Mumbler and Registrar of Aboriginal and Torres Strait Islander Corporations and Anor - [2009] AATA 786

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2009] AATA 786

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/4379

GENERAL ADMINISTRATIVE DIVISION )
ReRobert Mumbler & Ors

Applicant

AndRegistrar of Aboriginal and Torres Strait Islander Corporations

First Respondent

AndDunghutti Elders Council (Aboriginal Corporation)
Second Respondent

DECISION

TribunalMr R P Handley, Deputy President
Date14 October 2009
PlaceSydney
DecisionThe second respondent’s interlocutory application is granted and the application for review is dismissed.
....................[sgd]......................
Mr R P Handley
Deputy President

CATCHWORDS

ABORIGINAL CORPORATIONS - Whether Tribunal has power to review positive decision of Registrar to register documents – Registrar’s powers limited to registering or refusing to register a document submitted for lodgment – power to correct a register kept by the Registrar lies with the Court – Tribunal has no jurisdiction

PRACTICE AND PROCEDURE - Whether application frivolous or vexatious - whether outcome of proceedings is futile and of no practical benefit or effect - whether application should be dismissed - application for review dismissed

…

RELEVANT ACTS

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 42B

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 407-1, 576-15, 617-1, 620-1, 620-5, 623-1, 658-1, 694-35

…

CITATIONS

Re 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

Re Mumbler and Ors and The Registrar of Aboriginal and Torres Strait Islander Corporations and Dunghutti Elders Council [2009] AATA 159

Re Williams and Australian Electoral Commission and the Greens (Party joined) (1995) 38 ALD 366; (1995) 21 AAR 467; [1995] AATA 160

Attorney General v Wentworth (1988) 14 NSWLR 481

Re Reddish and Civil Aviation Safety Authority [1999] AATA 721

Ford v Child Support Registrar [2009] FCA 328

Re Irving and Repatriation Commission [1997] AATA 616

…

REASONS FOR DECISION

14 October 2009

Mr R P Handley, Deputy President

The background to this matter involves a dispute between two groups of people who sought to be registered as the directors of an Aboriginal corporation in 2007. The Registrar of Aboriginal and Torres Strait Islander Corporations (the First Respondent and referred to here as “the Registrar”) registered the details of those in the first 2007 group but refused to register the details of those in the second 2007 group on the ground that they had not been validly elected. Those in the second 2007 group whose details the Registrar refused to register (Robert Mumbler, Lewis Kelly, Harold Smith, Betty Champion and Heather Anderson-Ritchie - the Applicants) applied to the Tribunal for an order setting aside the Registrar’s decision to refuse registration of their details.
In the meanwhile, those in the first 2007 group have served their 12 months in office and a further election of directors was held at an Annual General Meeting (AGM) on 27 September 2008. Those directors elected in 2008 opposed the application to the Tribunal by the second 2007 group on the ground that the application was futile, and have applied to have that application dismissed.
The application for dismissal is brought by the Dunghutti Elders Council (Aboriginal Corporation) (joined as the Second Respondent in these proceedings, and also referred to here as “the DEC”) under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the ground that “the application is frivolous or vexatious”.
The issues for the Tribunal in these interlocutory proceedings are, first, whether the proceedings are vexatious and, second, whether the Tribunal should exercise its discretion to dismiss the proceedings.

Background

The Applicants applied to the Tribunal for the review of a decision of a delegate of the Registrar dated 22 August 2008 to refuse to register a document “Notification of a change to corporation officers’ details”. The present interlocutory decision only deals with the DEC’s application for the proceedings to be dismissed. An application by the Applicants for a decision on a further interlocutory matter – that there be a separate hearing on a preliminary issue as to the validity of a request dated 17 August 2007 that a special general meeting of the DEC be convened – was withdrawn at the hearing on 15 September 2009.
The matter has been the subject of two previous interlocutory applications decided by Deputy President Walker on 23 October 2008 (Re Mumbler & Ors in their elected capacity as Directors of the Dunghutti Elders Council and Office of the Registrar of Indigenous Corporations [2008] AATA 947 (Mumbler 2008)) and 13 March 2009 (ReMumbler & Ors and the Registrar of Aboriginal and Torres Strait Islander Corporations and the Dunghutti Elders Council [2009] AATA 159 (Mumbler 2009)).

