Malone v B &M Aboriginal Corporation (in Administration)

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FEDERAL COURT OF AUSTRALIA

Malone v B &M Aboriginal Corporation (in Administration) [2024] FCA 270  

Appeal from: Application for Stay of Orders:  QGC Pty Limited v Alberts (No 5) [2024] FCA 139
File number: QUD 143 of 2024
Judgment of: LOGAN J
Date of judgment: 18 March 2024
Catchwords: PRACTICE AND PROCEDURE – where the applicants seek a stay of the orders of the primary judge pending the determination of an application for leave to appeal and, thereafter, an appeal – where the controversy involves monies paid into Court relating to an Indigenous Land Use Agreement (ILUA) – where the primary judge made orders directing the payment of the monies to an interested party – where there is a dispute concerning the application of the terms of the ILUA and whether the intended recipient of the funds is so entitled – where the intended recipient is in administration and a significant portion of the funds would be imminently consumed by the administrator’s costs – whether the balance of convenience favoured a stay of the orders of the primary judge – stay granted 
Legislation:

Corporations Act 2001 (Cth) s 439A

Native Title Act 1993 (Cth) s 85A

Cases cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Conlon v QGC Pty Limited (No 2) (2017) 359 ALR 460

QGC Ltd v Alberts [2020] FCA 1869

QGC Ltd v Alberts (No 2) [2021] FCA 540

QGC Ltd v Alberts (No 3) (2022) 404 ALR 493

QGC Ltd v Alberts (No 4) [2022] FCA 1590

QGC Pty Limited v Alberts(No 5) [2024] FCA 139

Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2) (2010) 88 IPR 633

TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381

Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445

Division: General Division
Registry: Queensland
National Practice Area: Native Title
Number of paragraphs: 40
Date of hearing: 18 March 2024
Counsel for the Applicants: Mr P Trout
Solicitor for the Applicants: Trevor Huff Lawyers
Counsel for the Respondent: Mr B Kidston
Solicitor for the Respondent: Piper Alderman

ORDERS

QUD 143 of 2024
BETWEEN:

CHRISTINE MALONE

First Applicant

DOROTHY DAYLIGHT

Second Applicant

MARGARET HORNAGOLD (and others named in the Schedule)

Third Applicant

AND:

B &M ABORIGINAL CORPORATION (IN ADMINISTRATION) (ICN9678)

Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

18 MARCH 2024

THE COURT ORDERS THAT:

1.The notice of appeal attached to the application for leave to appeal filed on 14 March 2024 be deemed to be a notice of appeal with any requirement for filing and service of the same being dispensed with.

2.Any appeal so instituted be heard together with the application for leave to appeal with submissions in respect of leave being treated as submissions on a substantive appeal, to the end that, if leave be required and granted, any consequential appeal be determined instanter.

3.The operation of orders 2, 3 and 5 of the orders made by the Court on 26 February 2024 be stayed until the…

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Details
Case
[2024] FCA 270
Decision Date

CaseChat Overview and Summary

The case of Malone v B & M Aboriginal Corporation (in Administration) was heard in the Federal Court of Australia, where the applicants sought a stay of the orders made by the primary judge pending the determination of their application for leave to appeal and, if granted, the subsequent appeal. The controversy involved monies paid into court in relation to an Indigenous Land Use Agreement (ILUA). The primary judge had made orders directing the payment of these funds to a particular party, a decision which the applicants contested. The primary issue before the court was whether the balance of convenience favoured a stay of the primary judge's orders, given the imminent consumption of a significant portion of the funds by the administrator's costs and the ongoing dispute about the application of the ILUA terms and the entitlement of the intended recipient to the funds.

The court considered the nature of the dispute and the potential consequences of allowing or denying the stay. The applicants argued that without a stay, the funds would be depleted, leaving insufficient resources to cover the costs of the intended recipient, who was in administration. The court examined the risk of substantial prejudice to the applicants if the stay was not granted, weighed against the potential prejudice to the intended recipient if the stay was granted. The court found that the balance of convenience favoured a stay, as the risk of significant financial prejudice to the applicants outweighed the potential harm to the intended recipient. The court noted that the intended recipient was in administration and that the funds would soon be consumed by administrative costs, which further supported the grant of a stay.

In light of the arguments presented and the considerations outlined, the court granted the stay of the primary judge's orders pending the determination of the application for leave to appeal. The court deemed the notice of appeal attached to the application as a valid notice of appeal, dispensing with the requirement for separate filing and service of the notice. The appeal and application for leave were to be heard together, with submissions on leave treated as submissions on the substantive appeal. The court also stayed the operation of certain orders made by the primary judge until the hearing and determination of the appeal or further order. The costs were reserved, and liberty to apply was granted.

Orders

Orders of the court

1. The notice of appeal attached to the application for leave to appeal filed on 14 March 2024 be deemed to be a notice of appeal with any requirement for filing and service of the same being dispensed with.

2. Any appeal so instituted be heard together with the application for leave to appeal with submissions in respect of leave being treated as submissions on a substantive appeal, to the end that, if leave be required and granted, any consequential appeal be determined instanter.

3. The operation of orders 2, 3 and 5 of the orders made by the Court on 26 February 2024 be stayed until the hearing and determination of the application for leave to appeal and the appeal or further earlier order.

4. Costs be reserved.

5. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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