Kanak, Dominic Wy v ICI Australia Limited

[1995] FCA 1019

CATCHWORDS

PRACTICE AND PROCEDURE - summary dismissal of proceedings - oppression proceedings under Corporations Law - no reasonable cause of action - abuse of process

DOMINIC WY KANAK v ICI AUSTRALIA LIMITED
No. NG 3607 of 1995

Coram:           Whitlam J

Place:Sydney

Date:              15 December 1995

IN THE FEDERAL COURT OF AUSTRALIA                   )
  )
NEW SOUTH WALES DISTRICT REGISTRY                  )          NG 3607 of 1995
  )
GENERAL DIVISION  )

IN THE MATTER OF ICI AUSTRALIA LIMITED
AUSTRALIAN COMPANY NUMBER: 004 145 868

DOMINIC WY KANAK

Applicant

ICI AUSTRALIA LIMITED

Respondent

Coram:Whitlam J

Place:Sydney

Date:1 December 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                   )
  )
NEW SOUTH WALES DISTRICT REGISTRY                  )          NG 3607 of 1995
  )
GENERAL DIVISION  )

IN THE MATTER OF ICI AUSTRALIA LIMITED
AUSTRALIAN COMPANY NUMBER: 004 145 868

DOMINIC WY KANAK

Applicant

ICI AUSTRALIA LIMITED

Respondent

Coram:           Whitlam J
Place:              Sydney

Date:15 December 1995

REASONS FOR JUDGMENT

On 1 December 1995 I made an order dismissing oppression proceedings instituted by the applicant under Part 3.4 of the Corporations Law ("the Law"). These are my reasons for making that order.

The application was filed on 31 October 1995. The company was the only respondent. In addition to an order that the company be wound up, the applicant sought the following relief under pars (d), (j) and (k) of subs 260(2) of the Law:

"2. An order that before winding up ICI fulfil its verbal promises made to the Darug link mob at a meeting concerning the proposed route of the Moomba to Sydney (ICI's petro chemical plant at Botany Bay) ethane gas (dedicated to making plastics) pipeline across their claimed tribal lands.

1. An order that before winding up ICI, its various contractors and those companies\subsidiaries of whom ICI is the parent or ultimate holding company, namely Gorodok P\L, be immediately restrained from constructing the Moomba to Sydney (ICI's petro chemical plant at Botany Bay) ethane gas (dedicated to making plastics) pipeline any further across the Crown land easements acquired under the Lands Acquisition Act in connexion with the proposed pipeline route over which a question of native title still remains.

1. An order that before winding up ICI, its various contractors and those companies of whom ICI is the parent or ultimate holding company be immediately restrained from negotiating, entering into or finalizing any business agreements\contracts in connexion with the proposed route of the Moomba to Sydney (ICI's petro chemical plant at Botany Bay) ethane gas (dedicated to making plastics) pipeline across Darug tribal lands.

1. An order that before winding up the ICI project manager and the CMPS&F contract project manager physically meet with the Darug Link mob and the applicant in these proceedings over their concerns in regard to the aforementioned pipeline project.

1. An order that before winding up the ICI project manager and the CMPS&F contract project manager take us (Darug Link mob and applicant) all out to have a look at the work\construction sites where work has already been done in connexion with the pipeline after it has crossed the Darug border.

1. An order that before winding up the ICI project manager and the CMPS&F contract project manager physically meet with the Darug Link mob and the applicant in these proceedings over their concerns and take us all out to have a look at the work\construction sites where work has already been done in connexion with the pipeline, namely, but not restricted to, that area identified to ICI in their first meeting with the Darug link mob where there are scarred trees that have been noted by both the Darug Link mob and ICI on either side of the proposed pipeline route.

1. An order that before winding up ICI officially apologize in public writing to the Darug for having not fulfilled their verbal promises regarding the proposed route of the aforementioned pipeline across Darug tribal lands up to now."

The applicant filed an affidavit in support made on 29 October 1995. In that affidavit he referred to proceedings NG 6003 of 1995, in which he was the applicant, and to a conversation, which he had prior to the hearing of that matter with a Dr R.B. Coles. In his affidavit the applicant stated the grounds of his application as "not consulting further with the Darug" and "breaking promises to the Darug", in respect of which he relied on subpar (a)(i) of subs 260(1), and also as "not fulfilling verbal promises to the Darug link", in respect of which he relied on subpar (a)(ii) of subs 260(1).

On 15 November 1995 the applicant faxed to the company's solicitors a copy of the notice required by subrule 20(6) of the Corporation Rules.  The next day the company filed in Court notice of a motion seeking to have the proceedings summarily dismissed and       Lehane J granted the company ex parte an interlocutory order restraining publication of notice of the application.

The evidence on the hearing of the motion may be shortly stated.  According to its financial statements for the year ended 30 September 1994, the company's issued share capital was $298.3 million, comprising 2,000,000 preference shares of $1 each and 296,209,601 ordinary shares of $1 each.  The applicant became registered as the holder of 100 ordinary shares on 4 September 1995.  ICI Australia Operations Pty Ltd ("Operations") is a wholly-owned subsidiary of the company.  Dr Coles is employed by Operations as Ethane Venture Manager and is responsible for its contractual arrangements in relation to the ethane pipeline project referred to in the application.

The application in proceeding NG 6003 of 1995 was dismissed on 27 October 1995. The Full Court affirmed the decision of the President of the National Native Title Tribunal.  The President had not been satisfied that a prima facie claim could be made out that the applicant held native title under the Native Title Act 1993, either alone or with others, in relation to certain discrete areas over which it was proposed to construct the pipeline. Operations was a respondent in that proceeding.

On the hearing of the motion the applicant also read an affidavit made on             28 November 1995.  This did not flesh out his conversation with Dr Coles.  He complained that the company had not met the Darug and that representatives of the company had made certain promises to the Darug.

The applicant submitted that his case was that he was being oppressed as an "indigenous" member of the company.  He said that his "oppression" would end if the company were wound up.  But the true nature of his complaints appears from the specific relief sought.  Such a perusal starkly reveals the flaws in this contention.  Nor was the application concerned with the kind of unfairness described by Brennan J in Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 470-473. The applicant was plainly seeking to agitate claims in contract or under the Native Title Act. The proceeding may thus be characterized as one in which no reasonable cause of action was disclosed or as being frivolous. It would not, of course, matter that any relevant conduct, acts or omissions to be impugned occurred before the applicant became a member. However, here too, the respondent was correct in submitting, in effect, that the proceeding was brought for an ulterior purpose unrelated to the subject matter of s 260 of the Law. The evidence established that the applicant's real concern was the vindication of the native title claims of himself or the "Darug Link mob". To attempt to do so in these proceedings was an abuse of process. See the authorities conveniently collected in Mathews v Maddigan (unreported, 6 November 1995, Full Court of the Federal Court of Australia).  In my opinion, this was a plain and obvious case for summary dismissal.

I certify that this and the preceding four pages are a  true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date:                 15 December 1995

The applicant appeared in person

Counsel for the respondent: L.G. Foster SC

Solicitors for the respondent:           Mallesons Stephen Jacques

Date of hearing:  1 December 1995