The dismissal application

As stated above, the DEC requests that the Tribunal make an order that the application for review be dismissed on the ground that it is futile and therefore “frivolous or vexatious”. Mr McCarthy, for the DEC, contended that the proceedings have no practical benefit for the Applicants even if the Tribunal were to set aside the Registrar’s decision not to register the Applicants’ “Notification of a change to corporation officers’ details” form dated October 2007. This would have the effect that two such documents would be registered by the Registrar: the form already accepted by the Registrar for registration in respect of the first 2007 group and the form lodged by the Applicants, the second 2007 group.
Mr McCarthy noted that registration of the additional document would not confer on the Applicants (who are named in the form) the status of a director or member of a governing committee of the DEC. This is because the Registrar’s powers are limited to registering or refusing to register the details of directors and do not extend to changing any details once registered, or removing details from the register. However, an interested person may apply to the Court for the rectification of the register.

Submissions

Mr Svehla, for the Applicants, contended that the proceedings are not futile and the DEC’s application for dismissal should be refused. The power to dismiss should only be exercised in the most exceptional circumstances. He referred to the comment by Deputy President Walker in Mumbler 2009, at [36], that “the affairs of the second respondent, including the question of its proper membership, are the subject of acrimonious dispute among the Dunghutti people”. The Applicants contend that DP Walker’s recognition of the significance of the issues in these proceedings was reflected in his ordering a compulsory conciliation before very senior members of the Tribunal, Deputy President Tamberlin and Senior Member Bell. The Applicants also refer to DP Walker’s comment, at [34], that:
Once the Tribunal has before it a valid application in relation to a reviewable decision, it cannot decline to deal with it in the most efficient manner practicable simply because another remedy might be available.
In my view, dealing with an application in an efficient manner does not preclude, in an appropriate case, exercising the Tribunal’s power to dismiss an application if the Tribunal finds the proceedings to be vexatious, although I acknowledge that the power of dismissal must be exercised cautiously and sparingly: Re Williams and Australian Electoral Commission and the Greens (Party joined) (1995) 38 ALD 366; [1995] AATA 160 (Williams), at [31]. I also note that the Tribunal has sought to resolve the matter by directing the matter be referred to conciliation, but that the conciliation was unsuccessful.
The Applicants, while acknowledging that the Tribunal does not have power to grant relief in a form that would recognise the Applicants as previous directors of the DEC, contend that there are significant practical benefits flowing from a final decision in these proceedings. They state (in submissions faxed on 4 September 2009, at [10.10]):
A determination within the present proceeding would materially assist the Pending Applicants in their attempt to either be admitted or recognised as members of DEC or the resolution of wider disputes amongst Dunghutti people and within the membership and governance of the DEC itself.
The Applicants seek to distinguish the facts of this matter from those in Williams, and contend that “the accuracy of the registers maintained by the Registrar is an essential feature of the CATSI Act … which should not be disregarded for the sake of vague assertions of confusion” (submissions filed on 11 September 2009, at [5.2]). They contend that the accuracy of the register maintained by the Registrar is important to the broader public entitled to rely on it. Mr Svehla also submitted that the Registrar could, of his own motion, exercise his powers to correct the registers required to be maintained by the Registrar pursuant to s 418-1 of the CATSI Act.
Mr McCarthy said there is no power in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act) for the Registrar to review positive acts, for example, the decision of the Registrar to register the details of the first 2007 group of persons claiming to be DEC officers included in the form that was accepted for registration. Where the status of a person such as a director or member of a governing committee is in issue, that status can only be determined by a court of competent jurisdiction making an appropriate declaration. Mr McCarthy noted DP Walker’s comment in Mumbler 2008, at [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”.
Mr McCarthy submitted that a determination in favour of the Applicants would have no practical relevance, and registration of the additional form would be of historical interest only because under the DEC’s then constitution, if the Applicants had been elected at a 2007 general meeting they would have ceased to hold office at the 2008 AGM with the election of new directors. However, the registration of the additional form would be a source of confusion for members of the public who consulted the Register. He also noted that the DEC has now adopted a new constitution at a Special General Meeting (SGM) on 27 June 2009, in accordance with the requirements of the CATSI Act, and the new constitution was registered by the Registrar on 30 June 2009.
Mr McCarthy contended the Applicants are using these proceedings for a collateral purpose. Despite DP Walker’s comments, they have persisted in the proceedings but without seeking to have their application heard and determined. Mr McCarthy noted that the Applicants have attempted to have their complaints ventilated in a ‘no costs’ jurisdiction – that of the Tribunal – for which they are legally aided, rather than in the appropriate forum – the Federal Court – in which legal aid would not be available for them and where costs follow the event. Moreover, the Applicants did not take the opportunity to stand for election at the 2007 or 2008 AGMs nor have they requisitioned a SGM to raise their concerns.
Mr McCarthy referred to the decision in Williams. The Tribunal, comprising the then President, Justice Mathews, together with Deputy Presidents Justice Hill and Justice Beaumont, referred to the test to be applied in determining whether proceedings are vexatious as set out in Attorney General v Wentworth (1988) 14 NSWLR 481, where at 491, Roden J said:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
In Williams, the Tribunal found no legitimate purpose could be achieved by allowing the proceedings to continue because they were devoid of any practical effect. Thus, the proceedings were being used for a collateral purpose and for that reason alone were vexatious. The Tribunal therefore dismissed the application pursuant to s 42B(1) of the AAT Act.
Mr McCarthy said, in the present case, there is evidence that the proceedings are being used for a collateral purpose, are devoid of any practical effect, and would impose unnecessary expense and hardship upon the respondents if the proceedings are allowed to continue. For these reasons, the application should be dismissed as being misconceived and futile.
Mr Markus, for the Registrar, stated that the outcome of these proceedings will not have any effect on what decisions the Registrar may make in the future in relation to the DEC. Registration of the “Notification of a change to corporation officers’ details” form dated October 2007 giving details of the Applicants as directors of the DEC would not affect who were or were not recognised as directors of the DEC at the relevant time. He drew attention to s 658-1 of the CATSI Act, which states that one of the aims of the Registrar in performing his or her functions and exercising his or her powers is to provide certainty. He said the Applicants are inviting the Tribunal to make a decision requiring a second document to be included on the register, which would only cause confusion.

