Ralkon Agriculture Co. Pty Ltd v Aboriginal Development Commission

[1986] FCA 541

C A T C H W O R D S

PRACTICE AND PROCEDURE - interlocutory injunction - application

for review under Administrative Decision (Judicial Review) Act

1977 - s.13 reasons not yet supplied - whether injunction should

be granted until expiry of limited time after receipt of reasons.

Administrative Decision (Judicial Review) Act 1977 s.13

Aboriqinal Development Commission Act 1980 ss.8, 12, 27, 28, & 29

Federal Court Rules Order 54 r 4.

RALKON AGRICULTURAC COMPANY F". LIMITED

Applicant

- and -

ABORIGINAL DEVELOPMENT COMMISSION

Respondent

FISHER J.

ADELAIDE

19 NOVEMBER 1986.

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY	)	No. G75 of 1986
)

DIVISION	GENERAL	1
B E T W E E N :
RALKON AGRICULTURAL COMPANY
PTY. LIMITED

Applicant

- and -

ABORIGINAL DEVELOPMENT

COMMISSION

Respondent

MINUTE OF ORDER

JUDGE MAKING	ORDER	FISHER J.
WHE!RE MADE	ADELAIDE
DATE OF ORDER	12 NOVEMBER 1986

THE COURT ORDERS THAT, upon the applicant giving the usual

undertaking as to damages -

1. The respondent be restrained from accepting any tender

for the purchase of Bartlett's Farm or from entering

into an enforceable obligation with any prospective

purchaser for a period which expires 14 days after

service upon the applicant's solicitors of its reasons order.

for decision pursuant to s.13 of the Administrative

2. There be liberty to either party to apply on 48 hours

notice to	the other party to vary	or discharge this
order.

3. The respondent be granted leave to appeal from this

order and that the time for service of any notice of

appeal run from this day.

4. Costs of this notice of motion be reserved.

THE COURT FURTHER DIRECTS THAT:

The applicant supply further and better particulars of

the grounds of its application for a review within 10

days of the receipt by it of reasons pursuant to s.13.

Note: Settlement and entry of orders is dealt with in Order 36 of

the Federal Court Rules.

IN "HE FEDERAL COURT OF AUSTRALIA	)
)

SOUTH AUSTRALIA DISTRICT REGISTRY

) No.G75 of 1986

)

GENERAL DIVISION

)

B E T W E E N :

RALKON AGRICULTURAL COMPANY

PTY. LIMITED

Applicant

- and -

ABORIGINAL DEVELOPMENT

COMMISSION

Respondent

REASONS FOR JUDGMENT

W: Fisher J.

19 November 1986

This application for an interlocutory injunction is a

further chapter in the never ending and bitter litlgation between

the parties. I need only refer to the decision	of Keely	J.
reported (1982) 43 A.L.R.535, my decision reported (1984) 1

F.C.R. 211 and the declsion of the Full Court of this Court

reported (1984) 57 A.L.R. 143. There has also been much

peripheral litlgatlon in thls Court and also in the Supreme

Court. On 12 November 1986 I made certaln orders and undertook

subsequently to glve my reasons.

On this occasion Ralkon Agricultural Company Pty.

Limited ("Ralkon") made application pursuant to 3.5 of the

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Administrative Decisions (Judicial Review) Act 1977 ("the

A.D.J.R. Act") for an order of review of a decision of the

Aborlglnal Development Commission ("the A.D.C."). The decision

to be reviewed was pleaded as being the declsion of the A.D.C. to

sell certain farming land in this State known as Bartlett's Farm. the proposed sale.

At the same time as Ralkon filed on 3 November 1986 its

application for a review supported by an affidavit, it filed a

notice of motion seeking an interlocutory order restraining the

A.D.C. from any further action in relation to its offer to sell

Bartlett's Farm. On 6 November 1986 the A.D.C. filed a notlce

of ob~ection to competency pursuant to 0 54 r 4 of the Rules of

this Court. Ob~ection was taken on the ground that the A.D.C.

had not made the decision alleged in the application for a order

of review or alternatively that this decision was not made under

an enactment. Two affidavits were filed by the A.D.C. in support

of the objection to competency and in opposition to the

appllcation for an lnterlocutory injunction. In one of the

affidavits the deponent referred to the fact that two leases each

for 99 years granted by the A.D.C. to Point McLeay Community

Council Incorporated of Bartlett's Farm had been recently

surrendered. On 6 November both applicatlon e for

interlocutory relief and the objection to competency were

adjourned to 11 November 1986 on the A.D.C. undertaking to take

no further steps prior to the latter date in respect of the

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proposed sale.

The relevant facts, the background to which were set out

in great detail	in my declsion prevlously referred to, can be
briefly stated.	Ralkon is and has been slnce 1975 In occupation

of Bartlett's Farm. It carries on business there and on other

land as a grazier with approximately 2,000 head of cattle. I was informed that Ralkon IS now an Aboriglnal body as defined In the Aborisinal Development Commlssion Act 1980. Pursuant to the

provisions of that Act the A.D.C. acquired and presently holds

title to Bartlett's Farm. The nature of the interest of Ralkon

in Bartlett's Farm has been earlier and somewhat loosely

described by me and by the Full Court as a licence to occupy Bartlett's Farm subject to reasonable notice. The requlsite term of such notice has not been identified.

