Palmer v MacDonnell Shire Council - [2011] NTCA 2

Palmer & Anor v MacDonnell Shire Council [2011] NTCA 2

PARTIES: PALMER, Tony Francis

AND:
ELLIS, Marie Elana
v
MACDONNELL SHIRE COUNCIL

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 9 of 2010 (20913798)
DELIVERED:  20 April 2011
HEARING DATE:  8 February 2011
JUDGMENT OF:  RILEY CJ, BLOKLAND and BARR JJ
APPEALED FROM:  MILDREN J
CATCHWORDS:

EQUITY – Application for leave to appeal – protection of trust property – where respondent established a prima facie proprietary interest in trust fund – discretion to release trust funds for payment of applicants’ legal fees – held that principles relating to Mareva injunctions not determinative.

EQUITY – Application for leave to appeal – protection of trust property – discretion to release money in trust funds for payment of legal fees for constitutional case – no public policy limiting court’s discretion.

PROCEDURE – Application for leave to appeal – interlocutory decision of a single judge – principles to be applied – necessary to show that decision is either wrong or attended with sufficient doubt to warrant granting of leave – application dismissed.

CAL No 14 Pty Ltd v Motor Accidents Insuance Board (2009) 239 CLR 390; Iskandar v Merpati Nusantera Airline (No 2) (2006) NTCA 3; (206) NTLR 22 - followed

His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand and Anor v The Macedonian Orthodox Community Church St Petka Incorporated and Anor [2006] NSWCA 277 – applied

Australian Broadcasting Corporation v O’Neill (2006) 277 CLR 57; Cardile and Ors v LED Builders [1999] HCA 18; (1999) 198 CLR 380; Carl-Zeiss-Stiftung v Herbert Smith & Co (No 2) [1968] 2 All ER 1233; Carl-Zeiss-Stuftung v Herbert Smith & Co and Anor (No 2) CA [1969] 2 Ch 276; Cogent Nominees v Anthony [2003] NSWSC 804; Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89; United Mizrahi Bank Ltd v Doherty (1998) 1 WLR 435 - considered

REPRESENTATION:
Counsel:
First and Second Applicants:       D Bennett QC, P Mclntyre & A Tokley
Respondent:  A Wyvill SC, T Anderson
Solicitors:
First and Second Applicants:       Midena Lawyers
Respondent:  Povey Stirk
Judgment category classification:    B
Judgment ID Number:  Bar1105
Number of pages:  24

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Palmer & Anor v MacDonnell Shire Council [2011] NTCA 2

No. AP 9 of 2010 (20913798)
BETWEEN:

TONY FRANCIS PALMER

First Applicant

AND:

MARIE ELANA ELLIS
Second Applicant

AND:

MACDONNELL SHIRE COUNCIL

Respondent

CORAM: RILEY CJ, BLOKLAND and BARR JJ
REASONS FOR JUDGMENT
(Delivered 20 April 2011)
RILEY CJ:

I agree with Barr J.
BLOKLAND J
I agree with the reasons given in the judgment of Barr J and agree the application should be dismissed.
BARR J:
Introduction
This is an application for leave to appeal a discretionary judgment of a single judge refusing the applicants access to trust monies for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NTCA 2
Decision Date: 20 April 2011

CaseChat Overview and Summary

The applicants, led by Palmer, sought leave to appeal a decision of Mildren J, which was related to the protection of trust property held by Amoonguna Community Incorporated. The respondent, MacDonnell Shire Council, argued against the release of trust funds to cover the applicants' legal fees. The legal issues involved the discretionary power of the court to release trust funds for legal fees in a constitutional case, and whether there was a public policy limiting this discretion. The court also had to consider the principles governing Mareva injunctions in the context of this application.

The court held that the principles relating to Mareva injunctions were not determinative of the discretionary power to release trust funds. The court found no public policy that would limit its discretion to release money in trust funds for payment of legal fees in a constitutional case. The applicants needed to show that the decision was either wrong or attended with sufficient doubt to warrant granting of leave. However, the applicants had not demonstrated any error on the part of Mildren J, nor had they shown a risk of injustice that would justify recourse to the contested funds. Therefore, the application for leave to appeal was dismissed.

The court emphasised that the assessment of the prospects of success of the proposed constitutional challenge was not straightforward, and it was inappropriate for the court to express any concluded view on those prospects. The court noted that the grounds for the constitutional challenge were not immediately obvious, and the likelihood of success was not clear. The applicants' assertion that Mildren J underestimated their prospects of success was not substantiated, and they had not demonstrated any error on the part of his Honour.

The court dismissed the application and ordered that the application for leave to appeal should be dismissed.

Orders

Orders of the court

The application should be dismissed.

Background

Background to the litigation

The circumstances in which the various issues have arisen are explained in detail in the judgment of Mildren J at first instance, and I need refer to them only to the extent necessary to indicate the conclusions reached by me. Background Amoonguna Community Inc was an association incorporated as such in 1975 under the Associations Incorporation Ordinance 1963 (NT). The objects set out in its constitution permitted it to be, in effect, the local council for the small community of Amoonguna, near Alice Springs in central Australia. The more obvious ‘local council’ objects included maintaining and managing essential services and public utilities at Amoonguna, and maintaining and operating a workshop for the repair and maintenance of what were called “Council vehicles and machinery”. The objects also extended to some functions beyond the usual functions of local government entities, for example: “To facilitate the provision of education, employment, housing, health and other services for members” and “To encourage the maintenance and development of traditional and cultural activities”. Membership of Amoonguna Community Inc was expressed to be open to all Aboriginal persons aged 18 years and over normally resident at Amoonguna Community and traditional owners of land within the Amoonguna Land Trust, irrespective of where such traditional owners might actually reside. The constitution provided that the income and property of the Association, however derived, should be applied solely towards the promotion of the objects and purposes of the Association and that no portion should be paid or transferred, directly or indirectly, to any member of the Association.[1] Consistent with this, the constitution also provided that in the event of winding up, any surplus assets remaining after payment of the Association’s liabilities should be transferred to a body with similar objects or a charitable institution.[2] In 1996, Amoonguna Community Inc was given the functions and powers of a community government council under the provisions of the Local Government Act, and so could apply for and receive funding for the purposes of local government. On 16 October 2007, as part of local government reforms which took place in the Northern Territory in 2007 and 2008, the respondent Shire Council was constituted to be the prospective shire council for an area resulting from the amalgamation of 11 local government areas, which at that time were each separately administered by community government councils. Those councils, of which Amoonguna Community Inc was one, were referred to as “constituent councils”.[3] Also on 16 October 2007, Amoonguna Community Inc underwent a change of legal status as a result of Ministerial action amending its constitution.[4] It ceased to be an incorporated association and became a community government council, named Amoonguna Community Incorporated. The assets and liabilities of the former incorporated association became the assets and liabilities of the new community government council.[5]

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Assessment of the prospects of success of the various grounds of the proposed constitutional challenge was not straightforward, and it would have been inappropriate for Mildren J to reach or express any concluded view on those prospects. Similarly, it would be inappropriate for this Court to do so now, given that this Court is not exercising its own discretion. In my view, however, the grounds on which the constitutional challenge is proposed to be argued are not straightforward, and the likelihood of success not immediately obvious. The applicants’ assertion that Mildren J underestimated their prospects of success is no more than an assertion; the applicants have not demonstrated any error on the part of his Honour.Conclusion The applicants have not established that the decision of Mildren J was wrong or attended with sufficient doubt so as to warrant the granting of leave to appeal. Moreover, the applicants have not established a risk of injustice to them sufficient to justify recourse to the contested funds. The application should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.