the Deed of Grant in Trust to the Foundation, and the payment of the ex gratia payment to the Council to administer. Copies of these letters are annexed.
71. At this meeting Mr McNamara indicated that he then planned to meet with the representatives of the Cape York Land Council namely, the Chief Executive Officer, Mr Peter Callaghan, the Senior Legal Officer, Mr John Reeves, and the Executive Director of Balkanu, Mr Gerhardt Pearson who, I was told, were meeting with the legal representatives of Congress.
72. Despite a request by Mr Baru and Mr Michael, as representatives of their clan groups (who are members of Congress), to attend that meeting they were not permitted to attend. In addition, Mr Baru and Mr Michael informed Mr McNamara that the CYLC did not have any authority to act as the legal representative of Congress and that no resolution to that effect had been passed.
73. Despite this the meeting with CYLC went ahead. This meeting shows that negotiations regarding the granting of the new DOGIT to Congress were undertaken either through or with the active assistance of the CYLC.”
[36] None of the events described above provide a basis to conclude documents relating to the meetings referred to are directly relevant to an issue in the amended application. The fact that representatives of the CYLC were or were to be in attendance at meetings with departmental officers relating to Congress is unremarkable. The only inference the joint submission sought to draw at paragraph 73 was that the CYLC had an involvement in negotiations regarding the granting of the DOGIT. This is not an inference adverse to the suitability of Congress or suggestive of undue influence.
[37] There was no duty to disclose these documents and there are no special circumstances or interests of justice considerations warranting an order for their disclosure.
(vii) Documents evidencing the terms of the proposed ex gratia payment to the second respondent by the State in recognition of Mining Royalties received by the State prior to the decision under review.
[38] The terms of the proposed ex gratia payment inevitably form part of a body of evidence directly relevant to the issues identified in the particulars of ground 1 of the application. It is probably not as significant in that context as the content of Congress’ proposal as to the distribution of the money but it has an obvious evidentiary connection with the proposal. It may reasonably be inferred the meaning and effect of Congress’ proposal derives at least in part from the content of the terms of the proposed ex gratia payment.
[39] In the circumstances there is an objective likelihood the duty to disclose the document has not been complied with and its disclosure should be ordered.
(viii) Complete copies of any submissions or representations to the first respondent in relation to the first respondent’s decision, including (but not limited to) the representations and submissions referred to in documents 1.26 and 1.34 of the first respondent’s list of documents delivered pursuant to the order of the Honourable Justice Henry made on 14 December 2011.
[40] I infer this category of document relates to submissions or representations that were not before the decision maker because the documents which were actually before the decision maker have apparently been disclosed.
[41] Consistent with the reasoning earlier explained by reference to Minister for Aboriginal Affairs v Peko Wallsend Limited[14], if representations and or submissions submitted to the Minister’s department in respect of the decision the Minister was to make contained material facts, not otherwise before the Minister, which the Minister was bound to consider, that may invalidate the decision.
[42] No specific submissions or evidence was advanced to demonstrate an objective likelihood that there has, in this context, been a failure to disclose documents directly relevant to an issue in the amended application.
[43] However the applicants are obviously in a position of disadvantage in acquiring knowledge of whether there is such material in the hands of government. They also have no way of knowing whether the material which was before the Minister adequately identified material facts she was bound to consider and which appeared in materials received but not placed before the Minister. Further in circumstances where the department previously determined it was irrelevant to place such material or the facts identified in the material before the Minister it is unlikely to be wholly objective in re-appraising the relevance issue in the light of the amended application. As against that if disclosure of this material is ordered it would obviously not be of all such material and be confined by description to material relevant to the issues in the amended application which have been the particular focus of this disclosure application.
[44] On a collective consideration of these matters there are special circumstances and the interests of justice require the disclosure of a confined class of documents containing representations and or submissions submitted to the Minister’s department in respect of the decision the Minister was to make but which were not in the documents placed before the Minister to make her decision. The class of documents will be those with content relevant to the suitability of Congress to perform its proposed duties and or whether those duties will be breached by the existence of a conflict with other duties or the undue influence of other parties.
[45] It will be apparent from the above that the applicants have only been partially successful on their application. In all of the circumstances I will reserve consideration of the issue of the costs of the disclosure application.
Orders
[46] My orders are:
The first respondent is to disclose to the other parties by delivering to them in accordance with Chapter 7 Part 1 of the Uniform Civil Procedure Rules on or before 14 February 2012 copies of the following documents:
1.The Pitt Report and any documentary records of facts considered by the author of the Pitt Report relating to any eventual expression of concern in the Pitt Report as to the suitability of Congress for appointment and in regard to its association with and or control by the Cape York Land Council and any alleged intimidatory or coercive conduct on the part of the Cape York Land Council on behalf of, or in connection with, Congress.
2. Documents evidencing the terms of the proposed ex gratia payment to the second respondent by the State in recognition of mining royalties received by the State prior to the decision under review.
3.Documents containing representations and or submissions, with content relevant to the suitability of Congress to perform its proposed duties and or whether those duties will be breached by the existence of a conflict with other duties or the undue influence of other parties, submitted to the Minister’s Department in respect of the decision the Minister was to make but which were not in the documents placed before the Minister to make her decision.
Costs reserved.
Footnotes
[1] [2011] QSC 401.
[2] Robson v REB Engineering Pty Ltd [1997] 2 QdR 102 at 105.
[3] [2001] 1 QdR 276 at 282-3.
[4] (1982) 11 QBD 55.
[5] Supra at 283.
[6] Ibid.
[7] Applicants’ Written Submissions para 2.
[8] Applicants’ Written Submissions para 3.
[9] T1-26 L39, T1-34 L57.
[10] (1986) 162 CLR 24.
[11] Ibid 30-31 per Gibbs CJ, 66 per Brennan J.
[12] Mann v Carnell (1999) 201 CLR 1.
[13] Minister’s reasons p 4; Exhibit GRM-15 to second affidavit of Gregory Raymond McLean sworn 7. December 2011, filed 8 December 2011.
[14] Supra.