David v Johnson

[2002] FCA 1161

FEDERAL COURT OF AUSTRALIA

David v Johnson [2002] FCA 1161

ABORIGINES – aboriginal corporation – winding up – representative body – loss of representative status – application for review of unspecified decisions of ATSIC Regional Manager – applicant lacking standing – application not viable on the face of it – application frivolous and vexatious – application dismissed.

PRACTICE AND PROCEDURE – application frivolous and vexatious – no reasonable cause of action – applicant lacks standing – first directions hearing – application dismissed of Court’s own motion.

(FRANK) PETER DAVID v MR BARRY JOHNSON, REGIONAL MANAGER OF ATSIC WA
W250 of 2002

FRENCH J
13 SEPTEMBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W250 OF 2002

BETWEEN:	(FRANK) PETER DAVID APPLICANT
AND:	MR BARRY JOHNSON, REGIONAL MANAGER OF ATSIC WA RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	13 SEPTEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W250 OF 2002

BETWEEN:	(FRANK) PETER DAVID APPLICANT
AND:	MR BARRY JOHNSON, REGIONAL MANAGER OF ATSIC WA RESPONDENT

JUDGE:	FRENCH J
DATE:	13 SEPTEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 22 August 2002, an application was filed in this Court naming (Frank) Peter David as applicant and Barry Johnson, the Regional Manager of the Aboriginal and Torres Strait Islander Commission (ATSIC) in Western Australia as respondent. It comes before the Court today for first directions.  In my opinion, however, the application should not be allowed to proceed further.

2. The claim was stated thus:

   “On the grounds stated in the accompanying statement of claim the applicant claims:

   That the decisions made by Mr Barry Johnson be revoked because they breach the ATSIC Act of 1989.  Causing us the Noongar people a lot of problems, the full extent of our complaint to the Federal Court is listed in the affidavit I present to the Court.”

   There was no statement of claim and the decisions complained of are not identified in the claim. 

3. There is also a claim for interlocutory relief in the following terms:

   “An injunction is sought by myself on behalf of the Aboriginal Corporations for the return of assets they have ceased by stealth and without permission of the Noongar Land Council membership.

   The registrar Jan has erred in his findings because the Grants controller Walker and Wayland Accountant’s report on the financial affairs of the Noongar Language and Culture Centre was never considered by him when he reached his decision, based on insolvency of NLCC and a deficiency that was alleged by the administrator, Mr Shiavi was never substantiated.

   Mr Barry Johnson’s affidavit proves that he has breach the ATSIC Act of 1989, and therefore his decision be revoked by the Court as it is illegal to do what Mr Johnson has chosen to do.  The registrar has not taken this important breach that is clearly identified into consideration when he handed down his decision.  So we want his decision stayed and a proper hearing into this matter be heard by this Court and relief be granted by form of an order of the Federal Court.”

   There is a supporting affidavit from Mr David.  It exhibits minutes of a special general meeting of the Noongar Land Council held on 13 July 2002, an extract from the Aboriginal and Torres Strait Islander Commission Act 1989 and a copy of a decision by District Registrar Jan winding up the Noongar Language and Culture Centre Aboriginal Corporation on the application of the Registrar of Aboriginal Corporations. 

4. The District Registrar’s decision was made on an application by the Registrar of Aboriginal Corporations under ss 62A and 63(2)(d) of the Aboriginal Councils and Associations Act 1976 (Cth). Reliance was also evidently placed upon s 63(2)(h), the just and equitable ground. Mr David appeared at the directions hearing in relation to that application on 4 July 2002 and made various submissions as to why a winding up order should not be made. No formal leave was granted to him to appear or to oppose the application. The question of his continued appearance was stood over to the hearing of 24 July 2002. At that time the District Registrar decided Mr David lacked the requisite standing and that, in any event, he had not complied with the provisions of s 465C of the Corporations Act and r 2.9 of the Corporations Rules which apply to the winding up of any incorporated Aboriginal Association (s 67 Aboriginal Councils and Associations Act 1976). 

5. A Mr Robin Yarran also sought leave to oppose the application before the District Registrar, but that leave was not granted.  After considering various affidavits filed in the proceedings, the District Registrar was satisfied that ATSIC had issued a demand, dated 4 June 2002, for the sum of $218,000 addressed to the Administrator of the Noongar Language and Culture Centre Aboriginal Corporation.  The District Registrar found, as a matter of necessary implication from the evidence before him, that the Corporation had neglected to pay and had not secured or compounded the amount demanded to the reasonable satisfaction of ATSIC.  There was clear evidence the amount had not been paid and was still outstanding at the date of the hearing.  He was also satisfied that the liabilities of the defendant corporation exceeded its assets by at least $290,000.  He found:

   “It is quite apparent that the Defendant is insolvent.”

   On that basis he made a winding up order.

6. In his affidavit, Mr David claimed to be acting on instructions received from the meeting of the Noongar Land Council of 13 July 2002 which were exhibited to his affidavit.  He said he had issued a letter of demand to the South West Land and Sea Council to return assets of the Noongar Land Council within seven days.  This request had been ignored.  The nature of the assets was not identified in the affidavit except for a reference to “…documentation including Anthropological reports and other materials … taken without consent.” 

7. There was a reference in the affidavit to Mr Johnson, the named respondent, having “… acted quite deliberately to liquidate the Noongar Language and Culture Centre”.  The affidavit referred to “… dictatorial conduct based on illegal behaviour and practiced with arrogance…” which seems to have been a reference to some behaviour on the part of Mr Johnson.  The last paragraph of the affidavit read:

   “I appeal to the Hon Court to please hear out grievances into this serious breach of our rights under the ATSIC Act of Parliament that has been passed to ensure the protection of our rights.  These decisions that effect us in such a manner as to ATSIC seeking to destroy the Noongar culture language and traditions, and any self determining right we may have legally.  Therefore, we seek the Courts protection from these unconscionable acts of ATSIC administrator of our affairs in Noongar Land and for directly winding up our culture centre.” (sic)

8. Taken as a whole, the affidavit made little sense.  It seemed to be based upon complaints related to the winding up of the corporation and the loss by the Noongar Land Council of status as a representative body under the Native Title Act 1993 (Cth) in favour of the South West Land and Sea Council. The connection, if any, between the Noongar Land Council and the Corporation does not appear from the papers.

9. The application discloses no basis upon which the jurisdiction of the Court can be invoked, nor any basis upon which Mr David has standing to bring the application.  Mr David invites the Court to assist him because he is unrepresented.  The Court is unable to provide legal advice.  Its role is to decide cases which are brought before it.  The application is not viable.  On the face of it, it is frivolous and vexatious.  It should be dismissed.

10. Mr Johnson was not represented, but Mr Carey appeared by leave on behalf of ATSIC.  There will be no order as to costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Acting Associate:

Dated:              September 2002

Mr P David appeared on his own behalf.
Counsel for the Aboriginal and Torres Strait Islander Commission:	Mr T Carey by leave.
Solicitor for the Aboriginal and Torres Strait Islander Commission.	Australian Government Solicitor
Date of Hearing:	13 September 2002
Date of Judgment:	13 September 2002