Windbox Pty Ltd v Daguragu Aboriginal Land Trust and Others (No 3)

• Jurisdiction: Northern Territory
• Judge: Hiley J
• Judgment Date: 16 September 2019
• Neutral Citation: [2020] NTSC 21
• Court: Supreme Court
• Docket Number: FILE NO: 11 of 2018 (21840850)
• Date: 16 September 2019

[2020] NTSC 21

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

JUDGMENT OF:

Hiley J

FILE NO: 11 of 2018 (21840850)

Between:

Windbox Pty Ltd (ACN 007 419 641)

Plaintiff

and

Daguragu Aboriginal Land Trust

First Defendant

and

Central Land Council

Second Defendant

and

Jact Pastoral Pty Ltd

Third Defendant

and

Zebb Raymond Leslie

Fourth Defendant

and

Kylie Danielle Rowbottom

Fifth Defendant

REPRESENTATION:

Counsel:

Plaintiff: A Harris QC, M Barnett and S Heidenreich

1 ^st & 2 ^nd Defendants: C Young

3 ^rd, 4 ^th & 5 ^th Defendants: A Wyvill SC and H Baddeley

Briginshaw v Briginshaw (1938) 60 CLR 336, Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172, Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189, applied

Advanced Fuels Technology v Blythe [2018] VSC 286, Australian Securities and Investments Commission (ASIC) v Citigroup Global Markets Australia Pty Ltd (No 4) (2007) 160 FCR 35, Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2010) 238 FLR 384, CellOS Software Ltd v Huber [2018] FCA 2069, Wilson Parking Australia 1992 Pty Ltd v Rush [2008] FCA 1601, distinguished

Hodgson v Amcor Ltd [2012] VSC 94, APT Technology Pty Ltd v Aladesaye [2014] FCA 966, Ashby v Slipper (2014) 219 FCR 322, ASPL Pty Ltd v Rajakaruna [2019] WASC 269, Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 310 ALR 165, Australian Securities and Investments Commission v King [2020] HCA 4, Bahr v Nicolay (No.2) (1988) 164 CLR 604, Bale v Mills (2011) 81 NSWLR 498, Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, Commissioner for Corporate Affairs v Bracht [1989] VR 821, Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, Courtenay Polymers v Deang [2005] VSC 318, Ellis v Central Land Council [2018] FCA 35, Ellis v Central Land Council [2019] FCAFC 1, Emeco International Pty Ltd v O'Shea [No 2] [2012] WASC 348, Giannarelli v Wraith (No.2) (1991) 171 CLR 592, Gondarra v Minister Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202, Jones v Dunkel (1959) 101 CLR 298, Links Golf Tasmania Pty Ltd v Sattler (2012) 213 FCR 1, Manildra Laboratories v Campbell [2009] NSWSC 987, Nordenfelt v The Maxim Nordenfelt Guns and Ammunition Company Ltd [1894] AC 535, Northern Land Council v Quall [2019] FCAFC 77, R v Toohey; ex parte Meneling Station (1982) 158 CLR 327, Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 201, Smith Kline & French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Secretary, Department of Community Services (1990) 22 FCR 73, Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87, Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272, Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2019] NTSC 47, Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [No 2] [2019] NTSC 96, referred to

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 4, s 5, s 19, s 22, s 23

Corporations Act 2001 (Cth) s 179, s 181, s 182, s 183

Evidence (National Uniform Legislation) Act 2011 (NT), s 140(2)(c) Transfer of Land Act 1893 (WA)

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES — Aboriginal land rights — grazing licence granted by Land Trust pursuant to s 19 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) — direction and satisfaction of relevant Land Council when performing its functions under ss 19 and 23 ALRA (Cth) — indefeasibility of title under s 19(6) ALRA.

REAL PROPERTY — indefeasibility of title under s 19(6) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) — fraud as an exception.

CORPORATIONS — Statutory duties — Officers and employees — Meaning of “officer” — Duty to act in good faith — Duty not to use position improperly — Duty not to improperly use information — Improper use of former position to obtain advantage in subsequent commercial transactions — Requirement to clearly identify the information said to have been used improperly — ss 9, 181, 182, 183 of the Corporations Act (Cth)

REASONS FOR DECISION

(13 May 2020)

Contents
Introduction	3
Facts	6
Credit	64
Validity of the JACT grazing licences	85
Breach of Statutory Duty	92
Was Mr Leslie an officer?	104
When did Mr Leslie “plan” to apply for the grazing licences?	126
Misconduct allegations	151
Sections 182(1) and 183(1)	167
Conclusions and Orders	203

Introduction

1 The plaintiff, Windbox Pty Ltd ( Windbox or the Company), conducted a cattle business on land owned by the Daguragu Aboriginal Land Trust ( Dalt). Windbox held grazing licences granted by DALT over three areas of land known as McDonald's Yard, Berta Warta and Northern Paddocks (the Windbox grazing licences). Those licences expired on 7 September 2011, 1 September 2010 and 12 November 2010 respectively. Windbox continued in occupation of that land.

