Registrar of Aboriginal and Torres Strait Islander Corporations v Williams

[2015] FCA 638

FEDERAL COURT OF AUSTRALIA

Registrar of Aboriginal and Torres Strait Islander Corporations v Williams [2015] FCA 638

Citation:	Registrar of Aboriginal and Torres Strait Islander Corporations v Williams [2015] FCA 638
Parties:	REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS v DOUG WILLIAMS
File number:	QUD 403 of 2015
Judge:	EDELMAN J
Date of judgment:	25 June 2015
Catchwords:	PRACTICE AND PROCEDURE – injunction sought under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – failure and refusal to attend before the Registrar or authorised officer and answer questions about a corporation and its examinable affairs
Legislation:	Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 265-25, 453-5(1)(c), s 453-5(2), 453-5(3), 453-5(5), 576-25(2), 700-1
Date of hearing:	25 June 2015
Place:	Perth (via Video Link to Brisbane)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	Mr D de Jersey
Solicitor for the Applicant:	Minter Ellison
Counsel for the Respondent:	The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 403 of 2015

BETWEEN:	REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS Applicant
AND:	DOUG WILLIAMS Respondent

JUDGE:	EDELMAN J
DATE OF ORDER:	25 JUNE 2015
WHERE MADE:	PERTH (VIA VIDEO LINK TO BRISBANE)

THE COURT ORDERS THAT:

1.The respondent is to attend before an authorised officer of the Registrar of Aboriginal and Torres Strait Islander Corporations (Registrar) to answer questions about Githabul Nation Aboriginal Corporation RNTBC ICN 4709 (Corporation) or the Corporation’s examinable affairs:

·at Lismore City Council, 43 Oliver Avenue, Goonellabah, NSW, 2480,

·on 13 July 2015 at 10.30am, or at a date and time within 14 days of this order as agreed in writing between the applicant and the respondent.

2.The respondent pay the applicant’s costs of and incidental to this application.

3.The respondent has liberty to apply within 14 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 403 of 2015

BETWEEN:	REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS Applicant
AND:	DOUG WILLIAMS Respondent

JUDGE:	EDELMAN J
DATE:	25 JUNE 2015
PLACE:	PERTH (VIA VIDEO LINK TO BRISBANE)

REASONS FOR JUDGMENT

1. This is an application by the Registrar of Aboriginal and Torres Strait Islander Corporations for an injunction, relying on s 576-25(2) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act). The injunction is sought to compel the respondent, Mr Williams, to attend before an authorised officer of the Registrar to answer questions concerning the Githabul Nation Aboriginal and Torres Strait Islander Corporation RNTBC ICN 4709 (GNA Corporation). The GNA Corporation is registered under the CATSI Act.

2. Ms Mu is a Senior Investigator in the Investigations and Prosecutions Section of the Registrar’s Office. Her affidavit explains that she has been involved in an investigation into the GNA Corporation. That investigation has been running since 21 October 2014. The investigation concerns alleged breaches of s 265-25 of the CATSI Act by a former director of the GNA Corporation who allegedly sold property of the GNA Corporation and converted the proceeds to his own personal use.

3. During the investigation Ms Mu identified a number of people whom she believes to have knowledge about the examinable affairs of the GNA Corporation. One of those people is Mr Williams. He was a director of the GNA Corporation at the relevant times and remains a current member of the GNA Corporation. His conduct is not under investigation. But he is a proposed witness in the investigation.

4. Section 453-5(1)(c) provides as follows:

   (1)The Registrar may, by notice given to a person whom the Registrar, on reasonable grounds, believes to have some knowledge of the examinable affairs of an Aboriginal and Torres Strait Islander corporation, require the person:

   (a)to provide the Registrar or an authorised officer with information concerning the corporation or its examinable affairs; or

   (b)to produce to the Registrar or an authorised officer books of the corporation, or a related body corporate or connected entity, in the custody or under the control of the person; or

   (c)to appear before the Registrar or an authorised officer to answer questions about the corporation or its examinable affairs.

5. The definition of “examinable affairs” in s 700-1 includes any “affairs” of the corporation. And “affairs” is defined very broadly including the body corporate’s “business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee)”. The investigation into the GNA Corporation concerns its examinable affairs.

6. A notice under s 453-5(1)(c) must be in writing, it may be given personally or by post, and must specify when and where the person is to attend before the Registrar or authorised officer: s 453-5(2). And the appearance to answer questions must be within a period of not fewer than 14 days after the notice is given: s 453-5(3).