In April 1985 the A.D.C. served notice to quit upon

Ralkon requiring it to give up possession of Bartlett's Farm to

the then lessee the abovementioned Communlty Council. When

Ralkon did not give up possession the A.D.C. sought from the

Supreme Court orders for possession. These proceedings were

dismissed on 4 December 1985 on the ground that the A.D.C. did

not have standing to make applicatlon for possession. On or

about 9 October 1986 Ralkon became aware that the A.D.C. was

offerina Bartlett's Farm for sale by tender. On 27 October

Ralkon sought from the A.D.C. reasons for its decision to sell pursuant to 9.13 of the A.D.J.R. Act. In its affidavit in

.

4 .

SupPOKt of the application for interlocutory relief the chairman

of directors of Ralkon deposed to the fact that Ralkon and the

Aboriginal people at Point McLeay would suffer irreparable harm

if Bartlett’s Farm were sold by the A.D.C. Counsel for the

A.D.C. did not seek to cross-examine on this affidavit or contest this contention.

Prior to or at the commencement of the hearing of the

application for interlocutory relief I was informed by the A.D.C.

upon the Surrender of the leases by the Community Council.	that it did not propose in its opposition to such relief to rely its objection to competency but to reserve its position thereon
until a subsequent date. I am of opinion that I should proceed
to determine the application for interlocutory relief on the
assumption, at this stage, that the A.D.C. does not wish to
challenge Ralkon’s contention that it is a person aggrieved by a decision of A.D.C., which decision I can assume for present
purposes is a decision of an administrative character under an
enactment. In these circumstances it seemed appropriate that I should preserve the status quo at least until such time as the A.D.C. had given its reasons for its decision and Ralkon has in
relation thereto defined with greater particularity its grounds for a review.

However counsel for the A.D.C. very strenuously opposed

such an Order. He contended that in the light of all the earlier

5.

litigation in relation to Bartlett's Farm it was obvious that

Ralkon's applicatlon was entirely without merit and that it was

once again made in an attempt by Ralkon to delay and manipulate.

He submitted that Ralkon had no prospects of ultlmate success and

no right in law or on the merits to remain in possession. In

consequence of my previous involvement in litigation between the

parties I have much sympathy with his contentlons. It is a great

pity that the legislature has not produced a process whereby at

the outset the merits and probable ultimate conclusion can be

investigated.

However in accordance with the accepted interpretation

of the expression "person aggrieved" I must accept at this stage,

at least in the absence of an objection to competency, that the

interest of Ralkon in a decision by the A.D.C. to sell could be

beyond that which	an ordinary member of the public would have in
that decision.	I refer to dicta of Ellicott J.. as he still

was, in Toohevs Limited v Minister for Business and Consumer

Affairs (1981) 36 A.L.R. 64 at p.79.

Furthermore, there are difficult questions which arise

in respect of the power of the A.D.C. to sell without reference

to the interests of the Aboriginal body which is occupying

Bartlett's Farm. Admittedly under s.12 of the Aborisinal

Development Commission Act 1980 it has power to acquire hold and

dispose of real and personal property. However the function of

the Commission is stated by 3.8 as the furtherance of the

.

6.

economic and social development of Aboriginals and to asslst communities and groups of Aboriglnals to acqulre land and engage In buslness enterprlses. Sectlons 27,28 and 29 of that Act have doubtless been enacted in furtherance of this function. If one

is required to declde whether a serious question arises It is at

thls stage, in the absence of reasons and partlculars	of the
grounds for a review, hard to answer In the negative.

On the second ground for consideration in the exercise

of my discretion, namely balance of convenience or inconvenience, there was no evidence of such from the A.D.C. and Ralkon's contentions in its affidavit in support are not challenged.

It is my opinion that I should at least until reasons

have been supplled by the A.D.C. make an order preserving the

status quo and restrainlng any action amounting to a sale to or

an enforceable obligation In favour of a purchaser of Bartlett's

Farm. On this score the propriety of a restraining order mlght

have to be reconsidered after Ralkon has had an opportunity to

apply particulars of the grounds upon which it seeks an order of

review. Such cannot effectively be given until the reasons have

been supplied. I propose, in the absence of any undertaklng from

the A.D.C., to restrain It until 14 days after the supply by It

of reasons pursuant to 5.13 of the Act.

Counsel for the A.D.C. sought leave to appeal my

decision. It is approprlate in my view that I grant such leave

7 .

and this was not opposed by Ralkon. The A.D.C. raised matters of

substance and of general Importance and is entitled If it wishes

to the views of the Full Court thereon. Thls is not a matter of

mere practice and procedure.

Ralkon is prepared to give the usual undertaking as to

damages. The orders that I made were that the A.D.C. be

restrained from accepting any tender for the purchase of

Bartlett’s Farm or from entering into any enforceable arrangement with a prospective purchaser for a period which expires 14 days after service upon the solicitors for Ralkon of Its reasons for

decision pursuant to s.13 of the A.D.J.R. Act or further order.

Each party has liberty to apply on 48 hours notice to vary or

discharge this order. I granted to the A.D.C. leave to appeal to

the Full Court against my order, the time for filing and serving

notice of any such appeal to run from the date of publication of

these reasons. The question of costs was reserved.

I directed Ralkon to supply further and better

particulars of the grounds of its application for review within

10 days of the receipt of the A.D.C’s reasons for decision.

preceding pages are a true copy I certify that this and the G

of the Reasons for Judgment of Mr

Justice Fisher.

Dated: 19 November 1986.