Amos Incorporated v Walker (in his capacity as Commissioner for Fair Trading)
[2003] WASCA 52
•21 MARCH 2003
AMOS INCORPORATED -v- WALKER (in his capacity as COMMISSIONER FOR FAIR TRADING) [2003] WASCA 52
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 52 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2000/2002 | 13 FEBRUARY 2003 | |
| Coram: | MURRAY J ANDERSON J STEYTLER J | 21/03/03 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi discharged | ||
| B | |||
| PDF Version |
| Parties: | AMOS INCORPORATED PATRICK WALKER (in his capacity as COMMISSIONER FOR FAIR TRADING) |
Catchwords: | Administrative law Writ of prohibition Whether Commissioner provided adequate reasons for issue of notice cancelling incorporation of association Whether Commissioner failed to take into account relevant considerations Whether Commissioner acted for an improper purpose Turns on own facts |
Legislation: | Associations Incorporation Act 1987 (WA), s 34, s 35 Aboriginal Councils and Associations Act 1976 (Cwth), s 45(1)(a), s 46(1)(aa) Interpretation Act 1984 (WA), s 3(1), s 5 |
Case References: | Nil Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235C; 5 May 1998 Cotterill v Lempriere (1890) 24 QBD 634 Coward v Stapleton (1953) 90 CLR 573 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 Gudgeon v Black (1994) 14 WAR 158 John L Pty Ltd v AttorneyGeneral (NSW) (1987) 163 CLR 508 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 Re Ryan; Ex parte Travaglini [1979] WAR 23 Stepney Borough Council v Joffe [1949] 1 KB 599 Sydney Municipal Council v Campbell [1925] AC 338 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : AMOS INCORPORATED -v- WALKER (in his capacity as COMMISSIONER FOR FAIR TRADING) [2003] WASCA 52 CORAM : MURRAY J
- ANDERSON J
STEYTLER J
- Applicant
AND
PATRICK WALKER (in his capacity as COMMISSIONER FOR FAIR TRADING)
Respondent
Catchwords:
Administrative law - Writ of prohibition - Whether Commissioner provided adequate reasons for issue of notice cancelling incorporation of association - Whether Commissioner failed to take into account relevant considerations - Whether Commissioner acted for an improper purpose - Turns on own facts
Legislation:
Associations Incorporation Act 1987 (WA), s 34, s 35
Aboriginal Councils and Associations Act 1976 (Cwth), s 45(1)(a), s 46(1)(aa)
Interpretation Act 1984 (WA), s 3(1), s 5
(Page 2)
Result:
Order nisi discharged
Category: B
Representation:
Counsel:
Applicant : Mr A S Skinner
Respondent : Mr C L Zelestis QC
Solicitors:
Applicant : Mony de Kerloy
Respondent : Department of Consumer & Employment Protection
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222
Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235C; 5 May 1998
Cotterill v Lempriere (1890) 24 QBD 634
Coward v Stapleton (1953) 90 CLR 573
Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153
Gudgeon v Black (1994) 14 WAR 158
John L Pty Ltd v AttorneyGeneral (NSW) (1987) 163 CLR 508
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171
Re Ryan; Ex parte Travaglini [1979] WAR 23
Stepney Borough Council v Joffe [1949] 1 KB 599
Sydney Municipal Council v Campbell [1925] AC 338
(Page 3)
1 MURRAY J: I have had the advantage of reading in draft the reasons to be published by Steytler J. I agree entirely with them. There is nothing which I could usefully add in support of the conclusion that the order nisi for prohibition should be discharged.
2 ANDERSON J: I have read the judgment of Steytler J and entirely agree with it. There is nothing I can usefully add.
3 STEYTLER J: This is the return of an order nisi for the issue of a writ of prohibition. On 16 July 2002 the applicant, Amos Inc, obtained an ex parte order calling upon the respondent, the Commissioner for Fair Trading (WA) ("the Commissioner"), to show cause before the Full Court why a writ of prohibition should not be issued against him in respect of matters the subject of two notices dated 4 January 2002 and 16 May 2002 issued pursuant to s 34 and s 35 respectively of the Associations Incorporation Act 1987 (WA) ("the State Act").
