Onus v Registrar of Aboriginal and Torres Strait Islander Corporations (No 2)
[2017] FCA 1551
•19 December 2017
FEDERAL COURT OF AUSTRALIA
Onus v Registrar of Aboriginal and Torres Strait Islander Corporations (No 2) [2017] FCA 1551
File number: VID 1133 of 2017 Judge: O'CALLAGHAN J Date of judgment: 19 December 2017 Catchwords: PRACTICE AND PROCEDURE – where notice issued for the purposes of s 487-10(1) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) held not to be valid and effective – consideration of consequential orders appropriate to be made in the circumstances Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(a)
Corporations (Aboriginal and Torres Strait Islander) Act2006 (Cth), s 487-10(1)
Cases cited: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Johns v Australian Securities Commission (1993) 178 CLR 408
Onus v Registrarof Aboriginal and Torres Strait Islander Corporations [2017] FCA 1498
Date of hearing: Heard on the papers Date of last submissions: 18 December 2017 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 11 Counsel for the Applicants: Mr D M Ryan QC and Mr T Greenway Solicitor for the Applicants: Shayne Daley & Associates Counsel for the First Respondent: Ms K Foley Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Ms K Brazenor Solicitor for the Second Respondent: McCullough Robertson
ORDERS
VID 1133 of 2017 BETWEEN: SANDRA ONUS
First Applicant
CHRISTINE COOKTOWN
Second Applicant
AND: REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS
First Respondent
PAUL CASE
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
19 DECEMBER 2017
THE COURT ORDERS THAT:
1.The decision to place Gunditj Mirring Traditional Owners Aboriginal Corporation RNTBC under special administration, and to appoint the second respondent as special administrator, be set aside to take effect at 11.59 pm AEST on 15 January 2018.
2.The parties bear their own costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
On 12 December 2017, I delivered judgment on two separate questions posed in this proceeding: Onus v Registrarof Aboriginal and Torres Strait Islander Corporations [2017] FCA 1498. The effect of answering the first question “no” is that the show cause notice issued by the delegate of the first respondent (the registrar) on 7 August 2017 was not valid and effective for the purposes of s 487-10(1) of the Corporations (Aboriginal and Torres Strait Islander) Act2006 (Cth) (the CATSI Act).
The parties were asked to file written submissions on the form of any consequential orders to be made, including on the question of costs. The applicants seek the following orders:
(1)An order setting aside the decision to place the Gunditj Mirring Traditional Owners Aboriginal Corporation RNTBC (the corporation) under special administration, and to appoint the second respondent as special administrator, to take effect at 11.59 pm AEST on 15 January 2018.
(2)An order restraining the special administrator from doing the following things during the special administration period:
(a)changing the corporation’s Rule Book “in any respect” without the written consent of the applicants’ solicitors;
(b)appointing any person to be a director of the corporation after the end of the period of special administration, except with the written consent of the applicants’ solicitors; and
(c)making any decision during the special administration on whether Mr Damein Bell will recommence as Chief Executive Officer of the corporation.
(3)That the registrar pay the applicants’ costs of the proceeding.
The registrar does not oppose the making of proposed order 1; opposes the making of the whole of proposed order 2; and says that the parties should bear their own costs of the proceeding.
At the time of appointment, the special administrator’s term was to run until 11.59 pm on 15 January 2018. Despite challenging the appointment, the applicants accepted that the period of special administration should nevertheless run its full course. Proposed order 1 is consistent with the applicants’ previous submission that the special administrator should remain in office until the end of his appointment: Onus v Registrarof Aboriginal and Torres Strait Islander Corporations [2017] FCA 1498 at [9]. As the registrar submitted, because the appointment is voidable, not void, the making of such an order (under s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) (the ADJR Act) will enable the special administrator to hand over the operation of the corporation to its members in accordance with his functions and duties under the CATSI Act.
The registrar opposes the making of proposed order 2, on jurisdictional and discretionary grounds. Counsel for the registrar’s submissions were detailed and very helpful. And I intend no disservice to them by saying that counsel’s best points are that there is nothing remotely “consequential” about the relief that the applicants now seek, and that there is no evidence before me upon which I could identify any legal or factual basis for making the orders: see Johns v Australian Securities Commission (1993) 178 CLR 408 at 433 per Brennan J. (Relief that may be ordered under s 16(1)(d) of the ADJR Act “is not so much at large that the Court may make an order against a party to the litigation even though no ground for relief under the general law is established against that party”.) As counsel for the registrar submitted, proposed order 2 in each respect “goes beyond the application for judicial review and seeks relief unconnected to the question of the validity of the special administrator’s appointment”. I agree. I accordingly decline to make proposed order 2, or any part of it.
COSTS
The registrar submits that the parties should bear their own costs in circumstances where order 1 “in effect sees the special administration continuing through to its full term in accordance with the original decision to put the [c]orporation under special administration; and the other relief sought should be refused …”.
The question of what order as to costs should be made is, of course, a matter in the Court’s discretion. “Fairness should dictate how that discretion is to be exercised”: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] per Finkelstein and Gordon JJ.
As I remarked in Onus v Registrarof Aboriginal and Torres Strait Islander Corporations [2017] FCA 1498 at [9]:
… [g]iven that the special administrator’s term expires on 15 January 2018, and that the applicants agree that, in the event that the Court finds that the decision to appoint the special administrator was invalid, he should nonetheless remain in office until then in any event, it may be that there is no utility in answering either of the two questions.
If the utility envisaged by the applicants in pressing for relief is the relief contemplated by proposed order 2, as it now seems, and there is no basis for granting that relief, then even though the applicants succeeded in relation to the first separate question, the appropriate order as to costs in all those circumstances is that the parties bear their own costs of the proceeding.
The applicants also relied on an “open offer”, but, as the registrar also submitted, he “gave detailed reasons for rejecting the offer … [and it was] premised on the [special administrator] undertaking to do certain things and not do other things. It was inappropriate for such undertakings to be given … Furthermore, the applicants sought to achieve by undertakings outcomes that the … applicants could not obtain by orders [other than consent orders] in the proceeding”. I agree.
The second respondent made no submissions about costs. I propose to make an order that he too bear his own costs of the proceeding.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan. Associate:
Dated: 19 December 2017
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