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Clark-Ugle v Clark

Clark-Ugle v Clark

Case [2016] VSCA 44 17 March 2016

Jurisdiction

Judicial Review

Statutory Interpretation

Frustration of Contract

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0006

GEOFFREY (POSSUM) CLARK-UGLE	Applicant
v
AARON CLARK, JEREMY CLARK and TIM CHATFIELD	Respondents
MINISTER FOR ABORIGINAL AFFAIRS	Intervenor

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JUDGES:	TATE, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 July 2015
DATE OF JUDGMENT:	17 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 44
JUDGMENT APPEALED FROM:	[2014] VSC 642 (Sifris J)

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ADMINISTRATIVE LAW – Validity of general meeting of the Framlingham Aboriginal Trust where a quorum not present – Requirement for a quorum is one-half of the persons entitled to vote at the meeting who are residents of the reserve on the day the meeting is called – Whether Supreme Court has the power under the Aboriginal Lands Act 1970 to dispense with the quorum requirement – Whether Court’s discretionary power enlivened in the circumstances of the case – Frustration of previous orders of the Court – Different judge made supplemental orders – Orders take effect as orders of the Court – Whether rights under the Charter of Human Rights and Responsibilities affected – Aboriginal Lands Act 1970, ss 23(4) and 27 – Charter of Human Rights and Responsibilities, ss 19(2)(d) and 32(1) – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr E N Magee QC with Mr M J Corrigan	Stephen Peter Byrne, Lawyer
For the Respondents	Mr D M Ryan QC with Mr T Greenway	Shayne Daley & Associates
For the Intervenor	Mr A C Neal QC	Victorian Government Solicitor

TATE JA:

TABLE OF CONTENTS

Introduction and summary ......................................................................................... 1

The statutory scheme ................................................................................................... 4

Complaint before Robson J about conduct of meeting of 16 December 2013 ....... 11

The application before Sifris J on 1 October 2014 ……………………………...… 23

The meeting of 10 November 2014 and the return before Sifris J on 1 December 2014 ……………………………………………………………………………….…....
24

Grounds of appeal ........................................................................................................ 30

Does s 27 give the Court power to declare a meeting valid in the absence of a quorum? ..........................................................................................................................
32

Was the power under s 27 enlivened before Sifris J? ……………………………... 44

Did the discretion miscarry? ………………………………….…………………….. 54

Were Charter rights affected? ……………………………………………………..... 56

Conclusion ……………………………………………………………………………. 59

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Introduction and summary

This matter raises the question of whether the Supreme Court can make orders dispensing with a quorum requirement prescribed by statute for a general meeting of the Framlingham Aboriginal Trust (‘the Trust’). It also raises the secondary question of whether, if the Court has the relevant discretionary power, it was enlivened in the circumstances of the case.

The questions arise in the context of an application for leave to appeal from orders made by a judge of the Trial Division of this Court (Sifris J)[1] in relation to the exercise of powers under the Aboriginal Lands Act 1970 (‘the Act’) in a dispute involving the operation of the Trust which administers the Framlingham reserve (‘the reserve’)[2] in South Western Victoria. The issue before Sifris J was whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark-Ugle v Clark

Details

AGLC: Geoffrey (Possum) Clark-Ugle v Aaron Clark, Jeremy Clark and Tim Chatfield and Minister for Aboriginal Affairs [2016] VSCA 44
Case: [2016] VSCA 44
Decision Date: 17 March 2016

CaseChat Overview and Summary

In the case of Clark-Ugle v Clark, the dispute involved the validity of a general meeting of the Framlingham Aboriginal Trust, where the required quorum was not present. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the Supreme Court had the authority to waive the quorum requirement under the Aboriginal Lands Act 1970, which mandates that one-half of the persons entitled to vote at the meeting, who are residents of the reserve on the day the meeting is called, must be present for a quorum. The court also had to determine if the discretionary power of the Court was engaged in the circumstances of the case, particularly in light of frustration of previous orders of the Court and different judges issuing supplemental orders. Additionally, the court considered whether the rights under the Charter of Human Rights and Responsibilities Act 2006 were affected.

The court's reasoning focused on the statutory requirements and the discretionary powers available to the Court under the Aboriginal Lands Act 1970. The court examined sections 23(4) and 27 of the Act, which outline the quorum requirements and the Court's powers to make orders, including supplemental orders. The court concluded that the requirements for a quorum were mandatory and could not be waived by the Court. Furthermore, the court held that the discretion to make supplemental orders was not activated in the circumstances of the case, particularly as it did not lead to a frustration of the previous orders of the Court. The court also considered the impact on the rights under the Charter of Human Rights and Responsibilities Act 2006, finding that the orders did not contravene the Charter. Ultimately, the court dismissed the appeal and granted leave to appeal.

The final orders of the court were to dismiss the appeal and grant leave to appeal, affirming the earlier decision regarding the validity of the meeting and the authority of the Court to issue supplemental orders. The court's decision underscored the importance of adhering to statutory requirements and the limited scope of the Court's discretionary powers in this context.

Orders