2 In June 2018, the second defendant ( CLC) conducted meetings with people whom it considered to be the relevant traditional aboriginal owners of the relevant land. A fresh grazing licence was issued to Windbox over the Northern Paddocks land and fresh grazing licences were purportedly granted to the third defendant, JACT Pastoral Pty Ltd ( JACT PPL), over the McDonald's Yard and Berta Warta areas (the Land) (the JACT grazing licences). The licences were to commence on 8 October 2018.

3 On 29 June 2018, CLC wrote to Windbox advising of the outcome of the June meetings and gave Windbox 90 days' notice to vacate the land. This required Windbox to remove its cattle, approximately 6000 head, by the end of September 2018. Windbox commenced these proceedings on 27 September 2018 and sought urgent relief by way of interlocutory injunction to restrain the CLC from enforcing the notices to vacate. The Court heard that application on 19 October 2018 and following agreement between the parties, made an interlocutory injunction which was to expire on 1 May 2019. 1 The main effect of the interlocutory injunction was to preserve the status quo and allow the plaintiff's cattle to remain on the land during the wet season. This effectively deprived JACT PPL and its directors and shareholders, the fourth and fifth defendants (collectively referred to as JACT) of their ability to use the land the subject of the JACT grazing licences and to conduct a pastoral business on the Land.

4 Evidence was adduced mainly by affidavit. Witnesses were called and crossexamined over a period of eight days from 4 - 8 and 13 - 15 March and 4 April 2019. Programming orders were made for the filing and exchange of written submissions. At that stage the main claims on the part of Windbox concerned whether:

• (a) the Windbox grazing licences had in fact ended, or had been renewed, and thus whether the notices to vacate were valid 2;

• (b) the (new) JACT grazing licences were valid, particularly having regard to the provisions in s 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ( ALRA) 3;

• (c) a permanent injunction should be made securing Windbox's continued rights under the Windbox grazing licences;

• (d) CLC made misleading or deceptive representations in trade or commerce; 4

• (e) the fourth defendant, Zebb Leslie, was an officer of Windbox at all relevant times and, in breach of his statutory duty, improperly used Windbox's information and exploited Windbox's commercial opportunity to Windbox's detriment and or to his own advantage; 5

• (f) CLC knowingly assisted Mr Leslie's breaches of statutory duty; 6 and

• (g) the third and fifth defendants are liable as accessories to Mr Leslie's breaches of statutory duty.

Live issues

5 On 1 May 2019 JACT purported to terminate the JACT grazing licences on the basis that DALT and CLC had failed to provide and permit JACT access to and possession and use of the land from 8 October 2018. Accordingly, Windbox no longer required the permanent injunctive relief originally sought against the defendants.

6 Windbox settled its claims against DALT and CLC. Windbox, DALT and CLC purported to have Windbox's claims against DALT and CLC dismissed by consent orders. 7 However, on 23 August 2019 the Court set aside the

consent orders at the request of the JACT parties, mainly because of their desire to obtain a judgment on those issues that might be relevant to their entitlement to damages flowing from the making of the interlocutory injunction. 8

7 Accordingly, Windbox's only live claim is that against JACT based upon its allegations of breach of statutory duty by Mr Leslie. However, JACT seeks determination of the other main issues, primarily the validity and effect of the JACT grazing licences. 9 By summons filed on 16 September 2019, Windbox applied for the proceedings brought by it against DALT and CLC to be dismissed. Senior counsel for Windbox confirmed that Windbox no longer advances any positive case in support of paragraphs [53.6] and [53.7] of the FSOC.

Facts

Parties and their roles

8 DALT is a land trust established and constituted under s 4 of ALRA. It is the proprietor of an estate in fee simple of land in the Northern Territory. 10 It holds the land for the benefit of the traditional Aboriginal owners of the land (the traditional owners). 11 DALT constituted of five members, who were appointed from 27 March 2018. At least three of those members must

provide their written authority for DALT to affix its common seal to a document. Like all Land Trusts established under ALRA, DALT could not exercise its functions in relation to its land unless it had a direction to that effect from the relevant Land Council, here the CLC

9 Aboriginal communities at Kalkarindji and Daguragu are within the land owned by DALT. Kalkarindji is located about 500km...