Durri Aboriginal Corporation Medical Service v Registrar of Indigenous Corporations
[2014] FCA 1439
•23 December 2014
FEDERAL COURT OF AUSTRALIA
Durri Aboriginal Corporation Medical Service v Registrar of Indigenous Corporations [2014] FCA 1439
Citation: Durri Aboriginal Corporation Medical Service v Registrar of Indigenous Corporations [2014] FCA 1439 Parties: DURRI ABORIGINAL CORPORATION MEDICAL SERVICE v OFFICE OF THE REGISTRAR OF INDIGENOUS CORPORATIONS File number: NSD 1373 of 2014 Judge: WIGNEY J Date of judgment: 23 December 2014 Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Federal Court Rules 2011 (Cth)Date of hearing: 23 December 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 23 Counsel for the Applicant: Alan Hands Solicitor for the Applicant: Kaizen Synergy Law Firm Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1373 of 2014
BETWEEN: DURRI ABORIGINAL CORPORATION MEDICAL SERVICE
ApplicantAND: REGISTRAR OF INDIGENOUS CORPORATIONS
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
23 DECEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The prospective applicant pay the prospective respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1373 of 2014
BETWEEN: DURRI ABORIGINAL CORPORATION MEDICAL SERVICE
ApplicantAND: REGISTRAR OF INDIGENOUS CORPORATIONS
Respondent
JUDGE:
WIGNEY J
DATE:
23 DECEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The prospective applicant in this matter, Durri Aboriginal Corporation Medical Service (Durri), is a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the Act). Durri has filed, pursuant to r 7.01 of the Federal Court Rules 2011 (Cth), an urgent application before the commencement of proceedings seeking certain injunctive relief against the Registrar of Indigenous Corporations (the Registrar). The Registrar is appointed and has duties and responsibilities under the Act in relation to corporations registered under the Act (ATI corporations).
The effect of the injunctive relief sought by Durri is to restrain the Registrar from doing three things: first, requiring Durri to produce a list of names of members of Durri by 23 December 2014; second, issuing a notice of an annual general meeting (AGM) to members of Durri; and third, holding an AGM of Durri by the end of January 2015.
For the reasons that follow, there is no basis for restraining the Registrar from doing any of these things. Durri’s application accordingly must be dismissed.
Section 180-1 of the Act provides that an ATI corporation is required to set up and maintain a register of members. An ATI corporation commits an offence if it does not do so: s 180-1(2). Under s 180-25, any person has a right to inspect an ATI corporation’s register. If a person asks for a copy of the register and pays any fee required by the corporation, the corporation must provide a copy within seven days, failing which it commits an offence.
Section 453-5 of the Act makes provision for the production of books to the Registrar. The Registrar may, by notice in writing, require an ATI corporation to provide books of the corporation to the Registrar. A person who fails to comply with such a notice commits an offence: s 453-5(5).
On 8 December 2014, the Registrar served a notice on Durri requiring it to produce its current register of members within 14 days. Durri effectively seeks to restrain the Registrar from acting on this notice. The only reason or basis put forward by Durri for challenging this exercise of power by the Registrar is that the requirement to produce the register is related to the Registrar’s calling of an AGM of Durri, which Durri does not want to be held. Even if there was some basis for restraining the meeting – and as will be seen, there is not – this would still provide no reason for restraining the Registrar’s exercise of power and discretion under the Act to require production of Durri’s register.
Accordingly there is no basis for the injunction sought in paragraph 1 of Durri’s application.
Paragraphs 2 and 3 of Durri’s application seek to restrain the Registrar from calling and holding an AGM of Durri.
Section 201-150 of the Act provides that a corporation must hold an AGM within five months after the end of its financial year.
Durri’s rule book, which has been formulated and accepted by the Registrar under the Act, provides that Durri’s annual general meeting must be held before 30 November each year. Rule 4.2 of the rule book provides for the business that is to be conducted at the AGM. It provides as follows:
The AGMs are for:
Ÿconfirming the minutes of the previous annual general meeting;
Ÿpresenting annual reports: general, financial, directors’;
Ÿappointing directors in accordance with rule 5.5;
Ÿthe appointment and remuneration of the auditor (if any);
Ÿchecking the register of members and former members; and
Ÿasking questions about management of the corporation and asking questions of the corporation’s auditor (if any) of which notice has been provided about how the corporation is managed.
Durri did not hold an AGM before 30 November 2014. A meeting was apparently convened but was ultimately adjourned before any of the business required by the rule book to be conducted was in fact conducted.
Section 439-15(1) of the Act provides as follows:
The Registrar may call and arrange to hold an AGM of an Aboriginal and Torres Strait Islander corporation if the corporation has not held the meeting as required by section 201-150 or 201-155.
On 8 December 2014, the Registrar wrote to Durri and advised that he intended to call an AGM of Durri. This was the subject of further correspondence between the Registrar and Durri, the upshot of which was that by mid-December 2014 the Registrar confirmed his intention to call such a meeting. Notices have now apparently issued.
The basis upon which Durri seeks to restrain the issuing of a meeting notice, which has already occurred in any event, and the holding of an AGM, is that in its submission a special administrator should be appointed to Durri.
Under s 487-1 of the Act, the Registrar may put an ATI corporation under special administration. Section 487-5 provides the grounds for determining if a corporation is to be put under special administration. On this application Durri relies on s 487-1(1)(h), which provides that a ground for appointing a special administrator is that a majority of the corporation’s directors have requested the Registrar in writing to appoint a special administrator.
The problem for Durri is that it has not satisfied s 487-1(1)(h). A majority of Durri’s directors have not requested in writing that the Registrar appoint a special administrator. This was pointed out to Durri by the Registrar, both by public announcement and in private correspondence. It has not been suggested to the Registrar that there are any other grounds for appointing a special administrator.
In any event, even if there were grounds to appoint a special administrator, the appointment is a matter for the discretion of the Registrar. The Registrar here has obviously decided not to appoint a special administrator. No basis for intervening in the exercise of that discretion has been shown by Durri.
Even if there were grounds for appointing a special administrator, that would not in any event provide a basis for restraining the Registrar from acting pursuant to the Act to require the holding of an AGM. The holding of an AGM is both mandatory under the Act and important.
The business to be conducted at an AGM includes considering and approving annual reports and financial statements and the appointment of directors. It would be a matter of legitimate concern to the Registrar if, as here, an ATI corporation fails to hold an AGM. It is understandable that the Registrar would decide to call an AGM whatever the reasons might be for the failure.
No reason has been shown for disturbing the Registrar’s exercise of power or discretion to call an AGM of Durri.
Durri has, in its evidence and submissions, drawn attention to various complaints or disputes, or apparent disputes between various directors and members of the corporation. These matters are said to explain why the proposed AGM in November was adjourned and why a special administrator should be appointed. Even if that be so, they do not provide a proper basis for disturbing the Registrar’s exercise of power to call the meeting. Accordingly Durri’s application must be dismissed.
It appears that Durri originally intended that this application would be heard ex parte. As events transpired, the Registrar received some notice of the application and appeared, by a solicitor, and made submissions opposing the application. It should be emphasised that it would have been wholly inappropriate for this matter to proceed ex parte. Durri has been on notice of the Registrar’s requirement to produce the register and his intention to call an AGM at least since mid-December. No adequate explanation for the delay in bringing the application has been proffered.
Durri should pay the Registrar’s costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 23 December 2014
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