Bouhafs, N. v Njernda Aboriginal Corporation

[1993] FCA 696

496 q3

JUDGMENT NO. .....,.......,,,,, I ,m,,,,m-

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY	No VG 337 of 1993
GENERAL DIVISION
B E T W E E N :

NOUREDDINE BOUHAFS

jAS REGISTRAR OF ABORIGINAL CORPORATION1

Applicant

A N D :

NJERNDA ABORIGINAL CORPORATION.

MR DES MORGAN, MR KEVIN WILLIAMS, MRS BARBARA DAY. MS GAIL WICKEY, MR PETER JOHNSON, MRS MARIA BLACK

AND MRS KERRIE JOHNSON

Responde~ts

COURT :  NORTHROP J

m RECEIVED

PLACE :	MELBOURNE
DATE :
--	11 AUGUST 1993

PRINCIPAL

EX TEMPORE REASONS FOR JUDGME REGISTRY

I propose not to grant an interim injun

the proposed meeting due to be held tonight. During the course of submissions certain matters were put in the course of argument which may give some indication of what I had in mind. Because of the time, it now being after 5.00 pm, I do not propose to give any lengthy reasons why I am not granting the injunction, but in substance they are these.

Difficulties arise in relation to the rules of the Njernda Aboriginal Corporation. There appears to have been a complete lack of compliance with rules ever since the corporation was	committee of the corporation appear to be ignoring completely	incorporated. Apparently nothing has been done about it. The
the rules of the corporation but again nothing, apparently, has been done about that until very recently. It appears that it is intended to hold the meeting tonight despite the fact that a number of people who have applied for membership of the corporation have not, as a result of a deliberate decision by the respondents, had their applications processed. This should have been done. As a result, this is a case where, under Aboriainal Councils and Associations Act 1976 and according to general principles, any decision of the general meeting could be declared to be void and of no effect. Accordingly no irreparable harm would be done from a legal point of view by the absence of an injunction. That is a strong reason why there should not be an interim injunction made. I use the word "interim" intentionally, as referring to an injunction made in the absence of the respondents. Although Mr Robinson has appeared today, that was more as a courtesy than anything else since there has been no application issued. He was not in a position, in reality, to bind the corporation or the other respondents.
The real difficulty of granting the injunction, in my opinion, is that there is a real risk of the injunction possibly not being observed. The Court is loathe to make orders in circumstances of this kind on short notice especially in an unusual case such as this and in circumstances where confusion may arise as to whether the injunction has been granted or not.
Whether the injunction is granted or not there are still bound to be problems arising, in this case, as to the future control and management of the corporation. It is far better not to complicate the matter further by granting an injunction in circumstances where nothing really would be gained from that injunction and which could not be achieved by the ordinary processes of the law, after an application has been served and the respondents have been heard.
I am prepared to give directions for short service of the application if so desired, and to make the return date of the application 10.15 am on 17 August for the first directions hearing. If need be, I could have the matter mentioned before me at 2.15 pm tomorrow to make orders as to short service and as to the method of service.
I should also indicate that I would have no objection if the information could be conveyed to the corporation and to the other respondents by facsimile to the two facsimile numbers
mentioned, being those of the Public Officer and the solicitors, respectively, that on the material before the Court
there appears to have been grave and serious breaches of the rules of the corporation and that the only reason that an injunction has not been granted is because of the shortage of time and the fact that whatever is done at the meeting will not finally determine the matter. This case could result in lengthy and expensive litigation, unless good sense prevails. All members and potential members, at the present time, should
be able t o participate i n the decis ions t o be made i n t h i s matter.
I c e r t i f y that t h i s and the preceding three ( 3 ) pages are a true copy of the E x Tempore Reasons for Judgment o f The
Honourable M r Just ice R.M. Northrop.
Associate: &c$-