Fisher v Ipswich Regional Aboriginal & Torres Strait Is Corp for Legal Service

[1995] QSC 269

IN THE SUPREME COURT
OF QUEENSLAND

Writ No. 1593 of 1995

Brisbane

Before the Hon. Justice Mackenzie

[Fisher v. Ipswich Regional Aboriginal & Torres Strait Is. Corp. for Legal Service & Ors]

BETWEEN:

NUGENT ALLAN FISHER
  Plaintiffs

AND:
  v.

IPSWICH REGIONAL ABORIGINAL & TORRES STRAIT ISLANDER
  CORPORATION FOR LEGAL SERVICE
  First Defendant

AND:

BARNEY MANCKTELOW, VERA SHORT, GLORIA CHAPMAN
  VIOLA TUAHINU, BEN BIRD, WALTER HOLT,
  HERB SHIELDS AND MARIA BAKER
  Second defendants

JUDGMENT - (MACKENZIE J.)

Judgment delivered 6 /11 /1995

CATCHWORDS   INJUNCTION - mandatory - to require holding of AGM - Corporation required by rules to have AGM within 3 months of 30 June each year -- failure to do so - governing committee scheduled meeting for January 1996 to minimise threat of disruption by applicant - whether meeting should be held prior to then.

Counsel:                 L. Boccabella for applicant
  A. Vasta Q.C. for respondents

Solicitors:                Couroy & Associates for applicant

Queensland Aboriginal & Islanders Legal Service Secretariat for respondents

Hearing date:          1 November  1995
IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  Writ No.1593  of 1995

Before the Hon. Mr Justice Mackenzie

[Fisher v. Ipswich Regional Aboriginal & Torres Strait Is. Corp. for Legal Service & Ors ]

BETWEEN

NUGENT ALLAN FISHER

Plaintiff

AND

IPSWICH REGIONAL ABORIGINAL & TORRES STRAIT ISLANDER
  CORPORATION FOR LEGAL SERVICE
  First defendant

AND              BARNEY MANCKTELOW, VERA SHORT, GLORIA CHAPMAN,
  VIOLA TUAHINU, BEN BIRD, WALTER HOLT,
  HERB SHIELDS AND MARIA BAKER
  Second defendants

JUDGMENT - MACKENZIE J.

