Registrar of Aboriginal and Torres Strait Islander Corporations v Gerald Mervyn Hoskins
[2013] FCA 221
FEDERAL COURT OF AUSTRALIA
Registrar of Aboriginal and Torres Strait Islander Corporations v Gerald Mervyn Hoskins [2013] FCA 221
Citation: Registrar of Aboriginal and Torres Strait Islander Corporations v Gerald Mervyn Hoskins [2013] FCA 221 Parties: REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS v GERALD MERVYN HOSKINS File number: NSD 717 of 2012 Judge: JACOBSON J Date of judgment: 8 March 2013 Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Federal Court Rules 2011, rr 17.01, 39.05Cases cited: Bailey v Marinoff (1971) 125 CLR 529
DJL v Central Authority (2000) 201 CLR 226Date of hearing: 8 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 22 Solicitor for the Applicant: Mr Markus of Australian Government Solicitor Counsel for the Respondent: The respondent appeared in person.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 717 of 2012
BETWEEN: REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS
ApplicantAND: GERALD MERVYN HOSKINS
Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
8 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The interlocutory application filed by Gerald Mervyn Hoskins on 1 March 2013 be dismissed.
2.Gerald Mervyn Hoskins pay the costs of the Registrar of Aboriginal and Torres Strait Islander Corporations of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 717 of 2012
BETWEEN: REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS
ApplicantAND: GERALD MERVYN HOSKINS
Respondent
JUDGE:
JACOBSON J
DATE:
8 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 1 March 2013, Mr Gerald Mervyn Hoskins filed an interlocutory application seeking an order which would have the effect of setting aside certain orders made by Emmett J on 27 September 2012.
Those orders were consent orders which included an order that Mr Hoskins pay a pecuniary penalty in the sum of $100,000. Mr Hoskins was also made subject to an order that he be disqualified from managing an Aboriginal and Torres Strait Islander corporation for a period of 15 years.
The orders were stayed up to and including 31 October 2012 but, by order 8, Mr Hoskins had leave to set aside the orders if he made an application supported by an affidavit exhibiting his proposed defence to the claim which was made by the Registrar of Aboriginal and Torres Strait Islander Corporations.
The application, if any, was to be made returnable before Emmett J on 31 October 2012. No such application was made, nor was any affidavit exhibiting any proposed defence filed.
The orders which his Honour made on 27 September 2012 were made, as I have said, by consent but it is important to bear in mind the circumstances in which the orders were made. The context is that Mr Hoskins had failed to meet earlier orders that he file a defence to the claim made by the Registrar which alleged a number of serious contraventions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).
The proceeding brought by the Registrar included a claim that Mr Hoskins had failed to exercise his powers and duties as the chief executive officer of the relevant corporation with the necessary degree of care and diligence and that he had contravened a provision of the Act which required him to exercise his powers for a proper purpose. There was also an allegation that he had caused detriment to the corporation.
The relevant matters relied upon by the Registrar to make good those claims were set out in Orders 2.4 to 2.7 of Justice Emmett’s orders of 27 September 2012.
What then happened when the matter was before Emmett J on that day was that the Registrar did not seek to proceed with the summary judgment application but, in lieu thereof, the consent orders to which I have referred were made, in effect as the price for the withdrawal by the Registrar of the application for summary judgment.
Mr Markus, who appears this morning for the Registrar, submits that in the circumstances of the case, I have no power to make the order sought by Mr Hoskins in his interlocutory application.
Mr Markus also submits that even if I have power, I would not exercise my discretion to make the order, in particular, because of the circumstances to which I have referred. Mr Markus also points to other discretionary matters including, in particular, the fact that the orders made on 27 September 2012 were relied upon by the Registrar as the basis for seeking a sequestration order against Mr Hoskins.
The sequestration order was made in the Federal Magistrates Court on 26 February 2013. Although Mr Hoskins has apparently filed an appeal or an application for leave to appeal from the order, the sequestration order remains on foot.
The application filed by Mr Hoskins cites r 17.01 of the Federal Court Rules 2011 (Cth) as the source of power for his application, however, the correct rule is r 39.05. This is because the orders made by Emmett J were made and entered. Accordingly, the effect of r 39.05 is that the Court may only vary or set aside a judgment after it has been entered if any of the circumstances set out in subparagraphs (a) to (h) are made out.
In my opinion, the effect of the well known decision of the High Court in Bailey v Marinoff (1971) 125 CLR 529 is that the court does not have power to set aside an order unless any of those circumstances is made out. This principle seems to me to have been endorsed by the High Court more recently in DJL v Central Authority (2000) 201 CLR 226 at [38].
In my opinion, the Court does not have any inherent power to set aside the order but is confined to the exercise of the power if any of the circumstances referred to in subparagraphs (a) to (h) is enlivened in the facts of the case.
The basis on which Mr Hoskins seeks to set aside the consent order is set out in paragraph 5 of his affidavit of 8 February 2013 (filed 1 March 2013) which was read in support of the application. The effect of what Mr Hoskins says is that he did not understand that Order 8 of Emmett J’s orders meant that he had to formally file and serve an interlocutory application before 31 October and he believed he could hand the defence and affidavit to his Honour for the application at the hearing on 31 October. Mr Hoskins goes on to say in his affidavit that when he appeared before Emmett J on 31 October 2012, he endeavoured to hand up a document but his Honour refused to accept it.
Notwithstanding what Mr Hoskins says in his affidavit, he appears to have taken no steps until 1 March 2013 to seek to put before the Court any document which would have complied with the Order made by Emmett J had it been filed before 31 October 2012.
Mr Markus submits that I should not accept that Mr Hoskins did not understand the Order. Mr Markus has not sought to cross-examine Mr Hoskins on the Order. He submits that the Order is plain in its terms and even though Mr Hoskins was not legally represented on 27 September 2012, he ought not to have had any difficulty in understanding it.
Mr Hoskins appeared before me today in person. He was the chief executive officer of the relevant corporation and he addressed me in clear and articulate terms this morning. In my opinion, the Order is not expressed in any technical legal language and ought to be plain to any person who held the position in the corporation which Mr Hoskins did. Also, as I have said, he appeared to have no difficulty in addressing me this morning.
It follows, in my opinion, that none of the grounds set out in r 39.05(a) to (h) are made out. Accordingly, in my opinion, I do not have power to vary or set aside the orders made by Emmett J on 27 September.
In any event, even if I had power, I would not exercise my discretion in Mr Hoskins favour. The delay in taking the step which he has sought to do by bringing this application is so great that I could not entertain the exercise of any power even if I had such power. What is particularly important is, first, the circumstances in which the orders were made and, second, the delay.
The orders were made as the price for the withdrawal of a summary judgment application. It would not be appropriate in the circumstances to permit Mr Hoskins to put himself back in the position which he abandoned by consenting to the orders on 27 September 2012.
Moreover, as I have said, the orders were relied upon as the basis for a sequestration order which was made in the Federal Magistrates Court on 26 February 2013. It is particularly significant that Mr Hoskins waited until after the making of that order. Accordingly, I would not exercise any discretion in his favour. I therefore propose to order that the interlocutory application filed by Mr Gerald Mervyn Hoskins on 1 March 2013 be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 8 March 2013
121