In the matter of Gandangara Services Limited (No 2)
[2014] NSWSC 629
•19 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Gandangara Services Limited (No 2) [2014] NSWSC 629 Hearing dates: 19 May 2014 Date of orders: 19 May 2014 Decision date: 19 May 2014 Jurisdiction: Common Law Before: Brereton J Decision: Application to set aside subpoenas dismissed
Catchwords: PROCEDURE – subpoenas – application to set aside sup – relevance – where no objection on grounds of oppression Cases Cited: Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council; Hillig v Darkinjung Pty Ltd; Darkinjung Local Aboriginal Land Council v Warner [2006] NSWSC 1008 Category: Procedural and other rulings Parties: Gandangara Local Aboriginal Land Council (first plaintiff)
GLALC Development Services Limited (second plaintiff)
Gandangara Management Services Limited (nominal third plaintiff)
Gandangara Services Limited (first defendant)
Gandangara Health Limited (second defendant)
Cinderella Cronan (third defendant)
George Bloomfield (fourth defendant)
Carolyne Joy Brown (fifth defendant)
John Thomas Dickson (sixth defendant)
Mervyn Gregory Donovan (seventh defendant)
Denis Thorne (eighth defendant)
Rohan Tobler (ninth defendant)
Mark (Jack) Johnson (tenth defendant)
Gandangara 101 Limited (eleventh defendant)
Gandangara Employment & Training Limited (twelfth defendant)
Gandangara Future Fund Limited (thirteenth defendant)
Gandangara Health Services Limited (fourteenth defendant)
Gandangara Housing Services Limited (fifteenth defendant)
Gandangara Transport Services Limited (sixteenth defendant)
Lot 3 (South) Barden Ridge Limited (seventeenth defendant)
Marumali Limited (eighteenth defendant)
Sproule Road Limited (nineteenth defendant)
Statewide Aboriginal Services Limited (twentieth defendant)
Sydney Aboriginal Services Limited (twenty-first defendant)Representation: Counsel:
Solicitors:
D Smallbone (plaintiffs)
V Bedrossian (defendants)
Watson Mangioni (plaintiffs)
File Number(s): 2014/ 100748
Judgment – ex tempore
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HIS HONOUR: One of the issues in this proceeding is whether the steps taken on 15 January 2014 whereby New Services was admitted as a member of Management and New Health was admitted as a member of Old Health and resigned as a member of Management - so that there was no longer any management link between the special purpose companies on the one hand and the Land Council on the other, which constituted a contravention of the Aboriginal Land Rights Act and a void on that account.
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In Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council; Hillig v Darkinjung Pty Ltd; Darkinjung Local Aboriginal Land Council v Warner [2006] NSWSC 1008, Barrett J, as his Honour then was, explained (at [129]) that where an authority or agency was incorporated by Parliament, that involved not only the grant of rights and privileges but also duties and responsibilities which were of a public or quasi public nature, such that the corporation may not act to abdicate or avoid its statutory duties and responsibilities, even if the means by which it purported to do so otherwise appeared to lie within the scope of its objects, functions and powers. At [132] his Honour applied that to a local aboriginal land council, in holding that pursuit of the s 51 object, by performance of the s 52 functions, is not merely a right, power or capacity of the land council, but also a duty and responsibility which had to be discharged by the land council itself.
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His Honour then explained that any arrangement which caused property of the land council to be vested in another person, for application in accordance with future decisions of that person, albeit in ways that may in whole or in part correspond with the land council’s s 52 functions and be consistent with its s 51 objects, entails abdication of statutory responsibility, an impermissible shifting of statutory decision making, an impermissible sidestepping of statutory controls and, therefore, a subversion of the statutory function.
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His Honour therefore accepted (at [135]) that the effect of a trust structure established by the land council concerned in that case, by the transfer of funds by the land council to the trustee of the trust, was an impermissible abandonment by the land council of its statutory duties and responsibilities with respect to a large part of its property, and that was so notwithstanding a substantial identity of objects between those of the land council and those of the trust. His Honour said (at [135]):
Rather, its objective was to put the property in question entirely out of its ownership and beyond its reach and to subject the property to a regime which, while in some respects contemplating applications of funds in ways corresponding with those open to DLALC under the ALR Act, involved decision-making and control otherwise than by DLALC.
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In the present case, the plaintiff wishes to argue that the transactions of 15 January 2014 were calculated to effect a separation between the special purpose companies and the land council, such that the special purpose companies would discharge functions of the Land Council but not be under its control and accordingly that the steps taken to give implement the arrangements were void as a subversion of the Act, in the manner described by Barrett J in the passages to to which I have referred.
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The subpoenas which the 10th defendant by the present application applies to set aside seek production by a variety of entities which have had or may have had dealings with the Land Council, of documents which it is said may cast light on whether the special purpose companies are, in substance, performing functions given by the Act to the Land Council. It seems to me to be on the cards that the documents, production of which is sought, will cast light on the functions being performed by the special purpose companies.
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Unless and until it is said that the functions they are performing are not an issue, it seems to me that the plaintiff must be entitled to elicit evidence that will show what those functions are, in order to found the argument that they are in fact functions given by the statute to the Land Council. It may be that argument could be advanced on the footing of the constitutional objects of the special performance companies but it does not seem to me that, at least absent an admission, the plaintiffs are limited to that course, if they wish to prove that regardless of the constitutional position, in practice and in fact the special purpose companies are discharging functions of the Land Council.
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On that basis, and in circumstances where no recipients of any of the subpoenas object that production is oppressive or that the subparagraph is too broad, it seems to me that the documents sought have sufficient relevance in the adjectival sense to warrant the issue of the subpoenas.
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I decline to set aside the subpoenas.
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Decision last updated: 14 January 2015
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