4 Before mentioning the grounds upon which the issue of the writ of prohibition is sought, I should say something about the background to the matter, as it appears from the affidavits filed in these proceedings.
5 Much of that background appears from the affidavit of Douglas William Dimer, a former secretary of Amos Inc, sworn on 21 January 2003 and filed on behalf of Amos Inc. Mr Dimer said that, in 1923, a mission was established at a place known as Mt Margaret (an area west of Laverton in the Western Australian Goldfields). It was called the Mt Margaret Mission. Its purpose was said to be that of receiving children of Aboriginal descent and giving them a Christian upbringing.
6 Then, in 1976 (according to Mr Dimer, although it seems, from the other evidence, that this occurred in 1979), Amos Inc was incorporated under the State Act at the instigation of a group of people who had stayed in the main dormitories at the Mission while they were still children. Control of the Mission was handed to Amos Inc. Membership of Amos Inc was and is open to two categories of "the Mount Margaret People", defined in cl 2 of Amos Inc's Constitution and Rules as including "the present Aboriginal residents of Mount Margaret, those Aboriginal people who were previously residents of the Mount Margaret Children's Homes (whether now resident or not), and all other Aboriginal people who regard Mount Margaret as their home". The first category comprises the Mt Margaret People "resident at Mount Margaret who accept the tenor of this Constitution and who agree to subscribe to the rules and
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- responsibilities of residents and by resolution of the [Management] Committee" (cl 5.1). The second comprises the Mt Margaret People "not resident at Mount Margaret who agree to abide by the constitution, and the Doctrine Statement and who have been accepted as members by resolution of the Committee".
7 On 1 July 1980, Amos Inc was granted a 99 year lease over the former Mission site.
8 According to Mr Dimer, who had been a pastor of the Mt Margaret community church between 1996 and 1998, Amos Inc essentially ran the Mt Margaret community. It collected rent from residents, ensured the supply of essential services such as water, power and sewerage, employed staff and "involved itself in the spiritual well being of the people".
9 Then, on 12 September 1997, the Aboriginal Movement for Outback Survival Aboriginal Corporation ("Amos AC") was incorporated as an Aboriginal corporation pursuant to s 45(1)(a) of the Aboriginal Councils and Associations Act 1976 (Cwth) ("the Federal Act"). The application for incorporation of Amos AC under the Federal Act was seemingly made by members of Amos Inc in the name of Amos Inc.
10 According to Mr Dimer, the registration of Amos AC was instigated by a Mr and Mrs Weldon (respectively the chairman of the Amos Inc Management Committee and the managing coordinator of the Mission) who obtained the signatures of 25 "Aboriginal mission people". Mr Dimer says (par 9 of his affidavit) that neither he, as the then secretary of Amos Inc, nor most of the members whose signatures were obtained "had any idea that a new organisation was in fact being registered with a new constitution". Mr Dimer said (par 10 of his affidavit) that:
"The Registrar of Aboriginal Corporations in Canberra accepted the new organisation and effectively the new organisation simply took over. In fact I attended meetings as Secretary not knowing that I was attending meetings of Amos AC. Bank accounts were simply changed into the name of Amos AC and matters proceeded as if nothing had occurred."
11 In his affidavit (par 11), Mr Dimer said that it was only in 1998 that he discovered what had happened. He said that he then came into conflict with Mrs Weldon and that he was removed from the Committee.
12 According to Mr Dimer, the effect of what has been done is that the affairs of the Mt Margaret community "are in the hands of a small group
(Page 5)
- associated with the Weldons". Under cl 8 of the constitution of Amos AC, membership of that association is limited to adult Aboriginal persons normally and permanently resident in the Mt Margaret Community (about 80 people in all, according to Mr Dimer), whereas, under the constitution of Amos Inc, the wide qualification for membership leaves membership open to approximately another 1000 people who had familial, educational or other connections with the Mt Margaret Mission.
