Mumbler and Ors in Their Elected Capacity as Directors of the Dunghutti Elders Council (Aboriginal Corporation) and Office of the Registrar of Indigenous Corporations

[2008] AATA 947

Administrative Appeals Tribunal

DECISION [2008] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No 2008/4379

GENERAL ADMINISTRATIVE DIVISION        )

ReRobert Mumbler, Lewis Kelly, Harold Smith, Betty Champion and Heather Anderson-Richie in their elected capacity as Directors of the Dunghutti Elders Council (Aboriginal Corporation)

Applicant

And      Office of the Registrar of Indigenous Corporations

Respondent

And      Dunghutti Elders Council (Aboriginal Corporation)

Second Respondent

DECISION (CORRIGENDUM)

TribunalProfessor GD Walker, Deputy President

Date23 October 2008

PlaceSydney

WHEREAS:

1.The Tribunal published its Decision in this matter on 23 October 2008.

2.The Tribunal wishes to amend the Decision to rectify a number of errors.

3.Now the Tribunal therefore orders that the Decision of the Tribunal should be amended to reflect the following amendment to Paragraph 6 of the decision:

I am of the view that that does not give this Tribunal the jurisdiction for which the applicant argues.

4.Furthermore, the Tribunal orders that the Decision of the Tribunal should be amended to reflect:

Counsel for the Applicant   J Svehla
Counsel for the Second Respondent         J McCarthy, QC and J Kildea

..............[sgd]...........................

Professor GD Walker

Deputy President

Administrative Appeals Tribunal

DECISION

[2008] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No 2008/4379

GENERAL ADMINISTRATIVE DIVISION        )

ReRobert Mumbler, Lewis Kelly, Harold Smith, Betty Champion and Heather Anderson-Richie in their elected capacity as Directors of the Dunghutti Elders Council (Aboriginal Corporation)

Applicant

And      Office of the Registrar of Indigenous Corporations

Respondent

And      Dunghutti Elders Council (Aboriginal Corporation)

Second Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date of Decision                 26 September 2008

Date of Written Reasons  23 October 2008

PlaceSydney

DecisionFor the reasons given orally at the hearing on 26 September 2008, the tribunal’s decision is that:

(1)The Dunghutti Land Council (Aboriginal Corporation) is joined as a party to the proceedings; and

(2)The application for a stay is refused.

..............[sgd]................................

Professor GD Walker

Deputy President

CATCHWORDS – PRACTICE AND PROCEDURE – joinder application – granted - stay application – tribunal lacks jurisdiction to make the orders requested – stay application refused.

LEGISLATION

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act): ss

CITATIONS

Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338

Re Griffiths and Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380

REASONS FOR DECISION

23 October 2008 Professor GD Walker, Deputy President

1. At the conclusion of the interlocutory hearing of the above matter the terms of the decision intended to be made and the Deputy President’s reasons were stated orally. After service upon the applicant and the respondent of a copy of the decision that was in fact made, both parties pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the style of an extempore decision, they are in fact the reasons for the decision.

3.      There were two applications before the tribunal.  One was for the joinder of the group of persons now known as the Second Respondent and that application was not opposed and I made that direction accordingly.  The second point relates to the grant of a stay of the various decisions made by the reviewing officer on 22 August 2008 affirming the decision by the delegate not to register the document Notification of a Change to Corporation Officer’s Details submitted by NTSCorp on 22 October 2007 on behalf of the applicants in these proceedings.  The reviewing officer also affirmed certain decisions to register certain documents and the applicants seek a stay of both of those orders.

4. It was not disputed that the tribunal has the power to review a decision not to register a document pursuant to section 620-5(5) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).  It was disputed that it has the power to review positive decisions to register documents.  It is clear that there is no express power to review positive acts made by the registrar and normally this tribunal, as a statutory executive body, considers itself strictly bound by the terms of any grant of power to review.

