Lester v Cruse

[1999] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION:

Lester and Ors v Cruse [1999] NSWLEC 204

PARTIES

APPLICANTS:
Lester and Ors

RESPONDENT:
Cruse

NUMBER:

40106 of 1999

CORAM:

Talbot J

KEY ISSUES:

Aboriginal :- meetings - procedure for calling

LEGISLATION CITED:

Aboriginal Land Rights Act 1983

DATES OF HEARING:

06/15/1999

EX TEMPORE JUDGMENT DATE:

06/15/1999

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr T F Robertson (Barrister)

SOLICITORS:
Henrietta J Dean

RESPONDENT:
Mr J S Coombs QC

SOLICITORS:
The Law Firm of Solari's

JUDGMENT:

IN THE LAND AND Matter No. 40106 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 15 June 1999

Robert John Lester, Thomas Winters, Rodney Towney
William Murray, Manul Ritchie, Thomas Briggs, David Brown
Applicants

v
Ossie Cruse as Chairperson of the New South Wales
Aboriginal Land Council

Respondent

EX TEMPORE REASONS FOR JUDGMENT


1. HIS HONOUR: The applicants are Councillors of the New South Wales Aboriginal Land Council. The respondent is a Councillor of the New South Wales Aboriginal Land Council and acts in the capacity of Chairperson of the Council.

2. On 25 May 1999 the applicants signed a document wherein they requested the respondent as Chairperson to convene a meeting of the New South Wales Aboriginal Land Council.

3. The request contains conflicting information. It is headed as a request for an Extraordinary Meeting of the Council, whereas the body of the document refers specifically to cl 1(4) of Sch 6, of the New South Wales Aboriginal Land Rights Act 1983 .

4. The request for the meeting specifically refers to two agenda items. Thereafter it goes on to request that the meeting be called in accordance with the provisions of Sch 3 to the Aboriginal Land Rights Regulation. Schedule 3 comprises the model rules for the New South Wales Aboriginal Land Council.

5. In order to place the request in its statutory context it is necessary to have regard to the provisions of the Aboriginal Land Rights Act and the regulation pursuant to s 22(5) of the Act. Schedule 6 to the Act has effect with respect to procedure of the Council. Until the Council makes its first rules in accordance with the section, its rules are the rules prescribed by the regulations as it rules in accordance with s 24(6) of the Act.

6. Reference to Sch 6 cl 1 discloses that pursuant to subpar 4 the Chairperson, in accordance with a request, is to convene a meeting of the Council on receipt of a written request for a meeting signed by a majority of Councillors.

7. It should be noted that subpar 5 of cl 1 in Sch 6 states that the procedure for calling a meeting, and the conduct of business at meetings at the Council is to be determined by the Council, except as otherwise provided by this Act, or the regulations.

8. There is nothing referred to the Court which identifies any determination by the Council pursuant to cl 1(5), of Sch 6. It is common ground that the model rules apply pursuant to reg 87, which states:

"The rules as set out in Schedule 3 are prescribed, for the purpose of section 24(6) of the Act, as model rules for the New South Wales Aboriginal Land Council" .

9. The provision upon which the respondent relies within the model rules is Sch 3, r 3. It provides that:

"If the Secretary receives a request in writing signed by the councillors whose number amounts to a quorum, the Secretary must call an extraordinary meeting to be held as soon as practicable but in any event within 21 days after the receipt of the request".

10. On behalf of the respondent Mr Coombs QC also relies on cl 3(2) of the of the model rules where it states that:

"At an extraordinary meeting the Council is to deal only with those matters contained in the request for the meeting."


11. The remaining provision which has some bearing on the arguments raised by the respondent is to be found in model rule 19, subpar 3, where after providing for the primary duties of the Chairperson, it states that “ in particular inter alia the Chairperson must consult with the Secretary in the preparation of an agenda” , and correspondingly in rule 20, “the Secretary must prepare an agenda in consultation with the Chairperson before each meeting” .

12. On 2 June 1999 following an ex parte hearing in Chambers, based upon an affidavit sworn by the first applicant, Robert John Lester, taken to have been sworn on 2 June 1999, I made orders requiring the respondent, as Chairperson, to convene a meeting of the Council to discuss the particular business referred to in the request dated 25 May 1999. A timetable for the calling of the meeting was stipulated.

13. Pursuant to liberty to apply granted on 2 June 1999, the respondent now appears to move that the orders made on that day be set aside.

14. The Court has been told that, pursuant to the order, a meeting has been convened. The meeting is scheduled to be held tomorrow. Although he foreshadows other relief at a future time, if and when evidence to support the allegations which he foreshadows is forthcoming, the respondent seeks only that the Court discharge the order made on 2 June 1999.

15. The request of 25 May 1999 not only made reference to the provisions of Sch 6, cl 1(4) of the Act, but specifically set out the provisions of that subclause. Notwithstanding the other material in the notice, I am satisfied that the applicants, in so doing, can be regarded as only intending to cause the Chairperson to act in accordance with that clause.

16. However, Mr Coombs submits that the inclusion of the specific provision for particular items to be placed on the agenda nonetheless characterises the notice as a request for an Extraordinary Meeting, pursuant to Sch 3, model rule 3.

17. I note the distinction between the request for an Extraordinary Meeting pursuant to cl 3 of the model rules, which must be directed to the Secretary, whereas a request in accordance with Sch 6 cl 1(4) is to be directed to the Chairperson. The notice, or request, dated 25 May 1999 was addressed to the Chairperson.

18. I am not persuaded that the reference in model rules 19 and 20 to the preparation of an agenda necessarily means that the power to set out the items, or to prescribe the items for an agenda rest entirely with the Chairperson and the Secretary. The intention of rules 19 and 20 is to ensure that when the meeting is called there is an agenda facilitating the orderly conduct of the meeting and notifying the recipients of the notice that particular matters of business are scheduled for that meeting. The two model rules are expressed as a duty. In both cases they require that the office bearer must consult with the other. The Chairperson is to be concerned in the preparation of an agenda. The Secretary is to prepare an agenda.

19. I am not prepared to regard the specification of agenda items in the request dated 25 May 1999 as any more than an indication of the specific business which motivated the requisitioners to request the meeting. Thus there could be no misunderstanding as to the nature of the business they wished to be discussed.

20. The reference to the request for an extraordinary meeting must be taken to mean a meeting other than in the ordinary course. That is being in the nature of a special meeting, rather than an Extraordinary Meeting within the specific contemplation of model rule 3, in Sch 3 of the regulations.

21. I am satisfied that the request made is properly a request made pursuant to Sch 6, cl 1(4) of the Act, and that the Chairperson was, upon receipt of that request signed by a majority of Councillors for the time being, obliged to convene a meeting of the Council.

22. I am not prepared to vacate the orders made on 2 June 1999.