Deeral Aboriginal & Torres Strait Islanders Corporation v Bouhafs, Noureddine

[1997] FCA 238

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY  No  QG 8 of 1997

GENERAL DIVISION

BETWEEN:DEERAL ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION

Applicant

AND:NOUREDDINE BOUHAFS

Respondent

CORAM:                   Spender J
PLACE:  Brisbane
DATE:  20 March 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The motion for discovery filed 18.3.97 in the principal application be dismissed.

1. In relation to the second limb of the application of the Administrator filed 20 January 1997, Ian David Jessup be empowered and directed to call a meeting of the Deeral Aboriginal and Torres Strait Islanders’ Corporation.  The members of the Corporation be permitted at that meeting to consider, if they should so think fit, the election of members to fill offices on the governing committee of that Corporation.

1. The application otherwise be dismissed with no order as to costs.

THE COURT GRANTS liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY  No  QG 8 of 1997

GENERAL DIVISION

BETWEEN:DEERAL ABORIGINAL AND TORRES STRAIT ISLANDERS CORPORATION

Applicant

AND:NOUREDDINE BOUHAFS

Respondent

CORAM:                   Spender J
PLACE:  Brisbane
DATE:  20 March 1997

REASONS FOR JUDGMENT

I am presently dealing with the question of whether there will be general discovery, at the instigation of the decision maker, in relation to, first, an application for judicial review of a decision by the Registrar of Aboriginal Corporations (‘the Registrar’), declining to call a special general meeting of members of the Deeral Aboriginal and Torres Strait Islanders Corporation, (a corporation pursuant to the Aboriginal Councils and Associations Act 1976 (Cth) (‘the ACA Act’), being a corporation that is subject to a deed of company arrangement), and second, whether there ought to be general discovery in respect of a separate aspect of that application, being an application by the administrator under that deed for directions pursuant to s 447A and 447D of the Corporations Law as applied by s 62 of the ACA Act to aboriginal councils under that Act.
           It is convenient to deal first with the question of whether there ought to be orders for general discovery in relation to the application for judicial review.  There is of course power on such an application to order discovery, but it is not common  and such an order would only be made where the circumstances require it.

An application under the Administrative Decisions (Judicial Review) Act 1977 (‘the ADJR Act’) is not a review on the merits but is an inquiry to determine whether alleged legal error has been established. In those circumstances, it will be rare that documents which might become available after an order for general discovery will have a relevance to judicial review of the decision. Generally, the question of whether legal error has been committed by a decision maker is to be determined by looking at the terms of any relevant decision or any relevant legislation (including secondary or subsidiary legislation) and the materials before the decision maker at the time the decision sought to be impugned was made.

In this particular case, there seems to be an unfortunate attitude, both on behalf of the Registrar and on behalf of the Administrator.  Each of them seems more concerned about creating problems than with solving them and with pointing the finger at the other as being the person of primary responsibility for whatever is the matter in contention.  Be that as it may, it seems to me that this is clearly a case where general discovery is neither necessary nor required in the interests of justice and I will not order discovery in relation to the application for judicial review.

In relation to the question of what, if any, orders ought to be made by the court pursuant to the provisions of the Corporations Law (‘the Law’) in the light of the circumstances that are before the court, those orders seem to me to be matters that the court is concerned about in its supervisory jurisdiction pursuant to the Law. The matters are not truly adversarial, although relevant facts have to be put before the court to assist it in the orders that it should make in carrying out the purposes of the Law.

It seems to me that an order for general discovery is not necessary for that to occur, nor do the circumstances in this particular case suggest that general discovery should be made in that aspect of the matter either. It may be that there is a bit of pride involved on both sides in relation to whether or not, as a matter of legal reality, any decision ought to have been made pursuant to s 58B of the ACA Act. As a matter of practical reality, the important thing is to one way or the other get this matter back on track.

Section 447A(1) of the Law provides that:

“  The Court may make such order as it thinks appropriate about how this Part is to operate in relation to a particular company.”

The words "how this Part is to operate" were interpreted by Young J in Cawthorn v Keira Constructions Pty Ltd (1994) 13 ACSR 337 at 341 to mean that the court should, in its supervisory capacity, ensure not only that secured creditors were not prejudiced, but that the court should use its supervisory powers to tailor-make a procedure for each company so that the spirit and objects of the Parliament would be implemented. The words of the section , of course, are very wide.