7. On a number of occasions Mr Williams was served with notices to appear under s 453-5(1)(c). The occasions of those notices were as follows:

   (1)A notice sent on 24 October 2014 by registered post. That notice had been sent to the address for Mr Williams in Kyogle, New South Wales, which was contained in the GNA Corporation’s 2011-2012 Annual Report. It was also his address in the GNA Corporation members’ list published in November 2014 and January 2015. That notice was returned and marked “returned to sender refused”. It had required Mr Williams’ attendance on 11 November 2015 at 1:00pm at the Lismore City Council Community Centre in NSW.

   (2)A notice dated 18 November 2014 which was personally served on Mr Williams on 29 November 2014, requiring him to attend on 4 December 2014 at 10:00am at the Lismore City Council Community Centre in NSW.

   (3)A notice dated 5 December 2014 which was personally served on Mr Williams’ nephew at the Kyogle address on 5 December 2014 and personally served on Mr Williams on 12 December 2014 also at the Kyogle address. That third notice required Mr Williams to attend on 23 December 2014 at 10:00am at the Lismore City Council Community Centre in NSW. In the letter accompanying the third notice, Mr Williams was advised that a failure to attend at the time and place specified will result in the immediate commencement of legal proceedings.

   (4)A notice dated 19 December 2014, which was personally served on Mr Williams on 13 January 2015, to attend on Thursday, 30 January 2015 at 10:00am at the Lismore City Council Community Centre in NSW. There was an error in this notice because 30 January 2015 is a Friday. Ms Mu telephoned Mr Williams to explain this error and sent a letter to him at the Kyogle address correcting the error. Mr Williams failed to attend on either 29 January 2015 or 30 January 2015.

   (5)A notice dated 30 January 2015 which was personally served on Mr Williams on 9 February 2015 at the Kyogle address. The notice required Mr Williams to attend on 27 February 2015 at 10:00am at the Lismore City Council Community Centre in NSW. The person serving the notice on Mr Williams was verbally abused and threatened with physical harm if he ever returned to the Kyogle address. On the morning of 27 February 2015, Mr Williams was telephoned by Ms Mu at around 8:25am. She explained to Mr Williams that he was required to attend the interview at the Lismore City Council Community Centre. Ms Mu said that Mr Williams may have said that he was in Perth. Mr Williams said that he was only just getting up and would not be able to get to the interview in time. Ms Mu offered him transport. Mr Williams said that he would not be coming.

8. Mr Williams has failed to appear at any of the times provided in the notices. Mr Williams never indicated that he was incapable of attending an interview, other than, possibly, in relation to the interview on 27 February 2015, although he declined an offer of transportation to the interview on that occasion. Mr Williams also failed to attend at Court this morning despite service of the process upon him.

9. A failure to comply with a notice under s 453-5(1)(c) is an offence: s 453-5(5). The penalty could be up to 30 penalty units ($5,100) or up to 6 months’ imprisonment. However, the Registrar does not currently seek any punitive orders for breaches of s 453-5(1)(c). The Registrar seeks only an injunction under s 576-25(2).

10. Section 576-25(2) provides as follows:

    (2)If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of:

    (a)       the Registrar; or

    (b)any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

    grant an injunction, on such terms as the Court thinks appropriate, requiring the first-mentioned person to do that act or thing.

11. Mr Williams has failed to “do an act or thing that the person is required by [the CATSI Act] to do”. He was required, at least under the fifth notice, to attend the Lismore City Council Community Centre in NSW on 27 February 2015. He failed to do so. He also refused to do so. He has failed and refused to attend to answer questions about the GNA Corporation or its examinable affairs.

12. In the context of the history I have discussed, it is appropriate that the injunction issue in the terms sought by the Registrar as follows:

    The respondent is to attend before an authorised officer of the Registrar of Aboriginal and Torres Strait Islander Corporations (Registrar) to answer questions about Githabul Nation Aboriginal Corporation RNTBC ICN 4709 (Corporation) or the Corporation’s examinable affairs:

    Ÿat Lismore City Council, 43 Oliver Avenue, Goonellabah, NSW, 2480,

    Ÿon 13 July 2015 at 10.30am, or at a date and time within 14 days of this order as agreed in writing between the applicant and the respondent.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.

Associate:       

Dated:       25 June 2015