Minister for Aboriginal Affairs v Geoffrey (Possum) Clark-Ugle , Aaron Clark , Jeremy Clark and Tim Chatfield

[2015] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0006

MINISTER FOR ABORIGINAL AFFAIRS	Applicant
v
GEOFFREY (POSSUM) CLARK-UGLE		First Respondent
AARON CLARK		Second Respondent
JEREMY CLARK		Third Respondent
TIM CHATFIELD		Fourth Respondent

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JUDGES:	MANDIE AND BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 APRIL 2015
DATE OF JUDGMENT:	24 APRIL 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 74
JUDGMENT APPEALED FROM:	Not applicable

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PRACTICE AND PROCEDURE – Application by Minister for joinder pursuant to r 64.03(2) of the Supreme Court (Civil Appeals Amendments) Rules 2014 or alternatively r 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 – Application for leave to intervene pursuant to r 64.10 of the Supreme Court (Civil Appeals Amendments) Rules 2014 – Application for joinder refused – Application for leave to intervene granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A C Neil QC	Mr A Mazzone of the Victorian Government Solicitors Office
For the First Respondent	Mr N Magee QC with Mr M J Corrigan	Stephen P Byrne
For the Second, Third and Fourth Respondents	Mr T Greenway

MANDIE JA:

1. The Framlingham Aboriginal Trust was established by s 8 of the Aboriginal Lands Act 1970 (‘the Act’).  Questions arose relating to the election of members to the committee of management of the trust that were determined in a proceeding before Robson J.[1] His Honour found that the affairs of the Trust were being conducted in an oppressive manner within the meaning of s 27 of the Act and made certain orders for a fresh election of the committee of management. The Office of Aboriginal Affairs Victoria (‘OAAV’) is an office within the Department of Premier and Cabinet and reports to the Minister for Aboriginal Affairs (‘the Minister’). The OAAV provides advice to the Victorian government on Aboriginal policy and planning and is the ‘key vehicle’ through which the Department administers the Act on behalf of the Minister.

   [1]Clark v Framlingham Aboriginal Trust [2014] VSC 367.

1. The reasons of Robson J were handed down on 6 August 2014.  On 8 August 2014, there being no opposition by any party to the proceeding, Robson J granted the OAAV leave to be heard on the form of the orders to be made arising out of his reasons for judgment.  Thereafter, and without opposition, the OAAV remained actively involved in various further hearings including those that were heard by another judge in the Trial Division, Sifris J, which culminated in a judgment handed down on 16 December 2014.[2] In the latter judgment, the Court declared that a meeting conducted on 10 November 2014 was a valid and effective meeting of the Trust despite the absence of a quorum in accordance with s 23(4) of the Act. The Court further declared that various named persons were, as a result, members of the committee of management and that a meeting of the committee should be held on 19 December 2014 to deal with certain business as specified by the order.

   [2]Clark & Ors v Framlingham Aboriginal Trust & Anor [2014] VSC 642.

1. Geoffrey (Possum) Clark-Ugle (‘Clark-Ugle’) was the second defendant in the proceedings before Robson J and Sifris J.  Clark-Ugle has sought leave to appeal against the orders made by Sifris J.

1. By application dated 23 March 2015, OAAV applied for an order that

   
   

   Clark-Ugle comply with r 64.03(2) of the Supreme Court (Civil Appeals Amendments) Rules 2014, by naming the OAAV as a respondent to his application for leave to appeal. Alternatively, the OAAV sought an order that it be added a respondent to the said leave application pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), alternatively an order that the OAAV be permitted to intervene in the leave application pursuant to r 64.10 of the Rules.

1. The OAAV now seeks to amend its application by substituting the Minister on the basis that the Minister is the responsible entity under the Act, whereas the OAAV is simply an administrative agency within the Department and in fact acted at the direction of the Minister (and her predecessor) when participating in the principal proceedings. We would accede to that application.

1. The applicant first submits that the Minister (through the OAAV) is a party within the meaning of s 3 of the Supreme Court Act 1986, namely a ‘person… attending any proceeding, whether named on the record or not’. The applicant next submits that the Minister (through the OAAV) is, within the meaning of r 64.03(2) of the Rules, a ‘person who was a party to a proceeding or matter in which the decision in question was made and who is affected by the application for leave to appeal’ and therefore should be named as a respondent to the application for leave.

1. Clark-Ugle opposes the application and submits that, while the Minister (through the OAAV) may be ‘a party’ within the meaning of the Supreme Court Act 1986, the Minister is not a person ‘affected by the application for leave to appeal’.

1. The applicant cites authorities in support of the proposition that a ‘person affected’ is any person with a real and direct interest in the judgment or orders sought to be appealed. The applicant refers to the statutory responsibilities of the Minister under the Act. The applicant further says that the Minister and OAAV have an immediate practical interest in the outcome of the application for leave because if, as the result of any appeal, the election sanctioned by Sifris J is invalidated, the Trust

will be left unmanaged and the Minister may have to consider appointing an Administrator. The Minister wishes to support the construction of s 27 of the Act adopted by the Court in dispensing with the need for a quorum under s 23(4) of the Act, concerning which the OAAV made extensive submissions before Sifris J.

1. Clark-Ugle, on the other hand, contends that the Minister is not a person affected by the application for leave to appeal merely because the Minister has responsibilities under the Act and may, in certain outcomes, need to exercise statutory powers.

1. In my opinion, the contention of Clark-Ugle is correct. There are no rights or liabilities of the Minister affected by the application for leave to appeal (or the potential appeal) and the obvious ‘interest’ of the Minister in the issues and outcome of the proceedings including her contingent administrative roles under the Act, do not, in my opinion, render the Minister a ‘person affected’ within the meaning of r 64.03(2) of the Rules.

1. I am in no doubt, however, that the position and interest of the Minister under the Act is such that leave to intervene should be granted and this would as well be of assistance to the Court. I do not accept that the Minister should be refused leave to intervene because the Minister (through the OAAV) could not provide submissions of use to the Court or has acted in a ‘partisan’ manner as contended by Clark-Ugle. I do not think that this is so.

1. For the foregoing reasons, I do not consider that the Minister is a respondent to the application but should be granted leave to intervene.

BEACH JA:

1. I agree.

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