Hillig v Darkinjung Pty Ltd - [2008] NSWCA 75

New South Wales

Court of Appeal

CITATION: Hillig v Darkinjung Pty Ltd & Ors [2008] NSWCA 75
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 May 2007

JUDGMENT DATE:
29 April 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; McColl JA at 11

DECISION: 1. Appeal allowed.
2. Orders and declarations made by Austin J on 19 June 2006 set aside.
3. Interlocutory processes filed by the first to sixth respondents on 29 May 2006 dismissed.
4. Costs reserved.

CATCHWORDS: ABORIGINALS — Aboriginal land councils — powers and functions — appointment of administrator to exercise all the functions of Local Aboriginal Land Council — whether members of Local Aboriginal Land Council retained voting function to exercise resolution-making power conferred by provisos to clauses in constitution of company in which Local Aboriginal Land Council held the sole share - STATUTORY INTERPRETATION — characterisation of Local Aboriginal Land Council constituted under Aboriginal Land Rights Act 1983 — authority and capacity as a statutory corporation — statutory functions, duties and responsibilities — role of officers and members.

LEGISLATION CITED: Aboriginal Land Rights Act 1983
Aboriginal Land Rights Amendment Act 2006
Interpretation Act 1987
Corporations Act 2001 (Cth)

CATEGORY: Principal judgment

CASES CITED: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29
Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220
Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council; Hillig v Darkinjung Pty Ltd; Darkinjung v Warner [2006] NSWSC 1008; (2006) 203 FLR 394
Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council; Hillig v Darkinjung Pty Ltd [2006] NSWSC 1217
Hadkinson v Hadkinson [1952] P 285
Harrington v Rich [2008] FCAFC 61
Hillig v Darkinjung Pty Ltd [2006] NSWSC 1371
Hillig v Darkinjung Pty Ltd [2006] NSWSC 594; (2006) 201 FLR 148
Hillig v Darkinjung Pty Ltd [2007] NSWSC 683
In re F (Mental Patient: Sterilisation) v West Berkshire Health Authority [1991] UKHL 1; [1990] 2 AC 1
Isaacs v Robertson [1985] AC 97
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 82 ALJR 345
New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300
Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2006] NSWCA 291
Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365

PARTIES: Peter Hillig in his capacity as Administrator of Darkinjung Local Aboriginal Land Council - Appellant
Darkinjung Pty Ltd - First Respondent
Jeffrey John Bradford - Second Respondent
David Pross - Third Respondent
Greg Flanders - Fourth Respondent
George Alexander Watts - Fifth Respondent
Michael Stuart Jones - Sixth Respondent
Ian Cunliffe - Seventh Respondent

FILE NUMBER(S): CA 40489 of 2006; 40386 of 2006

COUNSEL: Mr D H Murr SC with Mr D A Smallbone - Appellant
Mr S D Epstein SC - Second to…

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.

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Details

Case: [2008] NSWCA 75
Decision Date: 29 April 2008

CaseChat Overview and Summary

The dispute in *Hillig v Darkinjung Pty Ltd* concerned the powers and functions of a Local Aboriginal Land Council (LALC) following the appointment of an administrator. The appellant, Mr Hillig, sought declarations regarding the continued voting rights of the LALC members in relation to a company in which the LALC held the sole share. The respondents included Darkinjung Pty Ltd and the administrator appointed to the LALC. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the members of the LALC retained their voting function to exercise resolution-making power conferred by provisos to clauses in the constitution of Darkinjung Pty Ltd, despite the appointment of an administrator to the LALC. This required the court to consider the characterisation of the LALC as a statutory corporation constituted under the *Aboriginal Land Rights Act 1983* (NSW), its statutory functions, duties, and responsibilities, and the role of its officers and members in that context.

The Court of Appeal allowed the appeal, setting aside the orders and declarations made by Austin J. The court reasoned that the appointment of an administrator to exercise all the functions of the LALC necessarily encompassed the resolution-making power held by the LALC as the sole shareholder of Darkinjung Pty Ltd. Consequently, the members of the LALC did not retain the capacity to exercise this voting function independently. The interlocutory processes filed by the respondents were dismissed.

Orders

Orders of the court

1. Appeal allowed. 2. Orders and declarations made by Austin J on 19 June 2006 set aside. 3. Interlocutory processes filed by the first to sixth respondents on 29 May 2006 dismissed. 4. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hillig v Darkinjung Pty Ltd & Ors [2008] NSWCA 75 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 May 2007
JUDGMENT DATE:	29 April 2008
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; McColl JA at 11
DECISION:	1. Appeal allowed. 2. Orders and declarations made by Austin J on 19 June 2006 set aside. 3. Interlocutory processes filed by the first to sixth respondents on 29 May 2006 dismissed. 4. Costs reserved.
CATCHWORDS:	ABORIGINALS — Aboriginal land councils — powers and functions — appointment of administrator to exercise all the functions of Local Aboriginal Land Council — whether members of Local Aboriginal Land Council retained voting function to exercise resolution-making power conferred by provisos to clauses in constitution of company in which Local Aboriginal Land Council held the sole share - STATUTORY INTERPRETATION — characterisation of Local Aboriginal Land Council constituted under Aboriginal Land Rights Act 1983 — authority and capacity as a statutory corporation — statutory functions, duties and responsibilities — role of officers and members.
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Aboriginal Land Rights Amendment Act 2006 Interpretation Act 1987 Corporations Act 2001 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29 Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council; Hillig v Darkinjung Pty Ltd; Darkinjung v Warner [2006] NSWSC 1008; (2006) 203 FLR 394 Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council; Hillig v Darkinjung Pty Ltd [2006] NSWSC 1217 Hadkinson v Hadkinson [1952] P 285 Harrington v Rich [2008] FCAFC 61 Hillig v Darkinjung Pty Ltd [2006] NSWSC 1371 Hillig v Darkinjung Pty Ltd [2006] NSWSC 594; (2006) 201 FLR 148 Hillig v Darkinjung Pty Ltd [2007] NSWSC 683 In re F (Mental Patient: Sterilisation) v West Berkshire Health Authority [1991] UKHL 1; [1990] 2 AC 1 Isaacs v Robertson [1985] AC 97 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 82 ALJR 345 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2006] NSWCA 291 Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365
PARTIES:	Peter Hillig in his capacity as Administrator of Darkinjung Local Aboriginal Land Council - Appellant Darkinjung Pty Ltd - First Respondent Jeffrey John Bradford - Second Respondent David Pross - Third Respondent Greg Flanders - Fourth Respondent George Alexander Watts - Fifth Respondent Michael Stuart Jones - Sixth Respondent Ian Cunliffe - Seventh Respondent
FILE NUMBER(S):	CA 40489 of 2006; 40386 of 2006
COUNSEL:	Mr D H Murr SC with Mr D A Smallbone - Appellant Mr S D Epstein SC - Second to…