Graham v Newchurch - [2023] FCA 1411

FEDERAL COURT OF AUSTRALIA
Graham v Newchurch [2023] FCA 1411

File number: WAD 282 of 2023

Judgment of: COLVIN J

Date of judgment: 14 November 2023

Date of publication of reasons: 15 November 2023

Catchwords: CORPORATIONS - application for interlocutory injunction to restrain first to fourth respondents from taking various actions in relation to the fifth respondent - where applicant seeks leave to bring the action on behalf of the fifth respondent - where corporation is a registered Native Title Body Corporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - where corporation currently has no chief executive officer or independent director - where ability for corporation to make decisions regarding its operations is uncertain - where annual general meeting has been scheduled - leave for applicant to bring action granted - orders in relation to bank account made - orders made establishing a caretaker group to finalise arrangements for AGM - liberty to apply for further orders

Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Cases cited: Frigger v Trenfield [2019] FCA 1746

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 13

Date of hearing: 14 November 2023

Counsel for the Plaintiff: Mr BH Taylor with Mr JW Daly

Solicitor for the Plaintiff: Mills Oakley Lawyers

Counsel for the Defendants: Mr D Chandler

Solicitor for the Defendants: Yimba Pty Ltd

ORDERS

WAD 282 of 2023

BETWEEN:
HAROLD GRAHAM

Plaintiff

AND:
VERNA MARIE NEWCHURCH

First Defendant

GAILE MARGARET MALLARD

Second Defendant

STEPHEN REGINALD RULE

Third Defendant

SHAHAD (SHAZ) RIND
Fourth Defendant

NGADJU NATIVE TITLE ABORIGINAL CORPORATION RNTBC (ICN 8297
Fifth Defendant

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

14 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The applicant be given leave to amend its interlocutory process dated 8 November 2023 in the form annexed at 'Schedule A' to the applicant's minute of proposed orders dated 14 November 2023.
2.The Applicant be given leave to rely on the second affidavit of Harold Graham sworn 13 November 2023 and the third affidavit of Harold Graham sworn 14 November 2023 in support of its application.
3.The requirement for personal service of the originating process and interlocutory process dated 8 November 2023 filed in this action be dispensed with.
4.Service of:
(a)the originating process;
(b)the interlocutory process dated 8 November 2023;
(c)the affidavit of Harold Graham dated 7 November 2023;
(d)the affidavit of Pamela Kaye dated 7 November 2023;
(e)the affidavit of Justin Walter Daly dated 8 November 2023;
(f)the Applicant's genuine steps statement; and
(g)the second affidavit of Harold Graham dated 13 November 2023, filed in these proceedings, by email to the email addresses:
(i)verna.newchurch@nntac.org.au;
(ii)gaile.mallard@nntac.org.au;
(iii)Stephen.rule@nntac.org.au; and
(iv)sr@arragroup.com.au,

be good and sufficient service of those documents on the first to fifth respondents.

5.The time for service of each of the documents referred to in order 4 is abridged.
6.Subject to any further order, pursuant to section 169.5 of the Corporations (Aboriginal and Torres Strait Islander)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Graham v Newchurch

Details

AGLC: Graham v Newchurch [2023] FCA 1411
Case: [2023] FCA 1411
Decision Date: 14 November 2023

CaseChat Overview and Summary

The parties involved in the case of Graham v Newchurch are Harold Graham, acting on behalf of a fifth respondent, a Native Title Body Corporate, and four other respondents. The dispute revolves around an application for an interlocutory injunction to prevent the first to fourth respondents from engaging in specific actions concerning the fifth respondent. The Federal Court of Australia was tasked with deciding on this matter. The central legal issues that the court had to address were whether Harold Graham had the authority to bring the action on behalf of the fifth respondent and whether the fifth respondent's ability to make decisions regarding its operations was compromised due to the absence of a chief executive officer and an independent director. Additionally, the court needed to determine if the annual general meeting scheduled for the fifth respondent could proceed under the given circumstances.

The court granted Harold Graham leave to bring the action on behalf of the fifth respondent, which is a registered Native Title Body Corporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The court recognised that the fifth respondent's capacity to make decisions was uncertain due to the absence of a chief executive officer and an independent director. The court also ruled that the annual general meeting could proceed with the establishment of a caretaker group to manage the fifth respondent's affairs until the meeting. The court further issued an injunction to prevent the respondents from diminishing the value of the fifth respondent's funds in specified bank accounts until a certain date. Furthermore, the court allowed for the appointment of external advisors by the applicant and the caretaker group, with fees to be covered by the fifth respondent.

