Pross v Hillig as Administrator of the Darkinjung Local Aboriginal Council

[2007] NSWLEC 875

Land and Environment Court

of New South Wales

CITATION:	Pross v Hillig as Administrator of the Darkinjung Local Aboriginal Council [2007] NSWLEC 875
PARTIES:	APPLICANT David Pross RESPONDENT Peter Hillig as Administrator of the Darkinjung Local Aboriginal Council
FILE NUMBER(S):	40725 of 2007
CORAM:	Pain J
KEY ISSUES:	Interlocutory Relief :- whether order should be made to stop meeting called by administrator of land council to consider suspension of member - whether serious question to be tried - application refused
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 s4, s52g, s57, s222(4)(b), s226(1) Aboriginal Land Rights Regulation 2002 Sch 2 model rule 5, cl 98 Land and Environment Court Act 1979 s20(2)
CASES CITED:	Aboriginal Community Benefit Fund Pty Limited v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494; Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148; Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs at (2006) 147 LGERA 348; Lester v New South Wales Aboriginal Land Council (2001) NSWSC 891
DATES OF HEARING:	30 July 2007
EX TEMPORE JUDGMENT DATE:	30 July 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr Perkins (solicitor) SOLICITOR Perkins Solicitors RESPONDENT Mr D Smallbone SOLICITOR Patrick Woods & Company

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 July 2007

40725 of 2007 David Pross v Peter Hillig as Administrator of the Darkinjung Local Aboriginal Land Council

EX TEMPORE JUDGMENT

1 Her Honour: The Applicant, Mr Pross, has filed a Class 4 application which names as the Respondent Peter Hillig in his capacity as Administrator of the Darkinjung Local Aboriginal Land Council (Darkinjung LALC). Before me today is an interlocutory application seeking an order restraining the Respondent from convening a meeting of the Darkinjung LALC for the purpose of considering the suspension of the Applicant from the Darkinjung LALC until the Applicant’s Class 4 application is determined. The matter is urgent because I am informed that this meeting is going to take place tomorrow. An affidavit of Mr Perkins, the Applicant’s solicitor, dated 30 July 2007 is relied on.

2 There are pleadings filed which set out the basis on which the substantive relief is sought in the proceedings. Paragraphs 1 – 3 are as follows:

1. Darkinjung Local Aboriginal Land Council is a local aboriginal land council established under the Aboriginal land Rights Act 1983 (the Act).

2. The Respondent is the administrator of Darkinjung Local Aboriginal Land Council initially appointed by the Minister on 2 May 2006 for a period of 12 months.

Relevant legislation

3 In relation to the interlocutory application, the Applicant relied on various sections of the Aboriginal Land Rights Act 1983 (the ALR Act). Section 4(2) provides:

(2) A reference in this Act to:
(a) a function includes a reference to a power, authority and duty, and
(b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

4 Section 52G provides:

The following functions are to be exercised, in accordance with this Act, by resolution of the voting members of a Local Aboriginal Land Council:
…
(h) suspension of members from attending or voting at meetings of the Council, …

5 Section 57 of the ALR Act is also relied on. It relates to suspension of members from attending council meetings as follows:

(1) A member of a Local Aboriginal Land Council (other than a Board member of that Council) whose conduct the Council decides is detrimental to the best interests of the Council may be suspended by the Council from attending Council meetings for a period of time specified by the Council, but such a period must not be greater than 3 years.

(2) During any period of suspension, the member is not entitled:
(a) to attend meetings of that Council, or
(b) to vote:

(ii) on any matter to be determined by the Council, or
(c) if the member is also a member of another Local Aboriginal Land Council—to make a nomination to change the Council in relation to which the person has voting rights.

(3) A Local Aboriginal Land Council that has suspended a member under this section may at any time revoke the suspension.

(4) The chief executive officer of a Local Aboriginal Land Council that has suspended a member under this section must notify the Registrar of the suspension, and the details of the suspension, and of any revocation of that suspension.

(5) At the end of the period of suspension, the member is entitled to attend Council meetings, vote and make a nomination in relation to voting rights unless the Council, by a further vote, held in accordance with this section, sets another period of suspension.