the relevant legislation

The decision in respect of which the Applicants seek a review is a decision of a delegate of the Registrar dated 23 July 2008 to refuse to register a document - “Notification of a change to corporation officers’ details” - pursuant to s 407-1(1)(b) and (e) of the CATSI Act, a decision that was affirmed after a review by another delegate on 22 August 2008. Section 407-1 states:
Registrar may refuse to receive or register documents
(1) If the Registrar is of the opinion that a document submitted for lodgment:
(a) contains matter contrary to law; or
(b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or
(c) because of an omission or misdescription has not been duly completed; or
(d) contravenes this Act; or
(e) contains an error, alteration or erasure;
the Registrar may refuse to receive or register the document and may request:
(f) that the document be appropriately amended or completed and resubmitted; or
(g) that a fresh document be submitted in its place; or
(h) if the document has not been duly completed--that a supplementary document in the approved form be lodged.
(2) A request under subsection (1) is not a legislative instrument.
In the Statement of Reasons for his decision, the delegate said that, in his opinion, the form:
contains matter, that in a material particular, is false or misleading in the form of the context in which it is included … [and] the officers’ details submitted are for officers which [sic] were not validly appointed. For the same reasons, in my opinion the document contains an error.
Section 576-15 deals with “irregularities”. Relevantly, s 576-15(6) states:
(6) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:
…
(b) an order directing the rectification of any register kept by the Registrar under this Act;
…
and may make such consequential or ancillary orders as the Court thinks fit.
Thus, the Act provides that the power to correct a register kept by the Registrar lies with the Court and not with the Registrar.
Section 694-35(1) provides that where the expression the “Court” is used, the “Court” means any of the following courts:
(a) the Federal Court;
(b) the Supreme Court of a State or Territory;
(c) the Family Court of Australia;
(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.
Section 623-1 is the source of the Tribunal’s jurisdiction, stating:
AAT review of reviewable decisions
An application may be made to the AAT for the review of a reviewable decision that has been affirmed, varied or set aside under section 620-1 or 620-5.

Section 620-1 empowers the Registrar to reconsider a reviewable decision, and s 620-5 provides that a person whose interests are affected by a reviewable decision may request the Registrar to reconsider a reviewable decision. Section 617-1 sets out those decisions that are reviewable decisions, including item 34, “To refuse to receive or register a document submitted for lodgment”. Section 658-1 sets out the functions of the Registrar, including maintaining “such registers as the Registrar thinks appropriate” (s 658-1(1)(b)).

Are the proceedings vexatious and should the application be dismissed?

As stated above, the issues to be determined in relation to the application for dismissal are whether the application is vexatious for the purposes of s 42B(1) of the AAT Act, and whether it should be dismissed. In Williams, at [39], the Tribunal emphasised that the power to dismiss “must be exercised cautiously and sparingly”. The Tribunal found, at [40], that “the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect”. While the proceedings had not been instituted vexatiously, they had become vexatious:

when the only interest of the applicant that could possibly have been affected by the disputed decision, ceased to exist. It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further.

The Tribunal therefore exercised its power to dismiss the application for review.