13 Mr Ron Harrington-Smith, the Chairman of Amos Inc, has said, in an affidavit sworn by him on 22 August 2002, that, at the time of the registration of Amos AC, he was a committee member of Amos Inc. Notwithstanding this, he was not informed of the application to register Amos AC until about two years after it was acceded to. He says (par 5(b) of his affidavit) that Mrs Weldon was never authorised to lodge that application on behalf of Amos Inc and that she did not disclose to him or to many other members of the applicant her intention to do so. No resolution was ever passed by Amos Inc that it be voluntarily wound up or that its assets be transferred to Amos AC. None of the members of the applicant who applied for the incorporation of Amos AC under the Federal Act was authorised by Amos Inc to take that step. Indeed, Mr Harrington-Smith says, most of the persons who signed the application to register Amos AC had never been members of Amos Inc.
14 Mr Denis Blakeway, the Executive Officer, Associations and Charitable Collections, within the Department of Consumer and Employment Protection ("the Department"), has apparently had the carriage of the matter on behalf of the respondent. In par 7 of an affidavit sworn by him and filed in these proceedings, he has said that, on 10 March 2000, the Aboriginal Lands Trust, which granted the lease over the former mission land to Amos Inc, contacted the Department in order to ascertain whether or not Amos Inc was still incorporated under the State Act. The Aboriginal Lands Trust also advised the Department of long-standing disagreements between Amos Inc and Amos AC, in particular over a project funded by the Commonwealth through the Aboriginal and Torres Strait Islander Commission to improve the housing and infrastructure facilities at Mt Margaret. According to Mr Blakeway, the Department was also then made aware that Amos AC members resided in and managed the community, whereas Amos Inc's members tended to be former mission residents who had in the main moved to other centres.
(Page 6)
15 Attempts were made by the Department to mediate the dispute between Amos Inc and Amos AC. However, those attempts were unsuccessful.
16 The Commissioner thereafter turned his attention to s 34 and s 35 of the State Act. Those sections read as follows:
"34. Power of Commissioner to require transfer of activities
(1) Where the Commissioner is of the opinion -
(a) that an incorporated association has ceased to be an association eligible to be incorporated under this Act; or
(b) that the undertaking or operations of an incorporated association are being carried on by a body corporate incorporated under some other Act, or would more appropriately be carried on by such a body corporate,
the Commissioner may give notice to the association under this section.
- (2) If, within 3 months of the date of a notice under subsection (1), the incorporated association requests the Commissioner to transfer its undertaking to a body corporate specified in the request, the Commissioner may, by order published in the Gazette, order that the undertaking of the association be transferred accordingly.
(3) On the publication of an order under subsection (2) -
(a) the incorporated association is dissolved;
(b) the property of the association becomes the property of the body corporate referred to in the order; and
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- (c) the rights and liabilities of the association (whether certain or contingent) become rights and liabilities of the body corporate referred to in the order.
- (4) The Registrar of Titles, the Registrar of Deeds, the Commissioner, and any other person authorized by a written law to record and give effect to the registration of documents relating to transactions affecting any estate or interest in land or other property, may take cognizance of an order made under this section and is empowered to record and register in the appropriate manner such matters as are necessary to give effect to such an order.
