ABORIGINES – Aboriginal corporations – Whether appointment of an administrator under Aboriginal Councils and Associations Act 1976 (Cth) (“ACA Act”) brings to an end or suspends a voluntary administration under Pt 5.3A of the Corporations Law – Whether Registrar did not permit the corporation to show cause why an administrator under the ACA Act should not be appointed - Whether administrator of an Aboriginal Corporation can be appointed for a limited period – Whether Minister’s approval required for appointment of a new administrator
CORPORATIONS – Pt 5.3A of the Corporations Law (“CL”) – Whether opinion as to solvency or likely insolvency formed by Governing Committee pursuant to s 436A of the CL – Whether voluntary administrator appointed for an improper purpose – Consideration of relevance of opinion and purpose of individual members of Governing Committee
CORPORATIONS - annual general meeting – Proxy – Whether a member who gives a proxy to another member is present at the annual general meeting for the purpose of determining if there is a quorum
STATUTE – Interpretation – Reconciling inconsistent provisions in a statute
JUDGE: MERKEL J PLACE: MELBOURNE (HEARD IN CANBERRA AND MELBOURNE) DATE: 30 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
AG 3005 of 1998
BETWEEN:
HENRY JOSEPH KAZAR APPLICANT
AND:
ROSS ANDREW DUUS FIRST RESPONDENT
THE REGISTRAR OF…
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
AGLC
Kazar v Duus [1998] FCA 1378
Case
[1998] FCA 1378
Decision Date
CaseChat Overview and Summary
The case of Kazar v Duus involved a dispute over the appointment of an administrator for The Goolburri Aboriginal Corporation Land Council, an Aboriginal Corporation incorporated under the Aboriginal Councils and Associations Act 1976 (Cth). The case addressed several legal issues, including whether the appointment of an administrator under the Aboriginal Councils and Associations Act 1976 (Cth) brings to an end or suspends a voluntary administration under Part 5.3A of the Corporations Law, whether the Registrar permitted the corporation to show cause why an administrator should not be appointed, whether an administrator of an Aboriginal Corporation can be appointed for a limited period, and whether the Minister's approval was required for the appointment of a new administrator.
The Federal Court of Australia found that the appointment of an administrator under the Aboriginal Councils and Associations Act 1976 (Cth) does not bring to an end or suspend a voluntary administration under Part 5.3A of the Corporations Law. However, upon the appointment of an administrator under the Aboriginal Councils and Associations Act 1976 (Cth), the administrator appointed under Part 5.3A ceases to be entitled to exercise any substantive powers or functions as an administrator for the duration of the administration under the Aboriginal Councils and Associations Act 1976 (Cth). The Court found that the Registrar did not deny natural justice by not allowing the applicant to respond to the show cause notice on behalf of the corporation. Furthermore, the Court found that an appointment of an administrator can be for a limited period, and that the Minister's approval was not required for the appointment of a new administrator under the Aboriginal Councils and Associations Act 1976 (Cth).
As a result of the Court's decision, the following relief was granted: a declaration that the appointment of the applicant as Administrator of Goolburri on 20 June 1998 was invalid, void and of no effect; a declaration that the appointment of the Registrar of Duus as Administrator of Goolburri on 3 July 1998 and the appointment of Roberts to replace Duus as Administrator on 5 October 1998 were validly made pursuant to the Aboriginal Councils and Associations Act 1976 (Cth); an injunction restraining the applicant from acting as an administrator of Goolburri pursuant to his appointment by the Governing Committee of Goolburri on 20 June 1998; and an order that the applicant pay the Registrar's, Duus' and Roberts' taxed costs of and incidental to this proceeding. The Court also reserved liberty to apply in respect of any matters or issues arising as a result of these orders.