Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council

[2013] NSWLEC 116

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116

Decision date:

22 July 2013

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

Expedition granted. Orders made in accordance with the short minutes of order.

Catchwords:

PROCEDURE: application for expedition - applicable legal principles - expedition granted.

Legislation Cited:

Aboriginal Land Rights Act 1983, ss 50, 104, 153

Aboriginal Land Rights Regulation 2002, cl 95

Civil Procedure Act 2005, ss 56, 57, 58, 61, 62, 63

Land and Environment Court Act 1979

Land and Environment Court Rules 2007

Uniform Civil Procedure Rules 2005, rr 2.1, 51.60

Cases Cited:

Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33

Healthscope Limited v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237

Vaughan v Dawson [2005] NSWSC 33

Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122

Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44

Category:

Procedural and other rulings

Parties:

Gandangara Local Aboriginal Land Council (Applicant)
New South Wales Aboriginal Land Council (First Respondent)
Clayton Hickey (Second Respondent)

Representation:

Mr R Ellicott QC with Ms V McWilliam (Applicant)
Ms K Morgan (First Respondent)
Dr S Pritchard SC (Second Respondent)
Beatty Legal (Applicant)
Chalk & Fitzgerald (First Respondent)
McCabes (Second Respondent)

File Number(s):

40317 of 2013

Judgment

A Local Aboriginal Land Council Seeks Expedition of its Claim

1. The applicant to the proceedings, Gandangara Local Aboriginal Land Council ("GLALC"), seeks expedition of the proceedings. The application enjoys the support of the first respondent, the New South Wales Aboriginal Land Council ("NSWALC"), and the second respondent, Mr Clayton Hickey.

1. Initially, GLALC had additionally made an application for the determination of two separate questions, but after discussion between the parties, GLALC's claim was reformulated in its entirety and the need for that application fell away with the consequence that only the application for expedition was pressed.

1. The request for expedition was acceded to by the Court but because of the lateness of the hour and the fact that other duty judge matters required the Court's attention, no reasons were given for the grant of expedition at the time the order was made. These are those reasons.

A Challenge is Made to the Purported Appointment of an Auditor

1. The salient factual features of GLALC's reformulated case are as follows:

(a) GLALC is constituted under s 50 of the Aboriginal Land Rights Act 1983 ("the ALR Act") for the Local Aboriginal Council Area known as Gandangara;

(b) NSWALC is constituted under s 104 of the ALR Act;

(c) Mr Hickey is a member of a firm of accountants and auditors known as Lawler Partners;

(d) Lawler Partners audited the accounts of GLALC for the years ending 30 June 2007 to 2012 inclusive;

(e) GLALC has kept accounts and records in relation to its operations for the year ending 30 June 2013;

(f) pursuant to s 153(2) of the ALR Act, GLALC must prepare financial statements for the year ended 30 June 2013 as required by that provision;

(g) pursuant to ss 153(3) and 153(4) of the ALR Act, those financial statements must be prepared and submitted to an auditor appointed by NSWALC not later than six weeks after the end of the financial year to which they relate, that is to say, by no later than 11 August 2013;

(h) GLALC, pursuant to s 153(5) of the ALR Act, must furnish to NSWALC the audited financial statements and other documents as prescribed no later than four months after the end of the financial year, that is by 1 November 2013;

(i) pursuant to s 153(3) of the ALR Act, GLALC is required to submit its financial statements to an auditor appointed by NSWALC in the manner prescribed by the Regulations;

(j) cl 95(2) of the Aboriginal Land Rights Regulation 2002 provides that NSWALC must, after a process of public tendering, appoint an auditor for each Local Aboriginal Land Council, which includes GLALC;

(k) NSWALC caused a process of public tendering to take place from which it selected a group of auditors for appointment to one or more of the Local Aboriginal Land Councils established under the ALR Act;

(l) by letter dated 8 March 2013, NSWALC, purporting to act pursuant to s 153(3) of the ALR Act, wrote to Mr Hickey appointing him as auditor to a number of Local Aboriginal Land Councils, including GLALC. The letter included as an attachment a document entitled "Instrument of Appointment" ("IoA"). Clause 23 of the IoA stated that the auditor must enter into a service agreement with GLALC for the provision of services as auditor for each financial year engaged. Certain matters were specified for inclusion in the service agreement;

(m) to date no written service agreement has been entered into between GLALC and Mr Hickey as referred to in the IoA nor has NSWALC appointed another auditor for the year ending 30 June 2013 pursuant to a request made by GLALC in a letter dated 4 April 2013;

(n) proceedings were commenced by GLALC on 1 May 2013; and

(o) a mediation took place between the parties on 12 July 2013, but failed to resolve the matter.

