FEDERAL COURT OF AUSTRALIA
Stevens v Camille (No 2) [2016] FCA 748
File number: WAD 1 of 2015 Judge: BARKER J Date of judgment: 24 June 2016 Catchwords: CORPORATIONS – application for leave to bring proceedings on behalf of Aboriginal Corporation under s 169-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – whether requirements in s 169-5 satisfied – whether applicants acting in good faith – whether in best interests of the Aboriginal Corporation – whether serious question to be tried – application dismissed Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 246-5, 246-5(5), 169-1, 169-1(1), 169-5, 576‑1, 694-85
Corporations Act 2001 (Cth) s 1318
Native Title Act 1993 (Cth)
Cases cited: Coeur De Lion Investments Pty Ltd v Kelly [2014] 1 Qd R 296; [2013] QCA 160
Gaertner v Dharah Gibinj Aboriginal Medical Service Aboriginal Corporation [2013] FCA 1330
Re The President’s Club Limited; Coeur De Lion Investments Pty Limited v Kelly & Ors [2012] QSC 364
Stevens v Wintawari Guruma Aboriginal Corporation RNTBC [2016] FCA 149
Suh & Ors v Cho & Ors [2013] VSC 491
Swansson v RA Pratt Properties Pty Ltd and Another (2002) 42 ACSR 313; [2002] NSWSC 583
Vinciguerra v MG Corrosion Consultants Pty Ltd (ACN 084 715 177) (2010) 79 ACSR 293; [2010] FCA 763
Date of hearing: 9 March 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 93 Counsel for the Applicants: Mr MP Costello Solicitor for the Applicants: Shayne Daley & Associates Counsel for the Respondents: Mr S Vandongen SC Solicitor for the Respondents: Corrs Chambers Westgarth Counsel for the Wintawari Guruma Aboriginal Corporation: Mr RI Viner AO QC Solicitor for the Wintawari Guruma Aboriginal Corporation: Castledine Gregory ORDERS
WAD 1 of 2015 BETWEEN: WAYNE STEVENS
First Applicant
TANIA STEVENS
Second Applicant
GUINESS STEVENS
Third Applicant
AND: GLEN CAMILLE
First Respondent
KENZIE SMITH
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
24 JUNE 2016
THE COURT ORDERS THAT:
1.The applicants’ interlocutory application dated 20 April 2015 be dismissed.
2.The respondents and the Wintawari Guruma Aboriginal Corporation RNTBC file any application for costs by 8 July 2016.
3.If no application is filed by the respondents and/or the Wintawari Guruma Aboriginal Corporation RNTBC in accordance with order 2 above, the applicants do pay the respondents’ and Wintawari Guruma Aboriginal Corporation RNTBC’s costs of the applicants’ interlocutory application to be taxed.
4.The matter be listed for directions on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
The question the subject of this judgment is whether the applicants – the Stevens – should be granted leave pursuant to s 169-1 and s 169-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) to continue this proceeding, WAD 1 of 2015, on behalf of the Wintawari Guruma
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- AGLC
- Stevens v Camille (No 2) [2016] FCA 748
- Case
- [2016] FCA 748
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicants satisfied the requirements under section 169-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006, including whether they were acting in good faith and whether the proceedings were in the best interests of the Aboriginal Corporation. The court also had to consider whether there was a serious question to be tried in relation to the allegations made.
The court found that the applicants had not satisfied the requirements under section 169-5 of the Act. The court held that the applicants were not acting in good faith as they had not made adequate efforts to obtain the consent of the Aboriginal Corporation before commencing the proceedings. Additionally, the court found that the proceedings were not in the best interests of the Aboriginal Corporation as the applicants had not demonstrated that the Aboriginal Corporation would benefit from the continuation of the proceedings. The court also held that there was not a serious question to be tried in relation to the allegations made by the applicants.
Accordingly, the court refused the applicants' application for leave to bring or continue the proceedings on behalf of the Aboriginal Corporation against Mr Camille. The court dismissed the interlocutory application and ordered that the applicants pay the costs of the respondents and the Aboriginal Corporation if no application for costs was filed within the specified timeframe. The matter was listed for further directions.