- 35. Cancellation of incorporation by Commissioner
(1) Where the Commissioner has reasonable cause to believe that an incorporated association -
(a) has been inoperative for the preceding 12 months;
(c) has no assets and the members have resolved to discontinue the activities of the association;
(d) has resolved to wind up but no person is prepared to act as liquidator; or
(e) has not, within 3 months of notice being given to it by the Commissioner under section 34, requested the Commissioner to transfer its undertaking to another body corporate,
- the Commissioner may send, by certified post addressed to the association at the address which appears to the Commissioner to be the address of the association, and may, if he considers advertisement to be desirable, cause to be
(Page 8)
- published in a newspaper circulating generally in the State, a notice stating the ground or grounds on which it is proposed to cancel the incorporation of the association and stating that, if a reply showing cause to the contrary is not received within 2 months after the date on which the notice is sent or published, whichever is the later, the incorporation of the association will be cancelled by the Commissioner under this section.
- (2) Unless -
(a) the Commissioner is satisfied, within 2 months after the date of sending or publishing a notice under subsection (1), whichever is the later, that cause has been shown to the effect that the incorporated association -
(i) is operative;
(ii) has more than 5 members; or
(iii) does not fall within subsection (1)(c), (d) or (e);
or
(b) the Supreme Court, on the application of an aggrieved person, otherwise orders,
- the Commissioner may cancel the incorporation of the association.
- …"
(Page 9)
- response was received within that time, action might be taken to cancel the incorporation of Amos Inc.
18 The notice was sent under cover of a letter dated 7 January 2002 signed by the Deputy Commissioner for Fair Trading. That letter said, inter alia, the following:
"As you are well aware there has been considerable discussion over recent months regarding the legal ownership of an Aboriginal Lands Trust lease of the old Mt Margaret Mission site out of Laverton. Notwithstanding that dispute, it has become clear that the operations of AMOS Inc are in reality being carried on by AmosAC.
For several years, the committee of AmosAC has managed the Mt Margaret community for the residents; this has included accessing significant government grants for the improvement of both the site itself and the general amenity of the environment. These activities represent the primary objectives of AMOS Inc as set out in its constitution - yet these objectives in recent years have been pursued not through the operation of AMOS Inc but through those of AmosAC."
19 The letter went on to say that the Deputy Commissioner was accordingly of the opinion, pursuant to s 34(1) of the State Act, that the undertaking or operations of Amos Inc was or were being carried on by Amos AC, a body corporate incorporated under some other Act and that a notice to that effect was enclosed.
20 By a letter from its solicitors dated 2 April 2002, Amos Inc attempted to refute the suggestion that its undertaking or operations was or were being carried on by Amos AC. The letter also said that Amos Inc did "not request the Commissioner to transfer its undertaking as indicated in the … s 34 notice".
21 On 5 April 2002 the Department sent to Amos Inc's legal representatives a facsimile transmission drawing to their attention the fact that the three month period provided for by the notice issued under s 34 of the State Act had expired. The facsimile transmission went on to say:
"Although you have indicated that your client does not consent to the transfer of its undertaking and operations to … [Amos AC], it is in your client's interests to provide satisfactory
(Page 10)
- evidence to support its claim that the operations of AMOS Inc are not being carried on by … [Amos AC].
Whilst it is inappropriate for me to limit the sorts of evidence your clients may wish to adduce in support of its claim, I would suggest that hearsay material is likely to be insufficient. Your client should, perhaps, consider providing documentary evidence illustrating that it is meeting the objectives and purposes as set out in its Constitution."
22 Some three days later, on 8 April 2002, the Department received a bundle of documents from the solicitors for Amos Inc in support of their assertion that Amos Inc continued to meet the objectives set out in its constitution. The Commissioner concluded that those documents did not support that assertion. However, on 30 April and 1 May 2002 discussions took place between Mr Blakeway, representatives of Amos AC and representatives of Amos Inc in an attempt to resolve the matters in issue.
23 Then, on 16 May 2002, the Commissioner sent to Amos Inc a notice, under s 35 of the State Act, to the effect that it was his intention to cancel the incorporation of Amos Inc under s 35(1)(e) of the State Act because Amos Inc had not requested him to transfer its undertaking to Amos AC as required by the notice given on 4 January 2002. The notice stated that, if no reply showing cause to the contrary was received by the Commissioner within two months from the date of the notice, the incorporation of Amos Inc would be cancelled. The notice was sent under cover of a letter dated 16 May 2002 which recorded that the documents which had been provided to the Commissioner by Amos Inc had been assessed by the Department's lawyers "as not providing evidence to rebut the opinion that the association's primary objectives are in reality being carried on by … [Amos AC]".
