Bond Lod Pty Ltd v Bokal-Nee Aboriginal Corporation

[1985] FCA 426

IN THE MATTER OF BOKAL-NEE

ABORIGINAL CORPOFATION

ANI3 IN THE KqTTER OF THE

ABORIGINAL COUNCILS AMD

ASSOCIATIONS ACT 1976

BETWEEN : BOND LOD PTY LIMITED trading as TAYLOF.'S KARDbIARE

Petitloner

- AND : BOKAL-NEE ABORIGINAL CORPORATION

Pespondent

MIPJUTE OF CPDEF.S

2 . The cc3stz of 15 August 1085 are reserved.

MOTE :

Settlement and entry af orders is dealt with in

Order 36 of the Federal Court Rules.

!NOTE: This j u d q e n t re la tes predominant ly t o i t s n%m f a c t s and

1 s n o t n f s u f f i r l m t g e n e r a l i n t e r e s t t o ~ ~ ~ s t i f y c i r c u l a t l n n r

IN THE F DEP.AL COURT OF AUSTRALIA 1 1

NEW SOUTH	GJALES	DISTPICT REGISTRY	>	FJo.	G . 140 of	1985
I

GENEFAL DIVISION )

I N THE MATTER OF BOKAL-NEE

ABORIGINAL CORPORATION

AND I N THE MATTER OF THE

ABORIGINAL COUNCILS AND

ASSOCIATIONS ACT 1976

BETGIEEbJ :	BOND LfiD FTY LIMITED
t r a d l n q as T.F-YLOR'S
HRPDWARE

P e t i t i o n e r

Fespondent

'

L.

li-ted on 11 .July 1985 vhen I acceded to an application for an

adlournment made 57 the sollcitor for the corporation. He had

but recently been instructed and indicated that rneetlng was

to be held upon the followmg day at which It was hoped that

an internal dispute would be resolved and that in the llqht of

the resolcltlon of that dispute it would be possible to pay out

the petitioning credltor and various other trade cr ditors.

Unfortunately, that event has not occurred. The

meeting was, in fact. held on l?. July; and at that, meetina

various persons were elected	as office bearers of the Muli
.Aboriginal Land Councll.

However, there is a dispute as to the validity of

those elections. The North Cmst Reglonal Aborlqlnal L m d

'Zouncll recognized the validlty of the election of ,Ce:'tain

peopl? at a meetlnq whlch took place or. 2 2 June 196'85. It,

apppars to be the unhappy fact that there is a serious dispute

amonust the people entitled to vote fcr elections for the Muli

Aborlulnal Land Council. and lt has not been possible t?

resclve rhls dispute so far.

corporation inter alia for the payment of trade debts. It

seems to be clear that a sum of that amount vould be

sufflcient to defray the trade debts of the corporation, althouqh I should add that there are other moneys owned by the

corporation, includinq $82,024 claimed to be owing by the Mull

-9borlginal Land Councll itself.

One of the matters in issue m the dispute wlthin the

Mull Aborlginal Land Council appears to be the question whether or not that council should provide funds for the

corporation. It appears that the registrar has attempted to

conciliate the difference within the local community, but

unsuccessfully, and the matter has now been referred to the

Land and Environment Court. That court, under s.59 of the

.%orlmnal Land Ricrhts Act (M.S.W.), has wlde powers: and It

appears to me that the court has the	power to resolve or cause
to be resolved the dlsFute.

Application has been made for a further adjournment

of the matter for a perlod of three months. This application

1 s cpposed, counsel for the petitioning creditor seekinu an

lmmedlate mndinq up order. The amount owna to nis client 1 s

$994 but in sddition he appears for f ive s~uppcrtin~ rrFditnr5

whose tqtal claims mount to $ 7 . 7 2 0 . 3 s he pointz out. hls

clients have been waiting f o r a considerable time fcr payment

of thelr debts, -.;hich are trade debtc.

4.

I have considerable Eympathy with the position of thr

trade creditors. From their polnt of view it is most

unfortunate that straightforward claims for trade debts should.

be delayed because of a dispute within the Aboriginal

community itself as to the course whlch wlll be taken in

respect of moneys recelved by the Land Council and perhaps

because of personality conflicts. On the other hand. it would

appear to me most unfortunate if the corporation had to be

wound up in order to secure payment of what are relatively

small sums of money without giving to the community a full

opportunity of resolving the internal problems. I do not mean

by this that an indefinite opportunity should be qrar.ted.

Indeed, I am of the opinion that the current adjournment

should be the last adjournment qiven in the matter.

The cmrse that I propose to take is tg adjourn the

flJrther hearinu of the petltlon for 3 Ferlcrd of about two

months. I expect that Immediate steps wlll be taken b17 the

sollcltor for the corporatlon to spply to the Land and Envlronment Court for the earllest possible hearinq date af the reference to that cTurt by the reuistrar. it is. in m17

opinion. vital that, the court address itself tc, the

substantive matter at ths earllest poszible dat-S. I -muld

think lt extremely probable chat if the fact. were put before

the Land and Environment Court a very early hearin7 dat? could

be made avallable so that vhate-Jer grdlrs	ar? t o be ackc?.ined
rmld be ,chtalned.

5.

It will be of critical importance that the mmbers of

the Aboriginal community themselves reallze that this is the last opportunity for them to resolve their problems If they wish to retain the .Aboriginal corporation. The Aboriginal

corporation and the arrangement with the Muli Land Council

cannot survive !unless there is some co-operatlon between the

people involved. If the local Aboriginal community cannot

work out its own problems, then there is no choice given to

this Court but to make such orders as are necessary to wind up

thelr affairs and at least	o enable the trade creditors	to be
pald out.

I wish to make it quite clear that a further

application in two months time upon the basis that the dispute

has not yet been resolved wlll be unlikely to be recelved

spmpathetlcally. In my view, I t 1 s not beyond the capaclty of

the people lnvolved to work out a method of resolving this

problem, with the assistance of the Land and Environment Court

or otherwise, sa as to ensure that the trade creditors are not

longer delayed. I hope that the messacre will be handed back

to thnse cmcerned that this 1 s the last chance to resolve the

situatlon.

I propose to adjourn the further hearing 3f the

matter unTll Friday le. October at ?.?c1 a.m., and I viil

reserve the cgsts ,of today.

6.

Mr Neumann. I have expressed that as clearly as I

can. Would you pass on to those whom you represent chat it is

meant. It would be quite Intolerable to further frustrate the

recover:? of leptimate trade debts.

I certify that this and the five ( 5 )

precedin? pages are a trlle copy of

the Reasons for Judgment herpin of

his Honour Mr. Justice Wilcox.

Associate:

Date : 29 August 1985

Counsel for the petitioner: Mr B M Green

Solicltors for the petltioner: Messrs D M Jones & Associates

Appearance f o r the respondent: Mr E Neumann, Solicitor

Sollritors for the respondent:	Messrs Eavid Landa, Stewart
& CO
Date(s! of hearmu:	15 August 1985