Orders
Orders of the court
1. The applicants’ interlocutory application dated 20 April 2015 be dismissed.
2. The respondents and the Wintawari Guruma Aboriginal Corporation RNTBC file any application for costs by 8 July 2016.
3. If no application is filed by the respondents and/or the Wintawari Guruma Aboriginal Corporation RNTBC in accordance with order 2 above, the applicants do pay the respondents’ and Wintawari Guruma Aboriginal Corporation RNTBC’s costs of the applicants’ interlocutory application to be taxed.
4. The matter be listed for directions on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In the event, it appears two entities were initially established, not one: Eastern Guruma Administration Pty Ltd and Eastern Guruma Administration Services Pty Ltd. Rather than being set up as subsidiaries of the Aboriginal Corporation, Mr Camille and Mr Smith were both directors and shareholders of Administration and Mr Camille was one of three directors and shareholders of Services. At the time of the hearing of this matter, Services had been deregistered. Subsequently, two further entities were formed: Wintawari Guruma Enterprises Pty Ltd and Muntulgura Guruma JV Pty Ltd. As to Enterprises, the Aboriginal Corporation is the sole shareholder and Mr Camille and Mr Smith are directors. In relation to JV, Enterprises is one of two independent shareholders, each of whom hold a 50% interest in the equity and Mr Camille is one of four directors. In short, the Aboriginal Corporation, through Enterprises, holds a 50% interest in JV. The Plan B Trust, referred to above, was established on 26 July 2000. A further trust, simply described as the Eastern Guruma Charitable Trust, was established on 19 June 2012, and is often referred to as the Pascoe Trust. As explained in the recent judgment referred to above, on 6 January 2015, the Stevens commenced this proceeding, WAD 1 of 2015, alleging that Mr Camille and Mr Smith had breached their duties as directors of the Aboriginal Corporation by establishing the aforementioned corporations – Administration, Services, Enterprises and JV. When they commenced these proceedings they sought a number of remedies designed to prevent Mr Camille and Mr Smith from acting as directors of the Aboriginal Corporation and from managing each of these entities, as well as seeking an account of profits. Later, they filed an interlocutory application dated 20 April 2015 in which they sought leave to continue the proceedings in the name of the Aboriginal Corporation. On the hearing of the application for leave, submissions were made having regard to what was set out in an amended statement of claim that the Stevens proposed should be filed if leave were granted. Counsel for the Stevens narrowed down the basis upon which leave was sought, by reference to this proposed amended statement of claim, to what he called the “traditional decision‑making process allegations”. The traditional decision-making process allegations are to be found at [4] to [8] of the proposed amended statement of claim, in the following terms:4. Pursuant to the determinations of this Honourable Court in Hughes on behalf of the Eastern Guruma People v State of Western Australia [2007] FCA 365 [‘Hughes’] and Hughes on behalf of the Eastern Guruma People (No 2) v State of Western Australia [2012] FCA 1267 (20 November 2012) [‘Hughes No 2’1 which are hereafter collectively called the ‘Native Title Determinations’, the Eastern Guruma People are the holders of Native Title in and over the lands described in the Native Title Determinations.5. The laws and customs of the Eastern Guruma People require certain traditional decision making processes [‘the Traditional Decision Making Processes’] to be followed in making decisions which have, or may have, a material effect on the Eastern Guruma People or a substantial number of the Eastern Guruma People.6. The Traditional Decision Making Processes are required to be followed in making decisions about, amongst other things, the exercise of rights in, over and in respect of land the subject of the Native Title Determinations.7. The Eastern Guruma People comprise persons who are members of, and identify themselves as members of one or other of the following four families:(i)the Hicks family;(ii)the Stevens family;(iii)the Hughes family; and(iv)the Smith-Connors family. [‘the Four Families’].8. Pursuant to the Traditional Decision Making Processes the Eastern Guruma People have determined that each of the Four Families:(a)is to be equally represented on any corporations, boards, committees and decision making bodies which are established or are to be established to exercise the rights of the Eastern Guruma People including their rights in or over land the subject of the Native Title Determinations or are otherwise recognised by or derived from the Native Title Determinations [‘the Eastern Guruma Corporate Entities’];(b)is to abide by the constitutions, rules, process, and mechanisms of the Eastern Guruma Corporate Entities to the extent that it is lawfully required to do so,(c)is to be involved in the decision making processes and governance of the Eastern Guruma Corporate Entities;(d)is to share equally in the benefits and opportunities created by or which result from the activities and enterprises conducted or carried on by any of the Eastern Guruma Corporate Entities.