6 Section 222(4)(a) and (b) of the ALR Act provide:

(4) The administrator has, during the period of his or her appointment, to the exclusion of the Council:

(a) all, or such part as is specified in the administrator’s instrument of appointment, of the functions of the Board of the Council conferred or imposed by or under this Act, and

(b) the functions of the Council and the members of the Council exercised by resolution of the members of the Council that are prescribed by the regulations (except as provided by the administrator’s instrument of appointment).

7 Section 226(1) relates to removal of office holders on appointment of administrator and states:

(1) On the appointment of an administrator to administer all of the functions of a Local Aboriginal Land Council, the Board members of the Council are removed from office and fresh elections to fill the vacancies are to be held, in the manner specified by the regulations, so as to enable vacancies to be filled at the conclusion of the administrator’s term of office.

8 The Aboriginal Land Rights Regulation 2002 (the Regulation) Sch 2 model rule 5 which relates to the procedures for the suspension of members is also relevant and states:

5 Procedure for suspension of members

The procedure for deciding on the suspension of a member in accordance with section 57 of the Act is to be as follows:

(a) notice of the proposed suspension must be included in the notice given for the next meeting of the Council,

(b) the member whose suspension is under consideration must be allowed to address the meeting or to submit a written explanation which must be read to the meeting,

(c) voting on the question and the period of suspension is to be by secret ballot,

(d) if at least a majority of the members attending the meeting vote in favour of suspension of the member for a certain period of time, that is the decision of the Council.

9 Clause 98 of the Regulation provides:

For the purposes of section 222(4) of the Act, an administrator of an Aboriginal Land Council may exercise all of the functions of the Council and the members of the Council exercised by resolution of the Council.
Note. Under section 222 (4) (b) of the Act, the administrator’s instrument of appointment may limit the functions that may be exercised.

Applicant’s submissions

10 The Applicant’s solicitor argues that the Applicant has the right to have his decision on suspension considered by and voted on by all the members of the Darkinjung LALC because of s 57 of the ALR Act and the requirements of Sch 2 model rule 5 of the Regulation. To that end he says that the administrator is acting beyond power in holding an extraordinary meeting tomorrow as part of the process set out in the affidavit of Mr Perkins sworn 30 July 2007. There are a number of documents attached to that affidavit which relate to that process. Annexure A is a circular to members of the Darkinjung LALC dated 13 July 2007 which identifies the issues to be raised at the meeting called tomorrow by the administrator Mr Hillig. The purpose of the extraordinary meeting is for members to provide their views for Mr Hillig’s consideration in determining the possible suspension of the designated members including the Applicant.

11 Also annexed to the affidavit is a letter to the administrator Mr Hillig from Mr Perkins dated 1 July 2007 which identifies that Mr Hillig has received advice from the Registrar administering the ALR Act in relation to the interpretation of sections of that Act. Based on that advice Mr Hillig is adopting the process that he is pursuing in relation to the meeting to be held tomorrow.

12 Mr Perkins argues that the provisions of the ALR Act are inconsistent. He submits that s 52G(h) means that the Applicant has a right to have his suspension dealt with by resolution of the voting members of the Darkinjung LALC. This is despite s 222(4)(b) stating that the administrator exercises the functions of the council, to the exclusion of the council.

13 That is the substantive issue as I understand it in this interlocutory injunction application. In response I have submissions from Mr Smallbone for the Respondent, which I largely adopt. In submissions Mr Smallbone referred to the parts of the ALR Act the Applicant referred to and also to s 4(2), s 57 and s 226(1) of the ALR Act.

Finding

14 In determining whether interlocutory relief ought be granted, the Court must determine (i) if there is a serious question to be tried (ii) whether the injunction should be granted on the balance of convenience and (iii) whether an undertaking as to damages is proffered, Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 at 153 per Mason ACJ. The first issue to consider is whether there is a serious question to be tried.

15 Section 222(4)(b) of the ALR Act concerns the power of administrators appointed to local aboriginal land councils. Appointment of administrators is provided for by s 222(1) of the ALR Act. Subsection (4) states that the administrator has, during the period of his or her appointment, to the exclusion of the council, certain functions as identified in the instrument of appointment; s 222(4). The administrator’s instrument of appointment is not before me. The parties advise me it is in general terms. In s 222(4)(b) the administrator exercises the functions of the council and the members of the council, exercised by resolution of the members of the council, that are prescribed by the regulations unless proscribed by the instrument of appointment. No such limitation in the instrument of appointment has been identified in this matter.

