New South Wales Aboriginal Land Council v Mark Hoddinott
[1999] NSWLEC 41
•02/12/1999
Land and Environment Court
of New South Wales
CITATION:
New South Wales Aboriginal Land Council V Mark Hoddinott & Anor [1999] NSWLEC 41
PARTIES
APPLICANT
New South Wales Aboriginal Land CouncilFIRST RESPONDENT
SECOND RESPONDENT
Mark Hoddinott
The Minister for Aboriginal Affairs
NUMBER:
40196 of 1998
CORAM:
Pearlman CJ
KEY ISSUES:
:- Interlocutory injunction - principles - no serious case to be tried - Local Aboriginal Land Council
LEGISLATION CITED:
Interlocutory injunction - principles - no serious case to be tried - Local Aboriginal Land Council
DATES OF HEARING:
01/29/1999; 02/12/1999
EX TEMPORE JUDGMENT DATE:
02/12/1999
LEGAL REPRESENTATIVES:
APPLICANT
Mr G E Underwood, BarristerSOLICITORS
The Law Firm of Solari'sFIRST RESPONDENT
Dr G A Flick SCSOLICITORS
Henrietta J DeanSECOND RESPONDENT
SOLICITORS
Mr P F Singleton
Crown Solicitor
JUDGMENT:
Introduction
1. Today is the second day of a hearing on a notice of motion seeking discharge of the interlocutory order which I made on 22 October 1998. As events unfolded, there is no opposition to an order to that effect because this morning the applicant filed an amended class 4 application which changed completely the original prayer in the class 4 application upon which the interlocutory order was based. There did not seem to be any opposition to the amendment of the class 4 application and so far as it is necessary for the record I grant leave for that amendment to be made.
2. What occurred as a result of that amendment was that the applicant made an application for a further interlocutory order in terms of the second prayer in its new amended application. In other words it seeks the following order:
“An order that the First Respondent be restrained from tendering for the sale, entering into any contracts for the sale or lease or disposal of the property contained in Certificate of Title folio identifier 633/823717 other than in accordance with approvals by the applicant for the sale and lease of the property on 6th February, 1997 and/or 26th February, 1998.”3. Accordingly, the Court is faced with looking afresh at an application for an interlocutory injunction. The Court in that regard is bound by authority as to the steps it should take. In Castlemaine Tooheys Limited & Ors v The State of South Australia (1986) 161 CLR 148 Mason ACJ said as follows at page 153:
“The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried on that the plaintiff has made but a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.”
So I turn, as I turned in October, to the question of a serious case to be tried.
4. The first order that the applicant claims is a declaration that the appointment of the first respondent as administrator to the Darkinjung Local Aboriginal Land Council on 2 September 1998 is invalid and of no effect.
5. In its amended points of claim the applicant puts the basis for that order on four grounds. First, it claims that the appointment was made without consultation or proper consultation with the applicant pursuant to the requirements of s 57(2) of the Aboriginal Land Rights Act, 1983 (“the Act”), which provides that:
“57(2) An administrator may be appointed under this section only on the recommendation of the Minister made after consultation with the New South Wales Aboriginal Land Council.”
6. The evidence about that aspect is set out in a number of affidavits. One of those is the affidavit of John Carter sworn 23 December 1998 in which Mr Carter deposes to a conversation which took place on 28 August 1998 at which he was present, between the chairperson of the applicant and the director-general of the Department of Aboriginal Affairs (that is, on behalf of the Minister). It was a conversation about whether Mr Hoddinott should be removed from his then current appointment and whether, if he was removed, who was going to act (another name was suggested), whether it would be too disruptive to have another administrator for a short period and then appoint another one after that, and ultimately discussing the fact that it ought to be Mr Hoddinott.
7. Furthermore, prior to that conversation, as the affidavit of Mr J Fairey, who is an officer in the Department of Aboriginal Affairs, discloses, the Minister wrote on 14 July 1998 to the chairperson of the New South Wales Aboriginal Land Council saying, amongst other things that:
“In my view, it would be appropriate for NSWALC to immediately commence advertising for a new administrator to be selected and in place upon Mr Hoddinott's completion of his term as administrator on 2 September 1998, or his removal, if the new administrator can be selected before September.”
8. What I must do is consider the evidence that I presently have. On that evidence, I am satisfied that there was consultation and it is unlikely that there is a serious question be tried on that ground.
9. The second ground about invalidity is a failure of the appointment to meet the pre-conditions set out in s 57(1), or, alternatively, that it was not reasonably open to find that those conditions had been met. Section 57(1) sets out six conditions and they are in the alternative. It is only necessary for one of them to be met. I think that the evidence as it presently is shows that one of them was met and that there is no serious question to be tried on this ground. The one that I think was met is s 57(1)(b), which provides a pre-condition to the appointment of an administrator; “if the Council fails to comply with Section 32, 34A or 34B”. I have looked at s 32 and in particular subs (5). It provides that, as to the keeping of accounts, each Aboriginal Land Council must furnish to the New South Wales Aboriginal Land Council and to the Minister the audited financial statements and a certificate of the auditor, in a form prescribed by the regulations, not later than four months after the end of each financial year. That could not have been met according to the evidence that is in front of me which comprises the accounts for the year ended 30 September 1997. They are annexed to the affidavit of Mr Fairey and they contain the auditor's report and certificate which is dated 28 May 1998. If the auditor had not made his certificate until that date, then audited accounts and a certificate could not have been furnished to the New South Wales Aboriginal Land Council and the Minister within four months of the end of the financial year. So there is no serious question to be tried on that ground.