1. It appears that GLALC objects to the appointment of Mr Hickey as its auditor by NSWALC because of a dispute that occurred between GLALC and Mr Hickey occasioned by the 2011/2012 audit results. The working relationship between GLALC and Mr Hickey has, GLALC states, irretrievably broken down.

Legislative Framework and Claims of GLALC

1. Section 153 of the ALR Act relevantly provides:

153 Local Aboriginal Land Councils to keep accounts

(1) Each Local Aboriginal Land Council must cause proper accounts and records to be kept in relation to all its operations.

(2) Each such Council must prepare financial statements for each financial year of the Council in accordance with section 41B (1) of the Public Finance and Audit Act 1983.

(2A) Section 41BA of the Public Finance and Audit Act 1983 applies to financial statements required to be prepared under this section in the same way that it applies to financial reports required to be prepared under that Act.

(3) The financial statements must be submitted for verification and certification to an auditor appointed by the New South Wales Aboriginal Land Council in the manner prescribed by the regulations.

(4) The financial statements must be prepared and submitted to the auditor not later than 6 weeks after the end of the financial year to which they relate.

(5) Each such Council must furnish to the New South Wales Aboriginal Land Council the audited financial statements and such other documents as are prescribed by the regulations, not later than 4 months after the end of each financial year.

1. Regulation 95(2) of the Aboriginal Land Rights Regulation 2002 states:

The New South Wales Aboriginal Land Council must, after a process of public tendering, appoint an auditor for each Local Aboriginal Land Council.

1. Pursuant to a further amended summons filed in Court on 22 July 2013 reflecting GLALC's reformulated claim, the only relief now sought is whether the Court should declare:

1 ... that under the letter dated 8 March 2013, from the First Respondent to the Second Respondent, the First Respondent failed thereby validly to appoint the Second Respondent as the auditor of the financial statements of the Applicant pursuant to sub-s 153(3) of the Aboriginal Land Rights Act 1983 (ALR Act) and Regulation 95 thereunder.

2 Alternatively, ... that if made, any appointment had no effect or operation, and/or no longer has any effect or operation, by reason of the Applicant refusing and continuing to refuse to agree to the service agreement required by paragraph (a) of the letter dated 8 March 2013.

1. Compendiously, the relief sought gives rise to two legal issues, put simply as:

(a) first, whether s 153 of the ALR Act contains a power to appoint an auditor on terms or conditions; and

(b) second, if so, whether a purported appointment is valid if those terms or conditions are not met.

Principles Applicable in Granting Expedition

1. There is no specific power dealing with expedition in either the Civil Procedure Act 2005 ("CPA"), the Uniform Civil Procedure Rules 2005 ("UCPR") (other than in the Court of Appeal: see r 51.60 of the UCPR), the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007. It therefore appears that the power of this Court to grant expedition is found in s 61 of the CPA and r 2.1 of the UCPR. The former provision enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and the latter rule enables the Court, at any time, to give such directions and make such orders for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings. Both compliment the provisions contained in ss 56 to 58 and ss 61 to 63 of the CPA.

1. In Vaughan v Dawson [2005] NSWSC 33, Campbell J quoted (at [8]) the following passage from Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 (at 42-43 per Young J) articulating some of the applicable principles in determining whether or not to exercise the Court's discretion to grant expedition:

8 In Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43 Young J said:

"...when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account.

These are:

(1) Is this the appropriate Court for the litigation, in particular:

(a) does the litigation fall into the work normally done by this Court; and

(b) is there a sufficient nexus with New South Wales.