16 It appears from the sections referred to by the parties, and I agree with Mr Smallbone’s submission to this effect, that the decision whether to suspend members is one for the administrator, not the members of the land council, given the general terms of his instrument of appointment and therefore his broad powers under s 222(4) of the ALR Act. There does not seem to be inconsistency in the Act from my reading of it, contrary to the Applicant’s submission. It follows that the procedure being adopted by the administrator, Mr Hillig, at this stage is in conformity with the ALR Act and the Regulation.

17 I note particularly Mr Smallbone’s submission that subject to the applicable rules the procedure at a meeting of a land council is for the administrator to decide. That is in conformity with the wording of s 4(2), s 57, s 222(4)(b) of the Act and Sch 2 of the Regulation. It is also in conformity with cl 98 of the Regulation.

18 I note for the record that Mr Smallbone has raised issues in relation to bias, which is one of the matters raised in the Class 4 application, but I do not need to consider that issue in light of the other matters before me.

19 Another issue raised by Mr Smallbone in relation to whether there is a serious question to be tried is based on the decision in Lester v New South Wales Aboriginal Land Council (2001) NSWSC 891. The issue is whether this Court has jurisdiction at all given the specific jurisdiction identified in s 20(2) of the Land and Environment Court Act 1979 (the Court Act). There is particular reliance by the Applicant on s 20(2)(a) which provides that:

The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:

(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

Under subsection (3), for the purpose of subsection (2), the ALR Act is identified as a relevant planning or environmental law.

20 Lester concerned an application to the Supreme Court for declarations and orders that the plaintiff’s removal from the office of treasurer with the defendant land council was invalid and void in that it was beyond the defendant’s power conferred by the ALR Act and that the plaintiff was denied procedural fairness.

21 The defendant filed a motion seeking to have the proceedings struck out or transferred to the Land and Environment Court because of the effect of s 16, s 20 and s 71 of the Court Act. In relation to the defendant’s motion that the Supreme Court lacked jurisdiction to determine the matter, Dunford J referred at [7] to Aboriginal Community Benefit Fund Pty Limited v Batemans Bay Local Aboriginal Land Council (1997) 41 NSWLR 494 where it was held that proceedings were able to be brought in the Supreme Court in a matter where a land council was acting beyond its statutory powers, and did not exclusively fall within s 20(2) of the Court Act. His Honour noted at [8] that:

The Batemans Bay case makes it clear that the mere fact that it is necessary to construe the ALR Act to determine whether the Council is or is not acting beyond power, does not necessarily bring the proceedings within the prescription of s 20(2).

22 Dunford J held that proceedings based on the claim the council was acting beyond its statutory powers did not fall within the category of proceedings described in s 20(2) of the Court Act and therefore such proceedings could be brought in the Supreme Court.

23 Based on Lester it would appear that the issue before me is not one that falls under s 20(2) of the Court Act and is therefore not a matter in relation to which this Court has jurisdiction. There is a real issue as to whether this matter is appropriately brought in this Court or rather should be pursued in the Supreme Court.

24 Another basis to conclude that there is not a serious question to be tried is that the meeting called by Mr Hillig cannot affect any right or legitimate expectation of the Applicant as no decision is being made at it. It is called so that Mr Hillig can be informed of any relevant matters concerning possible suspension of several members. In that regard I adopt the submissions put to me by analogy with the finding in Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs at (2006) 147 LGERA 348 per Preston J at [41] – [48].

25 Given my finding in relation to those three issues I consider there is not a serious question to be tried on this application for interlocutory orders. This finding probably means that I do not need to consider balance of convenience but I note that this application has been made late. The notices alerting members of the land council to the meeting were sent out on 13 July 2007. I have already said that I have serious doubts as to whether there is a serious question to be tried. To the extent the balance of convenience arises it is not in the Applicant’s favour.

26 I have also raised with the Applicant’s solicitor whether an undertaking as to damages is offered and note that one is not proffered. For all these reasons I decline to issue the interlocutory injunction sought before me this afternoon.