24 On 5 June 2002 Mr Blakeway sent to Amos Inc a further letter reiterating the reason earlier given for the issue of the notice under s 35 of the State Act and pointing out that it was not a matter for the Commissioner to question the legality of Amos AC.
25 It is against that background that the order nisi was sought and obtained.
26 The grounds relied upon by Amos Inc are set out in the order nisi, as amended during the course of the hearing, as follows:
(Page 11)
- "The Respondent acted without procedural fairness, ultra vires, and in breach of the rules of natural justice in that:
(a) despite requests from the Applicant, the Respondent has failed or refused to provide particulars of the reasons for issuing the Notices; and/or
(b) the Respondent in coming to the opinion that the activities of the Applicant are being carried on by another body has failed to take into account relevant considerations in making its decision, being:
(i) The Applicant is the lessee of land Reserve 19837 containing 81.9503 hectares known as Weld Location 21 and situate within the boundaries of the Shire of Laverton at Mt Margaret ('the Land') entered into 1 July 1980 for a period of 99 years;
(ii) The Applicant is and at all material times was exercising its functions pursuant to its constitution and rules;
(iii) The Applicant is the Council pursuant to the Amos Incorporated by-laws gazetted 21 June 1991;
(iv) The Applicant is the Lessor pursuant to a number of sub-tenancies granted by the lessor to tenants who wish to reside upon the land;
(v) Pursuant to the Rules of Association of the Applicant all lands, fixtures, erections and improvements owned by the Applicant are to be transferred and vested in the Aboriginal Lands Trust upon the dissolution of the Applicant;
(vi) In the event of the cancelling of the Applicant's incorporation, the lease to the land is forfeit and nobody then has authority or power to manage and or control the land;
(vii) There is no other body corporate who can carry out the activities of the Applicant because no
(Page 12)
- other body holds any form or [sic] lease or other tenure;
- (viii) In determining that there is another body (namely the Aboriginal Movement for Outback Survival Aboriginal Corporation 'Amos AC'), which can carry out the activities of the Applicant, the Respondent has not considered the limited and restrictive membership of Amos AC; because of that Amos AC is not and cannot be representative of the Mount Margaret Mission peoples which is the principal function and activity of the Applicant.
- (c) The Respondent issued the Notices for an improper purpose, namely to cancel the incorporation of the Applicant and in order to overcome legal or procedural difficulties occasioned by the incorporation of the AMOS Aboriginal Corporation under the Aboriginal Councils and Associations Act (C'wealth) 1976."
27 Before dealing with these grounds, I should say that no attempt has been made, whether by way of an application for a writ of certiorari or otherwise, to quash the decision of the Commissioner to issue either of the two notices to which I have referred. Nor has any other attempt been made directly to attack the efficacy of either of those notices. Consequently, although the order nisi calls upon the Commissioner to show cause why a Writ of Prohibition should not be issued against him "in respect of the matters the subject of" the two notices, what, in truth, is sought to be prohibited is any act by the Commissioner to cancel the incorporation of Amos Inc because of its failure to comply with the first notice, or to show cause under the second, notwithstanding that there has been no direct challenge to the validity of the notices themselves.