Having regard to the objects of Part 5.3A, it seems to me to be within power to direct an administrator to call a meeting of members of a corporation under the ACA Act for the purpose of permitting the members, if they think fit, to elect a governing committee of the corporation, in the present circumstances where all the members of the former governing committee have resigned and there is no secretary of the corporation. Moreover, the Deeral Aboriginal and Torres Strait Islanders Corporation (‘the Corporation’), has not as yet held an annual general meeting, which was due to take place in November 1996 and at which, in the ordinary course of events, an election of members of the governing committee would be held.

The circumstances in which the court is asked to make this order arise out of a dispute between the administrator pursuant to a deed of company arrangement of the Corporation and the Registrar. In November 1996, by letter undated but which bears facsimile dating of 23 December 1996, the Registrar declined to exercise his discretion to call a special general meeting under the provisions of s 58B of the ACA Act.

There is a clear difference of opinion as to the powers of the Registrar and, in addition to the power, the manner in which discretions conferred on the Registrar by the ACA Act should, in the circumstances then prevailing, be exercised. The Registrar contends that, as a matter of discretion, he would decline to call a general meeting under s 58A of the Act because "there is nothing I can achieve at such a meeting which the members themselves cannot achieve in accordance with the Corporation's rules".

Later material from the Registrar suggests that he was of the view that the Administrator could himself call a meeting so that the members might, if they thought fit, appoint members to a governing committee.  A great deal of time and expense has been incurred in relation to the question of whether legal error tainted the decision by the Registrar in December 1996 declining to call a general meeting.  Part of that was the exacerbation by a motion recently filed seeking general discovery in respect of a considerable number of documents more specifically referred to in an affidavit of the Registrar filed 14 February 1997.

For reasons which I have previously given, I think that an order for general discovery should not be made.

In relation to the second limb of the application of the Administrator, filed on 20 January 1997, the application sought directions pursuant to s 447A of the Law. It seems to me appropriate that I make an order empowering and directing Ian David Jessup to call a meeting of members of the Corporation and to permit the members of the Corporation at that meeting to consider, if they should so think fit, the election of members to fill offices on the governing committee of that Corporation. Notwithstanding that that order was not sought in the application, it is desirable in the interests of the administration of the company under the deed of arrangement.

This order was not objected to by counsel on behalf of the Registrar, and it seems to me wholly consistent with the objects of Part 5.3A of the Corporations Law that such a direction should be made in the circumstances of the present acrimony between Mr Jessup and the Registrar.  That would have the further advantage, it seems to me, of rendering sterile and academic the question sought to be agitated by the first limb of the application filed 20 January 1997, although my present intention is merely to adjourn that application and determine whether anything further ought to be done in respect of it.

I should say, lest there be any doubt, that the order of the court empowering and directing Mr Jessup to call a meeting of members of the Corporation and, if thought fit by the members, for the members to elect persons to fill the offices on the governing committee of the Corporation, includes with it the power for the second applicant to determine on material which he considers sufficient whether a person claiming to be a member of the Corporation is in truth a member of that Corporation.

It is necessary to make that observation having regard to the materials which suggest that, as a result of a fire in mid-1996, much of the documentation, if not all of it, relating to the membership of the Corporation was destroyed by fire.

How and when Mr Jessup exercises the power granted to him by virtue of the order made by the court is a matter for him to determine.  I would anticipate that one possible option would be to place a public advertisement asking persons who claim to be members of the Corporation to attend at a meeting, suggesting that they bring proof of membership if they have such proof, and for him to satisfy himself as to each person’s entitlement to be a voting member at that meeting.  He has to do the best he can in difficult circumstances in that respect.

That concludes the reasons that I want to give in relation to that aspect of the matter.

It seems to me that, in the light of that order, the principal application is academic.

There are, of course, questions of costs.

I have not embarked on a resolution one way or the other of the contentions of the application of the ADJR Act to the original decision. The order that I make is not one which was sought by the second applicant in the application filed on 20 January 1997. My present intention would be to dismiss that application, but to order that there be no order as to costs to either party.

I order that that application be otherwise dismissed. I interpolate to say it should be clearly understood that I have not made any determination one way or the other as to the application of the ADJR Act to the decision of the Registrar of Aboriginal Corporations. In the light of the submission of counsel for the respondents on the motion for discovery that the costs should lie where they fall, the court will make no order as to costs. I grant liberty to apply.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date:  20 March 1997

Counsel for the applicant         :          Mr J A Logan

instructed by  :          McCullough Robertson, town agents for Petersen McCullough Robertson

Counsel for the respondent     :          Ms C E Holmes

instructed by  :          Australian Government Solicitor

Date of hearing  :          20 March 1997