The court's reasoning was based on the need to protect the fifth respondent's interests and ensure the proper management of its affairs during the period leading up to the annual general meeting. By granting Harold Graham leave to act on behalf of the fifth respondent, the court allowed for the continuation of legal proceedings to safeguard the respondent's assets and decision-making processes. The establishment of a caretaker group and the appointment of external advisors were deemed necessary to facilitate a smooth transition and to address the uncertainties surrounding the fifth respondent's management structure. The court's decision was made with the intention of preserving the integrity of the annual general meeting and the overall well-being of the fifth respondent.

The final orders include granting Harold Graham leave to amend the interlocutory process and to rely on specific affidavits in support of his application. Service of various documents by email was deemed sufficient for the respondents, and the time for service was abridged. Harold Graham was granted leave to bring the proceedings on behalf of the fifth respondent, and the respondents were restrained from disposing of or diminishing the value of the fifth respondent's funds in specified bank accounts. A caretaker group was established to manage the fifth respondent's affairs until the annual general meeting, and the group's decisions must be unanimous. External advisors were permitted for both the applicant and the caretaker group, with fees to be covered by the fifth respondent. Liberty to apply for further orders was also granted, and costs were reserved.

Orders

Orders of the court

1. The applicant be given leave to amend its interlocutory process dated 8 November 2023 in the form annexed at 'Schedule A' to the applicant's minute of proposed orders dated 14 November 2023.

2. The Applicant be given leave to rely on the second affidavit of Harold Graham sworn 13 November 2023 and the third affidavit of Harold Graham sworn 14 November 2023 in support of its application.

3. The requirement for personal service of the originating process and interlocutory process dated 8 November 2023 filed in this action be dispensed with.

4. Service of:

(a) the originating process;

(b) the interlocutory process dated 8 November 2023;

(d) the affidavit of Pamela Kaye dated 7 November 2023;

(e) the affidavit of Justin Walter Daly dated 8 November 2023;

(f) the Applicant's genuine steps statement; and

(g) the second affidavit of Harold Graham dated 13 November 2023, filed in these proceedings, by email to the email addresses:

(i) verna.newchurch@nntac.org.au;

(ii) gaile.mallard@nntac.org.au;

(iii) Stephen.rule@nntac.org.au; and

(iv) sr@arragroup.com.au,

be good and sufficient service of those documents on the first to fifth respondents.

5. The time for service of each of the documents referred to in order 4 is abridged.

6. Subject to any further order, pursuant to section 169.5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), the Applicant be given leave on behalf of the Fifth Respondent to bring these proceedings to the extent only of advancing the interlocutory claims the subject of the interlocutory application dated 8 November 2023.

7. Subject to these orders and any further order, until 5.00pm on 30 November 2023 each of the Respondents be restrained from disposing of, dealing with or otherwise diminishing the value of any of the money in the following accounts in the name of the Fifth Respondent at the Commonwealth Bank of Australia:

(a) Account numbered 651410607349;

(b) Account numbered 600710273328;

(d) Account numbered 600017134557.

8. The affairs of the fifth respondent be managed in a caretaker mode by Harold Graham, Verna Newchurch, Gaile Mallard and Pearl Scott (Caretaker Group) in good faith until appointment of the board at the annual general meeting called for 29 November 2023.

9. The Applicant is entitled to appoint one external advisor the reasonable fees of which will be paid by the fifth respondent.

10. Ms Newchurch, Ms Mallard and Ms Scott are entitled to engage one external advisor of their choosing the reasonable fees of which will be paid by the fifth respondent.

11. Any decisions of the Caretaker Group to be acted on must be unanimous.

12. The Caretaker Group will work together to seek to maximise attendance at the annual general meeting convened for 29 November 2023.

13. These orders do not prohibit any dealing with or disposing of the fifth respondent's money where that disposal has been approved both by the Caretaker Group and by further order of this Court.

14. Liberty to apply.

15. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	WAD 282 of 2023
Judgment of:	COLVIN J
Date of judgment:	14 November 2023
Date of publication of reasons:	15 November 2023
Catchwords:	CORPORATIONS - application for interlocutory injunction to restrain first to fourth respondents from taking various actions in relation to the fifth respondent - where applicant seeks leave to bring the action on behalf of the fifth respondent - where corporation is a registered Native Title Body Corporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - where corporation currently has no chief executive officer or independent director - where ability for corporation to make decisions regarding its operations is uncertain - where annual general meeting has been scheduled - leave for applicant to bring action granted - orders in relation to bank account made - orders made establishing a caretaker group to finalise arrangements for AGM - liberty to apply for further orders
Legislation:	Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Cases cited:	Frigger v Trenfield [2019] FCA 1746
Division:	General Division
Registry:	Western Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	13
Date of hearing:	14 November 2023
Counsel for the Plaintiff:	Mr BH Taylor with Mr JW Daly
Solicitor for the Plaintiff:	Mills Oakley Lawyers
Counsel for the Defendants:	Mr D Chandler
Solicitor for the Defendants:	Yimba Pty Ltd

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	14 NOVEMBER 2023