In Re Reddish and Civil Aviation Safety Authority [1999] AATA 721, (cited with approval by Ryan J in Ford v Child Support Registrar [2009] FCA 328, at [35]), DP Blow, in dismissing an application under s 42B, said, at [33]:
In this context, "frivolous" means "obviously unsustainable": Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274. The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot. I have therefore decided to dismiss them all pursuant to s.42B(1)(a) of the AAT Act.
In Re Irving and Repatriation Commission [1997] AATA 616, at [22], the Tribunal, in exercising its discretion to dismiss an application, had regard to the lack of any practical effect of a successful outcome and the legal costs incurred by the respondent in the proceedings.
In the present proceedings, the DEC contends that a successful outcome would be futile and of no practical benefit to the Applicants. The Applicants refute this and contend that there is a benefit in so far as the historical record will be corrected.
Having considered the parties’ submissions referred to above, in my view the application for review is vexatious and should be dismissed. First, if the Tribunal were to find for the Applicants and set aside the Registrar’s decision, the effect of this would be that the Registrar would be required to register the details of the Applicants set out in the document “Notification of a change to corporation officers’ details” lodged with the Registrar on 22 October 2007. This would not have the effect of conferring on the applicants the status of directors of the DEC for 2007/2008 because the power of the Registrar under the CATSI Act is limited to refusing to receive or register documents (s 407-1), and does not include the rectification of the register in the case, for example, of a dispute. In that instance, the power to rectify the register lies with the Court to which an application can be made under s 576-15. In the light of this specific provision giving the Court the power of rectification, I do not accept Mr Svehla’s submission that the Registrar has power to correct the register of his or her own motion.

I note DP Walker’s comment in Mumbler 2008, at [15], quoted above, “that the real remedy for the applicants’ claims is to be found in another jurisdiction”. While in Mumbler 2009, DP Walker subsequently directed that the proceedings be referred for conciliation, I also note his comment, at [10], that mediation or conciliation:
would give the applicants and the second respondent’s directors an opportunity for the first time since the start of this dispute to meet in person and discuss the dispute. Under the auspices of the tribunal, and with the assistance of a member, the parties might be able to resolve it.
Since directors for 2008/2009 were elected at the AGM held on 27 September 2008, the only effect of a successful outcome to the Applicants’ application for review would be the registration of their details on the register alongside those of the first 2007 group for the 2007/2008 year. In terms of the aim of the Registrar to provide certainty, set out in s 658-1 and referred to by Mr Markus, I agree with the submissions of both respondents that the registration of two sets of persons on the register is likely only to cause confusion to those who may subsequently inspect the register.
I also note that the DEC has now adopted a new constitution, registered on 30 June 2009, the terms of which may well affect the election of future directors. Thus, scrutiny and interpretation of provisions of the (old) constitution in effect at the time of the disputed elections, by reference to the provisions of the CATSI Act, may be purely academic.
The time and costs involved in these proceedings continue to mount. I understand that the applicants have been legally aided in the proceedings before the Tribunal while the DEC has borne its own costs. The DEC suggested that the Applicants have chosen to pursue their application in the Tribunal because of its being a no costs jurisdiction and because of the availability of legal aid. The DEC contended that the Applicants may not be able to access legal aid if they were to bring proceedings in the Federal Court, which is the appropriate forum for challenging the validity of the election of the 2007/2008 directors. These are matters about which I do not intend to make any findings. However, the expense of allowing proceedings to continue where any successful outcome would be of no practical effect is a relevant consideration.
I note also the objectives of the Tribunal stated in s 2A of the AAT Act requiring that it carry out its functions with the objective of providing a mechanism that is fair, just, economical, informal and quick. This matter has now been ongoing for more than 12 months – since the filing of the application on 18 September 2008. During that time, there have been two previous interlocutory decisions, and an attempted but ultimately unsuccessful conciliation.
In my view, in light of the fact that even if this matter goes to hearing and there is a successful outcome for the Applicants, this will be of no practical benefit to them in terms of their ongoing dispute, the proceedings should not be allowed to continue. The application for review has now become futile and therefore vexatious. If the Applicants wish to pursue their claim, they can do so in another forum. It is therefore appropriate for the Tribunal to exercise its discretion to dismiss the application under s 42B(1) of the AAT Act.
The application under review is dismissed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed: .............[sgd]..............................................................
A Veness, Associate

Date of Interlocutory Hearing:           15 September 2009
Date of Decision:  14 October 2009
Applicant representative:                   Ms J Abouaf, Blake Dawson
Applicant counsel:  Mr J T Svehla
1^st Respondent representative:         Mr A Markus, Australian Government Solicitor

2^nd Respondent representative: Mr E Neumann, Eddy Neumann Lawyers
2^nd Respondent counsel: Mr J A McCarthy with Mr J Kildea