28 Moreover, the application for prerogative relief is brought in circumstances in which the State Act provides its own mechanism for the making of an application, by an aggrieved person, to prevent the cancellation of the incorporation of an association. I have earlier set out the terms of s 35(2) of that Act, which provides that, unless the Commissioner is satisfied, within two months of sending a notice under s 35(1), that:
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- (a) cause has been shown to the effect that the incorporated association is operative (and I read this as referring to a case in which s 35(1)(a) has been relied upon), or had more than five members (where s 35(1)(b) has been relied upon) or does not fall within s 35(1)(c), (d) or (e) (when one or more of those provisions has or have been relied upon); or
(b) the Supreme Court, on the application of an aggrieved person otherwise orders,
29 the Commissioner may cancel the incorporation of the association. Amos Inc's application is, as I have said, limited to prerogative relief and is not expressed to rely upon s 35(2)(b). No explanation was offered as to why that should have been so.
30 Notwithstanding these shortcomings in the application, I will go on to consider each of the grounds upon which it has been brought.
The Failure to Give Reasons
31 The first of these grounds is the alleged failure to give reasons.
32 As has been pointed out by Mr Zelestis QC, who appeared on behalf of the respondent, this ground challenges the absence or sufficiency of reasons given for the issue of the notices and not the absence of adequate warning of matters which might be relied upon by the Commissioner in deciding whether or not to issue the notices.
33 So far as the first of the notices is concerned, that issued on 4 January 2002 under s 34(1) of the State Act, the notice informed the applicant that the Commissioner had formed the opinion that the activities of Amos Inc were being carried on by a body corporate incorporated under "some other Act" (an expression which seems to me to be intended to be wide enough to encompass bodies corporate incorporated under federal legislation: see s 3(1) and s 5 of the Interpretation Act 1984 (WA)). As I have earlier said, that notice was sent under cover of a letter dated 7 January 2002 signed by the Deputy Commissioner for Fair Trading, which provided additional details. Those details appear to me to have been entirely adequate. I have mentioned that the letter recorded that, notwithstanding that there had been discussion (in which representatives of the Commissioner had been actively involved) and dispute with respect, inter alia, to the legal ownership of the lease of the Mission site, it had become clear that the operations of Amos Inc were "in reality" being carried on by Amos AC. I have also mentioned that the
(Page 14)
- letter went on to say that, for several years, the Committee of Amos AC had managed the Mt Margaret community for the residents and had accessed significant government grants for the improvement of both the site and the general amenity of the environment. The letter also recorded that those activities represented the primary objectives of Amos Inc as set out in its constitution and that those objectives had, in recent years, been pursued through the operation of Amos AC rather than that of Amos Inc.
34 So far as the s 35 notice is concerned, I have mentioned that this specified that the Commissioner intended to cancel the incorporation of Amos Inc under s 35(1)(e) of the State Act as Amos Inc had not requested the Commissioner to transfer its undertaking to Amos AC as required by the notice given under s 34. As I have also mentioned, that notice was accompanied by a letter which recorded that the information which had been lodged with the Commissioner on behalf of Amos Inc had not provided "evidence to rebut the opinion that the association's primary objectives are in reality being carried on by … [Amos AC]". Nothing more was required
35 It follows that there is no substance to this ground.
The Failure to Take Into Account Relevant Considerations
36 As will already be apparent, in contending that the Commissioner failed to take into account relevant considerations in arriving at the opinion that the activities of Amos Inc were being carried on by another body, Amos Inc relied upon the matters set out in pars (b)(i) to (viii) of its amended order nisi.
37 Before turning to those matters, I should mention that there is a question, even, as regards the continued existence of Amos Inc. Counsel for Amos Inc at first contended that the application to register Amos AC was made by Amos Inc and that it consequently follows, from the operation of s 46(1)(aa) of the Federal Act, that there is now only one "incorporated association". That section provides that, upon the issue to an Aboriginal association of a certificate of incorporation under s 45, the association, if incorporated otherwise than under the Federal Act, "continues in existence by force only of this section as a body corporate". Consequently if, as was at first submitted by counsel for Amos Inc, there is in truth only one "incorporated association", then, in circumstances in which the registration and certification of Amos AC is not challenged in these proceedings, that one association may be the federally registered Amos AC and the argument is open that, by virtue of s 46(1)(aa) of the
(Page 15)
- Federal Act, Amos Inc no longer exists as a body corporate under the State Act. However, in the end, neither party wanted to contend for that result in these proceedings (there being a question whether the application to register Amos AC was, in truth, made by Amos Inc) and it is consequently unnecessary to explore the issue further. I will proceed upon the assumption, ultimately accepted by both parties, that there are two incorporated bodies, one (Amos Inc) incorporated under the State Act and the other (Amos AC) incorporated under the Federal Act.