(2) Is there a special factor involved which warrants expedition. Usually these factors will be:

(a) the loss of witnesses if the case is not fixed at an early date;

(b) matters of public importance;

(c) that the subject matter of the litigation will be lost if it is not heard quickly;

(d) that the litigation to date has been delayed through no fault of the applicant;

(e) that the applicant is suffering hardship not caused through his own fault;

(f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date);

(g) the nature of the case (for example, ejectment, child custody); and

(h) that there are large sums of money involved.

There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings.

(3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed?

(4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted.

Then there are two factors dealing with the exigencies of the list, viz:

(5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek an expedited hearing.

(6) Any "right" to expedition is a right to have the case fixed on one occasion. If, after a date has been fixed, it has to be vacated, it is difficult indeed to justify again expediting the proceedings: Ron Hodgson Cabramatta Pty Ltd v Wewoka Pty Ltd t/as B P Cabramatta Motors (Waddell CJ in Equity, 30 March 1989, unreported).

The question here is whether there is a seventh guideline, namely, that one should not expedite a case where the chances of the applicant for expedition securing what it wants in the proceedings are not high. This point arises because the defendant submits that because of the matters I have already canvassed, the chances of the plaintiff obtaining equitable relief must, according to the defendant, be slim.

I do not think that the Court, ought in an application for expedition, to make an assessment of the applicant's chances of success. However, I do agree that there is a seventh guideline, namely, that the Court should not expedite a case if it considers that in all the circumstances the chances of the applicant obtaining what it seeks in the litigation cannot be put as higher than speculative."

1. These principles have subsequently been applied in this Court on numerous occasions (Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122 at [35]-[43]; Healthscope Limited v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237 at [8]-[10] and Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44 at [14]).

1. Applying these principles to the facts of the present application results in a grant of expedition. This is because:

(a) first, if expedition is not granted then it is possible that, contrary to s 153 of the ALR Act, no auditor has been appointed to GLALC within the statutorily mandated time, with the further possible consequence that, pursuant to the ALR Act, GLALC may be placed into administration;

(b) second, there has been no delay by GLALC in bringing this application;

(c) third, the parties are plainly willing to do everything in their power to abridge the preparation for, and hearing of, the matter. It was agreed by the parties that in its truncated form the matter is of narrow compass and should be easily heard in less than a day;

(d) fourth, although it will impose a considerable burden on the limited resources of the Court, it is not impossible for the Court to accommodate an expedited hearing in the time required; and

(e) fifth, GLALC's case cannot be considered speculative.

Conclusion and Orders

1. In addition to a grant of expedition, it is convenient to make orders for the future conduct of the proceedings and to set the matter down for final hearing.

1. The orders of the Court are therefore that:

Applicant's Motion for Separate Question

1. The amended notice of motion dated 18 July 2013 is withdrawn.

2. The applicant must pay the first and second respondents' cost of:

(a) the notice of motion dated 17 July 2013; and

(b) the amended notice of motion dated 18 July 2013,

as agreed or assessed.

Further Amended Summons

3. The applicant is granted leave to file in Court on 22 July 2013 the Further Amended Summons.

4. The applicant's points of claim filed on 17 June 2013 are withdrawn.

5. The applicant must pay the first respondent's costs thrown away by reason of the amendments to the original summons filed 1 May 2013 and the Amended Summons filed 17 June 2013 (Amended Summons) and the withdrawal of the Points of Claim, including the costs thrown away associated with the preparation for, and attendance at, the failed mediation on 12 July 2013, as agreed or assessed.

6. The applicant must pay the second respondent's costs thrown away by reason of the amendment to the Amended Summons, including without limitation, all costs thrown away by the withdrawal of the Points of Claim and all costs associated with the preparation for, and attendance at, the failed mediation on 12 July 2013, as agreed or assessed.

Directions

7. The proceedings are to be expedited.

8. The first respondent is to serve a draft statement of facts by 23 July 2013.

9. The applicant is to file and serve its written submissions, an agreed statement of facts and an agreed bundle of documents by 25 July 2013.

10. The first respondent is to file and serve its written submissions by 29 July 2013.

11. The matter is set down for final hearing at 10.00am on 31 July 2013.

12. Liberty to restore on 24 hours' notice.

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Decision last updated: 24 July 2013