Judgment Delivered  6 November, 1995

This is an application for a mandatory injunction  under Order 57 to compel the first and second defendants to hold an annual general meeting of the first defendant.  The second defendants  are members of the governing committee of the first defendant.  The plaintiff had been a member of the governing committee but was suspended  following allegations that he had behaved improperly and in a manner inconsistent with the good administration of the legal service, particularly in relation to events following the appointment of an office manager.  There is a transcript on file showing that the applicant disputed a decision not to appoint one of his relatives to the position and had a long conversation about it with the person appointed.  That appointee has since resigned.  The suspension was lifted on 27 October  1995 but on 29 October 1995 he resigned as a member of the governing committee. 
          In addition to the injunction to require the holding of the annual general meeting an injunction was sought restraining the second defendants from taking any step to appoint any person to be the manager or principal executive officer of the first defendant in anything other than a caretaker capacity until the annual general meeting was held.  The affidavits indicate that there is dissension  among the members of the first defendant and allegations and counter allegations have been made about aspects of conduct.  It is not necessary to resolve those issues to dispose of these proceedings which are concerned with whether there is an obligation which has not been carried out to call an annual general meeting and whether the obligation should be enforced by injunction.
           The first defendant is a corporation under the Aboriginal Councils and Associations Act.   Such corporations are required by s.47 to have Rules which have the effect of a contract between the association and each member.  Clause 11(2) of the rules require annual general meetings subsequent to the first such meeting to be held within three  months  after each 30th of June.  Rule 9(2) provides that members of  the committee are to be elected at the annual general meeting and, except as otherwise provided in the Rules, hold office until the first meeting of the committee after the annual general meeting at which their successors are elected.  In connection with the application for an injunction against the appointment of an office manager it was submitted that because the annual general meeting had not been held within three months after 30 June the current members hold office unlawfully.  In view of s.9(2) that is not correct, even if it can be said that the rules have not been complied with.
           I am satisfied that no proper basis has been made out for the relief in that respect.  I am not satisfied that the applicant is disinterested in the subject, and to the extent that it is implicit in the appellant's submissions that he believes that the current governing committee will be voted out of office, any newly constituted committee can take any steps it considers desirable with respect to whom it employs.
           Section 58B of the Act provides that the governing committee is to call and conduct annual general meetings as provided by the Rules.  In the circumstances it is established that the committee has not complied with the Rules because the annual general meeting was not held within three months of 30 June.  The reason given is that the members of the committee apprehended that there may be an element of lack of safety in holding a meeting.  Although notices were sent out advising that the annual general meeting would be held on two separate dates the meetings were cancelled and rescheduled.  I mention in passing that a letter from the office of the Registrar of Aboriginal Corporations sent on 4 August 1995 to the governing committee of the first defendant expressed the view that the corporation's Rules, particularly Rules 7(1),(9)(10) gave the committee power to cancel or postpone a general meeting of which it had already given notice but before that meeting had been convened.  While that advice may be correct within its limitations, it does not purport to deal with the situation where a cancellation or postponement takes the holding of an annual general meeting outside the period provided for in the Rules.  There has been a resolution that the annual general meeting now be held on 13 January 1996.  The stated reason for deciding  to allow so much time to elapse is that it was hoped that the threat of disruption  would be less by then.  The plaintiff has denied that he is a disruptive influence  although the affidavit of Mr. Mancktelow only ascribes the fear of disruption to  threats made by persons sympathetic to the plaintiff, not directly to him.
          It is not possible to determine the true state of affairs in this respect.  If there is an apprehension  of disruption there are means of ensuring that it is minimised short of never holding a meeting or delaying it indefinitely by postponing it from time to time.  The principal arguments pressed against the granting of the injunction were that the courts should not intervene to accelerate the meeting by a relatively short period, perhaps less than two months,  and that there was an alternative remedy of appointment of  an administrator  under s.71 of the Act.  Appointment of an administrator would  result in the ousting of all existing  members of the governing committee from office.
          The appointment of an administrator is a drastic step.  The object sought to be achieved by the plaintiff is to have an annual general meeting called so that  the members of the corporation can exercise their right to choose the governing committee for the succeeding term.  In my opinion there is no reason to hold that the appointment of an administrator is a satisfactory alternative to the holding of the annual general meeting and the election of office bearers thereat.  So far as the question of accelerating the meeting is concerned the suggestion that the meeting has been postponed from time to time because of the threat of disruption does not in my view outweigh the need for the Rules to be observed and the democratic process to be carried through.  A very short timetable resulting in an election on 11 November was proposed by the applicant.  I expressed the view at the hearing and am still of the view that that imposes too  short a timetable.  However I am satisfied that the implementation of steps resulting in the holding of the annual general meeting on 25 November should be feasible.  I am satisfied that the balance of convenience favours the holding of  an annual general meeting prior to 13 January, 1996.  I therefore order as follows:

1.      The first and second defendants take all steps forthwith to hold and conduct an                annual general meeting of the first defendant on 25 November, 1995. 

2.      Without limiting the generality of the previous Order the first and second defendants   shall     take all steps to ensure that  a notice of the holding of the annual general            meeting to be held on 25 November, 1995 be posted to each member on the register             of members by the close of business on 10 November, 1995 such notice to specify                   the time and place of the meeting and further that an advertisement be placed in the   Queensland Times for publication on 11 November, 1995 containing a notification   that the annual general meeting of the first defendant will be held on 25 November,            1995 specifying the time and place of the meeting.

3.      I order that the respondents pay to the applicant one half of his costs of and   incidental to the application.