38 It is convenient, first, to examine grounds (b)(ii) and (iii). These raise Amos Inc's contention as regards its status as "the Council" under its by-laws and its contention that it is and has been exercising its functions pursuant to its constitution and rules.
39 It is important to bear in mind, in this respect, that s 34(1)(b) speaks of the formation of an opinion, by the Commissioner, that "the undertaking or operations" of an incorporated association is or are being carried on by a body corporate incorporated under some other Act. There is, on the available evidence, no real doubt as regards the fact that Amos Inc's main undertaking or operation is the management of the former Mission site. Mr Dimer said, in his affidavit, that Amos Inc's "essential functions were the running of the Mount Margaret Community". Amos Inc's constitution and rules bear this out. Its objectives (which are set out in cl 3) relate primarily to the well-being of that community. While one of its objectives (objective (a)) is to retain the Mission site "as a home for the 'Mount Margaret People'" which, as I have said, is defined to be a considerably larger group than that eligible for membership of Amos AC, the reality appears to be that most of its work relates to persons who are actually resident in Mt Margaret. As Mr Harrington-Smith put it (in par 6(b) of his affidavit dated 15 July 2002), this dispute "concerns, inter alia, the right to speak for and manage lands and buildings at the Mt Margaret mission …".
40 Nor is there any real doubt that the management of the former Mission site has been taken over by Amos AC. Mr Blakeway said, in par 13 of his affidavit, that on 26 October 2001 representatives of Amos Inc conceded to him that Amos Inc was not involved in management of the community at Mt Margaret. I have earlier mentioned that Mr Dimer said, in his affidavit, that Amos AC, once formed, "simply took over" Amos Inc's operations and that "currently affairs of the Mount Margaret Community are in the hands of a small group" which runs Amos AC (pars 10 and 13). Mr Harrington-Smith, in a letter dated 27 May 2002 addressed to the Commissioner, has said that Amos AC "has
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- been running Mt Margaret with the help of the Police" and that Amos AC, unlike Amos Inc, has been able to "access significant government grants". He acknowledged, in this last respect, that, without money, "you cannot operate". What is really in dispute is not whether Amos Inc runs the Mt Margaret community. The evidence is clear that it no longer does so. Rather, the dispute relates to the question whether Amos Inc or Amos AC has the right to run that community. That is not something which can be resolved in these proceedings, least of all in the absence of Amos AC.
41 Moreover, it must be remembered that these proceedings are, as I have said, for prerogative relief only. They are not brought under s 35(1)(b), which gives little guidance as regards the nature of the proceedings there provided for, but which might be thought to offer something wider than merely prerogative relief. It is consequently important to bear in mind that there is no suggestion that the Commissioner overlooked Amos Inc's role under its constitution, the different membership of the two associations or Amos Inc's contentions as regards its continuing functions. Indeed, the evidence suggests that all of these things were considered by the Commissioner.
42 It follows that grounds (b)(ii) and (iii) have not been made out.
43 Next, Amos Inc relied upon its status as lessee of the Mission land (ground (b)(i)) and as lessor of various sub-tenancies granted by it (ground (b)(iv)). However, there is no suggestion that the Commissioner did not take this into account in arriving at his decision. I have twice mentioned that, in her letter dated 7 January 2002, the Deputy Commissioner referred to the fact that there had been "considerable discussion over recent months regarding the legal ownership of … [the] lease of the old Mt Margaret Mission site" before going on to say that, notwithstanding that dispute, it had become clear that the operations of Amos Inc were "in reality" being carried on by Amos AC. I have also mentioned that she referred to the fact that, for several years, Amos AC had managed the Mt Margaret community for the residents and had, for that purpose, accessed significant government grants for the improvement of both the site itself and the general amenity of the environment and that these activities had represented the primary objectives of Amos Inc.