10. The third basis for challenge to the validity of the appointment is set out in the points of claim as follows:
“In making the recommendation the second respondent, (that is the Minister), took into account an irrelevant consideration or was motivated by an improper purpose, namely:
(1) the exercise of discretion of the first respondent as administrator would be subject to dictation by the second respondent and/or the Department of Aboriginal Affairs;
(2) the exercise of discretion of the first respondent as administrator was to be exercised subject to the constraints contained in a document entitled ‘Interim Terms of Appointment’.”
11. That document is annexed to the affidavit of Mr K J Foster sworn on 15 October 1998. It sets out a number of responsibilities of the administrator in relation to accountability. It sets out his terms of appointment, it requires him to hold an annual general meeting to elect office bearers, it requires him to provide the Minister with a report relating to his previous term as administrator, it requires him to provide to the Minister copies of the minutes of meetings, it requires him to provide monthly reports, it requires him to complete any outstanding annual reports. He is required to report any suspected misappropriation, and to report on whether the Local Aboriginal Land Council is pursuing matters with the police as to prosecutions. He must cause proper records to be kept, he must train office bearers, he must hold monthly meetings and he is to conduct all the functions of the Local Aboriginal Land Council as well as preparing a plan of management and preparing budgeting and finance material. Those matters seem to me not in any way to constrain the first respondent in the exercise of his discretion. They are reporting matters, they are accountability matters, but I do not think that his discretion is fettered by them or that they are to be exercised in any way so that his discretion is constrained. Therefore I do not think there is a serious case to be tried on that ground either.
12. The last ground also depends on the terms of appointment. It claims that the appointment of the first respondent purported to delegate to the second respondent or to the Department of Aboriginal Affairs the power to revoke the appointment at any time within the period of the six months of the appointment. That claim is made because the last clause, numbered 10, of the interim terms of appointment provides as follows:
“10. The administrator is required to comply with the above terms of appointment. Failure to comply may be grounds for the recommendation for the administrator’s removal.”
I do not think that is a delegation of a power of appointment. It is a stricture. It warns that failure to comply may constitute grounds for a recommendation. It does not in terms confer on any person a power of removal. I do not think it amounts to a delegation. Accordingly I do not think there is a serious question to be tried on that ground either.
13. So overall, looking at the case afresh in the terms of the evidence that is now before me and in view of the full submissions made today, I do not think there is a serious question to be tried on the ground of invalidity.
14. Let me go then to the second ground. The second prayer seeks:
“An order that the First Respondent be restrained from tendering for the sale, entering into any contracts for the sale or lease or disposal of the property contained in Certificate of Title folio identifier 633/823717 other than in accordance with approvals by the applicant for the sale and lease of the property on 6th February, 1997 and/or 26th February, 1998.”
I accept the submissions made in this regard by Dr Flick QC, who appears on behalf of the first respondent, that there is a problem about standing in this order. I consider, on what I now know, that this ground is not likely to give rise to a serious question to be tried. That follows because it is a prayer that seeks to require the first respondent not to deal with the land other than in accordance with the approvals that I have quoted. First, the contracting parties to the arrangements the subject of those approvals are not parties to these proceedings, that is the Darkinjung Local Aboriginal Land Council and Walker Corporation.
15. Secondly, I was taken this morning to a great deal of correspondence in which the Darkinjung Local Aboriginal Land Council claimed that arrangements, the heads of agreement, are void and correspondence with Walker Corporation which seems to suggest that it is awaiting a valid contract. It speaks about prospective binding documentation and although Walker Corporation somewhat obliquely threatens legal proceedings, it seems to me that Walker Corporation itself was under some doubt as to whether there was an enforceable contract between it and the Darkinjung Local Aboriginal Land Council. That makes, I think, a real issue about standing in relation to order number 2. However, in any event order number 2 is a consequential order upon order number 1. The claim is that if the appointment of Mr Hoddinott is invalid, then as a consequence he ought to be restrained from dealing with the land otherwise than in accordance with those approvals. I think that also casts into doubt whether this prayer raises an arguable case for trial.