5.      On behalf of the applicant, Mr Svehla submitted that the decision affirming those positive decisions gives the tribunal the power to review them by application of the reasoning in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, under which a purported exercise of power can give rise to jurisdiction in this tribunal, even if the exercise was itself invalid.

6.      The authorities do, however, make it clear that there must be a purported exercise of the jurisdiction, given this tribunal’s position that it requires an express grant of jurisdiction in order to exercise its powers.  I am of the view that that does give this tribunal the jurisdiction for which the applicant argues.

7.      An alternative argument advanced was that the positive decisions were ancillary to the decision not to register the document.  Although that is true in a sense I do not think that is sufficient to give this tribunal jurisdiction, as no authorities were cited that would support the proposition that there is such an ancillary jurisdiction.  This tribunal is a statutory body and not a court, statutory or otherwise, and has nothing in the nature of inherent powers.

8.      The applicant also submitted that it is not necessary on such an application for a stay for the tribunal to make final determinations on matters of jurisdiction.  I think that is correct.  I think certain aspects of jurisdiction could be left for determination at a later time or at the hearing but in this case, the issue of jurisdiction is quite central and I think it does need to be resolved as a matter in limine before the question of a stay arises. 

9.      The grant of stays is governed by the principles enunciated in Re Griffiths and Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380 , which requires the tribunal to consider four factors: the review application’s prospects of success, any hardship to the applicant or other parties if there is no stay, whether public safety would be affected – and that doesn’t arise in this case – and whether the review would be made nugatory if no stay were granted.

10.     As to the prospects of success of the review application, on the face of it, one would have to say there is some prospect of success because the materiality of any defects in the notice could be a matter of legitimate contention.

11.     As to the question of hardship to the applicant, it is not disputed that the central practical issue in this case is the disposition of a substantial fund likely to be paid to members of the Dunghutti community by the state government in compensation for the extinguishment of certain native title rights, an amount possibly exceeding $6 million.  If there were any immediate prospect of that fund being disposed of in a way that might be adverse to the claimed interests of the applicant, then there would certainly be a question of hardship, but it is not disputed that the state government will not pay the funds until the question of entitlement is resolved.

12.     The applicant submits that the meeting to be held tomorrow could, or will, result in the election of a new body of directors and that it would, in a sense, freeze the list of parties likely to be entitled to participate in the management of the council. While that is probably true at least in the medium term, it has not been shown that in the longer term the applicant’s rights, if they are rights, could not be vindicated in a manner that avoids any loss to them.

13.     As to whether the review would be made nugatory, it is not suggested, in a direct sense, that would be a consequence of not granting a stay, but the submission is that, in a practical sense, the applicant’s rights would be defeated through the election of new directors and through the new directors acting on their own concepts of which persons are entitled to be members of the organisation.

14.     There is a practical sense in which that is correct, but I think that what the applicant is asking the tribunal to do is to structure a rather elaborate arrangement that goes beyond fixing or freezing the status quo.  It involves the installation of directors who were not previously directors and the removal of those who, before the relevant acts and transactions, were the directors.

15.     I think that there is force in the second respondent’s submission that the real remedy for the applicant’s claims is to be found in another jurisdiction.  The applicant maintains that as a practical matter, it is not able to do that and one can only sympathise with that, but in my view it does not give the tribunal jurisdiction to construct a detailed and rather intricate system for protecting the parties’ positions in proceedings before this tribunal.  That would be using the tribunal’s interim powers in a way in which, in my view, they were not intended to be used.  The application for a stay is therefore denied.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker.

Signed:…………………[sgd]…………………………………
             Renee Wallace, Associate

Date/s of Hearing  26 September 2008
Date of Decision  26 September 2008
Date of Written Reasons  23 October 2008
Counsel for the Applicant  J McCarthy, QC and J Kildea
Solicitor for the Respondent  A Markus, AGS
Consel for the Second Respondent        J Svehla