44 There is also no basis for the contention, in ground (vii), that there is no other body corporate which can carry out Amos Inc's activities because no other body holds any form of lease or other tenure. Amos Inc refers, in this respect, to the fact that, under its rules, all land, fixtures, erections and improvements owned by it are to be transferred to the Aboriginal Lands
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- Trust upon its dissolution (ground (v)) and to the fact that, if its incorporation is cancelled, "the lease to the land is forfeit and nobody then has authority or power to manage and or control the land" (ground (vi)). These contentions overlook the statutory scheme under which the Commissioner is empowered (by s 36 of the State Act) to vest in Amos AC, as the incorporated association which is in fact carrying on the undertaking or operations of Amos Inc, the assets of Amos Inc, including the lease. Moreover, it is clear that the Commissioner did take these considerations into account - so much appears from the correspondence which is attached to the affidavits which were placed before us.
45 It follows that none of grounds (b)(i), (iv), (v), (vi) and (vii) has been made out.
46 As to ground (b)(viii), I have already said that it was not suggested that the Commissioner was not aware of the difference in eligibility for membership of Amos Inc as compared with Amos AC. I have earlier mentioned that Mr Blakeway said (in par 7 of his affidavit) that, on 10 March 2000, almost two years prior to the issue of the notice under s 34 of the State Act, the Aboriginal Lands Trust, which originally granted the lease of the Mission site land to Amos Inc, informed the Department that Amos AC's members resided in and managed the Mt Margaret community, whereas the members of Amos Inc tended to be former Mission residents who had in the main moved to other centres. Moreover, the evidence establishes (without contradiction) that Mr Blakeway was thereafter actively involved in discussions and negotiations with, and between, members of Amos Inc and members of Amos AC. This ground, too, has consequently not been made out.
Improper Purpose
47 That leaves the contention, advanced in ground (c), that the Commissioner issued the notices for an improper purpose, namely that of cancelling the incorporation of Amos Inc in order to overcome "legal or procedural difficulties occasioned by the incorporation of … [Amos AC]".
48 The submissions advanced on behalf of Amos Inc do not go so far as to suggest that the Commissioner did not genuinely arrive at the opinion expressed by him, to the effect that the undertaking or operations of Amos Inc was or were being carried on by a body corporate incorporated under some other Act, being Amos AC. The Commissioner has (quite properly) taken up the position that it is not for him to inquire into the legality of the incorporation of Amos AC (which, as I have said, is not directly
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- challenged in these proceedings or in any other proceedings, and this notwithstanding that Mr Blakeway, in his letter to Amos Inc dated 5 June 2002, said that it had repeatedly been suggested to Amos Inc that that issue should be "resolved by the Courts"). Instead, he has accepted that Amos AC is in existence as a body corporate incorporated under the Federal Act and he has considered whether or not the undertaking or operations of Amos Inc is or are being carried on by Amos AC. The only real challenge, in these proceedings, has been as regards the correctness of the opinion which he formed in that last respect. If it be accepted, as it has been, that his opinion in that respect was genuinely held (and there was no evidence which suggested otherwise), it cannot, in my opinion, be said that he has acted for an improper purpose. The bona fide formation of that opinion upon reasonable grounds was a sufficient basis for the issue of a notice under s 34 of the State Act. The failure to comply with that notice was a sufficient basis for the notice issued under s 35.
49 This ground, too, has consequently not been made out.
Conclusion
50 It follows, from the aforegoing, that I would decline to afford the prerogative relief which has been sought. I would discharge the order nisi.
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