16. That conclusion would be sufficient to dispose of any injunction application, but in case I am wrong about that and because it was fully argued, I go then to two other matters. First of all, the balance of convenience. I found at the end of the day that the balance of convenience argument was extraordinary. It seemed to amount to the applicant seeking an interlocutory injunction because if an injunction were not to be granted the New South Wales Aboriginal Land Council might suffer some legal costs. On the other hand, also extraordinarily, the respondents ask that an injunction not be granted so that Mr Hoddinott can be free to negotiate until the end of his term, which is a mere 12 days away. I find that they are both extraordinary arguments. But if I had to choose between them, then I would choose for the freedom of negotiation. The applicant's case is that it might find itself burdened by legal costs. That is pure speculation. There is no evidence as to the magnitude of any such costs, even if there was a real likelihood of litigation. Walker Corporation has made some threats but, although it has had a long time to take steps to protect its rights, it has not. Whether it wishes to do so following today’s case is a matter of complete speculation. Furthermore, I am not at all sure that the sections of the Act to which I was referred by Mr Underwood, on behalf of the applicant, do in fact put the New South Wales Aboriginal Land Council at any real risk. First, s 57(4) provides the administrator is to be paid out of the funds of the New South Wales Aboriginal Land Council. I am not sure whether that extends to legal costs. Section 23(1)(b) provides that the New South Wales Aboriginal Land Council will “… grant funds for the payment of the administrative costs and expenses of … Local Aboriginal Land Councils …”. Again, I am not sure that s 23(1)(b) extends to legal costs that might be incurred by Mr Hoddinott if, and I emphasise if, proceedings were taken by Walker Corporation and he found it necessary to defend them and was burdened by a costs order against him. But in any event it is all made completely speculative by the fact that s 57(4) provides that the New South Wales Aboriginal Land Council may recover the amount paid under that section from the Local Aboriginal Land Council.
17. It is true that the interlocutory order that I granted on 22 October 1998 does fetter Mr Hoddinott. It is true that Mr Hoddinott said in his affidavit that he had advertised on 31 August 1998 for expressions of interest in dealing with the land. It is true that he has expressed in his affidavit that he has had some responses to that advertisement and that there may be people with whom he can negotiate. But he cannot negotiate very far because, as Ms Ingram states in her affidavit, the next meeting of the applicant is scheduled for 6 April 1999. If Mr Hoddinott was to negotiate some contract, then there is no doubt that, without the appropriate steps being taken under div 4 pt 6 of the Act, and especially the establishment of the pre-conditions in s 40D, such a contract would be void. I do not think that in 12 days Mr Hoddinott can do a great deal of harm. Perhaps he can leave this Court and enter into negotiations and thereby throw Walker Corporation into the arms of the Supreme Court but that I do not know and for the reasons that I have said I do not think that that swings the balance of convenience.
18. Lastly, I am also persuaded by Dr Flick’s submissions about the form of the order sought. It is an order restraining Mr Hoddinott from dealing with the land other than in accordance with the two resolutions. Mr Hoddinott, if such an order is made, is bound by it and bound to this Court. If he breaches the order, he will be guilty of contempt of court, a very serious charge indeed. Courts are wary of casting burdens on litigants that are uncertain in their terms. The fact of the matter is that the resolutions of 6 February 1997 and 26 February 1998 are not very precise. The first one is a resolution that depends on a submission made by Mrs Deane as solicitor in relation to the matter. Her submission is set out in exhibit 24 to the affidavit of Mr Hoddinott and it says amongst other things, that she is forwarding draft collateral documents being a deed of agreement, contract for sale and a ground lease. Now they may all well be in existence. There is a deed of agreement which is exhibit 25 to the affidavit of Mr Hoddinott and it contains also a contract of sale and it appears to contain a lease. There are some hundreds of pages. It is not simply, as Mr Underwood submitted, a case of looking at the first page and seeing that the party is Walker Corporation and that the document relates to a certain rent and a certain purchase price. It is a matter of Mr Hoddinott not acting in accordance with any part of these documents. Furthermore, Mrs Dean’s submission contains a whole lot of extra documents about which I at present have no idea. Paragraphs (B) to (G) inclusive of her submission talk about advertised notice of meetings, handwritten motions, minutes of meetings, the land claim, a letter and annexure dated 12 October 1993 and a sealed draft order dated 1 December 1993. It is so imprecise as to be unfair for this Court to impose on a litigant an obligation to comply with all those documents.
19. A different situation pertained on 22 October 1998 when all that Mr Hoddinott was being required to do was to comply with heads of agreement. This is a different situation. I find that a very persuasive matter in exercising a discretion not to grant an interlocutory order.
20. Dr Flick also raised a question of whether the order sought goes far wider than the applicant's interest. The applicant’s obligation in relation to the dealing with land of the Darkinjung Aboriginal Land Council is in s 40D(1)(b) of the Act. Mr Singleton, who appeared for the second respondent, called that section a power of veto. But the effect of an interlocutory order such as is sought would be more than a power of veto. It would actually require Mr Hoddinott to implement the arrangements which are set out in the documents the subject of those two resolutions. That is wider than the applicant's interest in them under this legislation.
Orders
21. For these reasons I have decided not to grant a further interlocutory injunction and my formal orders are as follows:
(1) I discharge the injunction which I granted on 22 October 1998.
(2) I refuse to grant a further interlocutory injunction as sought by the applicant in the proceedings.
(3) I reserve the question of costs.
(4) The exhibits may be returned.
AssociateI HEREBY CERTIFY THAT THIS AND THE PRECEDING 11 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
0