The Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation

[1998] FCA 1205

THE REGISTRAR OF ABORIGINAL CORPORATIONS v MURNKURNI WOMEN'S ABORIGINAL CORPORATION
No. WG 3006 of 1998
FED No. 1205/98
Number of pages - 5
Federal Court

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

FARRELL JR

Federal Court - Judicial Registrar- jurisdiction - application for winding up order under the Aboriginal Councils and Associations Act 1976.

Corporations Law

Corporations Act 1989 ss 14, 60(1), 82.

Federal Court Act 1976 ss 18AB, 59.

Federal Court Rules O79

Aboriginal Councils and Associations Act 1976 ss 63, 67,

Acts Interpretation Act s 40A

PERTH, 21 September 1998 (hearing), 22 September 1998 (decision)

#DATE 22:9:1998

Appearances

Counsel for the Applicant: Mr C B Edmonds

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr P J Hannan

Solicitor for the Respondent: Mony De Kerloy

THE COURT ORDERS THAT:

1. The matter be listed for hearing on a date no sooner than 30 October 1998.

   2. The respondent file and serve any further affidavits within 14 days.

   3. The applicant file and serve any affidavits in reply within 7 days.

   4. There be liberty to apply.

THE COURT DECLARES AND ORDERS THAT:

(1) That the Court constituted by a Judicial Registrar has jurisdiction to hear an application to wind up an Incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976 where a judge has referred those proceedings pursuant to Order 79 of the Federal Court Rules.

(2) There be no order as to the costs of the adjournment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FARRELL JR

The applicant in these proceedings seeks an order that the respondent, Murnkurni Women's Aboriginal Corporation ("the Corporation") be wound up pursuant to section 63(1) of the Aboriginal Councils and Associations Act 1976.

However, the applicant submits that the Court as presently constituted does not have the jurisdiction to hear and determine that application, the proceedings having been referred to a Judicial Registrar by a Judge of the Court.

It was agreed between the parties that this issue should be determined as a preliminary matter and that the substantive application be adjourned to a later date.

The Aboriginal Councils and Associations Act 1976 is a Commonwealth statute. It is described in its preamble as:

"An Act to provide for the Constitution of Aboriginal Councils and the Incorporation of Associations of Aboriginals and for matters connected therewith."

Section 63(1) of the Aboriginal Councils and Associations Act 1976 provides that:

"Subject to this section, an Incorporated Aboriginal Association may be wound up under an order of the Court on the petition of:

...(e) the Registrar;..."

The Corporation is an Incorporated Aboriginal Association as defined in the Aboriginal Councils and Associations Act 1976. Section 3 of that Act defines "Court" to mean the Federal Court of Australia. Thus the Act confers jurisdiction on the Court.

Section 18AB of the Federal Court Act 1976 provides that:

"(1A) The Rules of Court may delegate to the Judicial Registrars, either generally or as otherwise provided in the Rules, all or any of the Court's powers in relation to proceedings in the Court in the exercise of the Court's original jurisdiction, except [various listed exceptions not relevant to the present issue]...

(4) A power delegated to the Judicial Registrars is, when exercised by a Judicial Registrar, taken to have been exercised by the Court or a Judge, as the case requires...

(6) The provisions of this Act, the regulations and the Rules of Court, and of other laws of the Commonwealth, that relate to the exercise of a power by the Court apply, in relation to an exercise of the power by a Judicial Registrar under a delegation under this section, as if a reference to the Court or a Judge, or to a court exercising jurisdiction under this Act, were a reference to a Judicial Registrar.

(7) As well as the powers delegated under this section, the Judicial Registrars have such other powers as are conferred on them by this Act, the regulations or the Rules of Court."

The delegation of power authorised by Section 18AB is effected by Order 79 of the Federal Court Rules, which provides that:

"1. All the Court's powers in relation to a proceeding in the Court in which the Court is exercising original jurisdiction (except a proceeding mentioned in subsection 18AB (1A) of the Act) are delegated to each Judicial Registrar...

3. A Judicial Registrar may exercise the powers delegated to the Judicial Registrar under this Order in a proceeding, or part of a proceeding, referred to the Judicial Registrar by the Court or a Judge."

In the absence of complicating factors, the jurisdiction of a Judicial Registrar to hear a winding up application under the Aboriginal Councils and Associations Act 1976, where those proceedings have been referred to the Judicial Registrar by a Judge, would appear well founded on the above provisions.

The potential complication arises from Section 67 of the Aboriginal Councils and Associations Act 1976, which provides that:

"Subject to this Act, the provisions of the Corporations Law that relate to the winding up of companies registered under that Act apply, so far as they are capable of application and subject to such modifications, adaptations and exceptions (if any) as are prescribed, to and in relation to the winding up of Incorporated Aboriginal Associations and, in the application of those provisions:

...(e) a reference to the Court shall be read as a reference to the Federal Court of Australia..."

The other paragraphs of the section prescribe other modifications and adaptations to the Corporations Law.

Section 40A of the Acts Interpretation Act 1901 provides that:

"In any Act, unless the contrary intention appears:

..."Corporations Law" and "Corporations Regulations" have the meaning provided for by the Corporations Act 1989."

Section 14 of the Corporations Act 1989, a statute described in its preamble as "an Act to make a law for the government of the Australian Capital Territory in relation to corporations, securities and the futures industry, and for other purposes", provides that:

"(1) The object of this section is to help ensure that the Corporations Law of the Capital Territory operates, so far as possible, as if that Law, together with the Corporations Law of each jurisdiction other than the Capital Territory, constituted a single national Corporations Law applying of its own force throughout Australia.

(2) Subject to this section, a reference in an instrument to the Corporations Law, or to the Corporations Regulations, is to be taken, for the purposes of the laws of the Commonwealth and of the laws of the Capital Territory:

(a) to be a reference to the Corporations Law, or to the Corporations Regulations, of the Capital Territory; and

(b) to include a separate reference to the Corporations Law, or to the Corporations Regulations, of each jurisdiction other than the Capital Territory.

...(5) In this section:

"instrument" means:

(a) an Act or an instrument made under an Act..."

The Corporations Law of the Australian Capital Territory forms part of the Corporations Act 1989 and is set out in Section 82 of that Act. The significant point for the purposes of the applicant's submission is that Section 60 of the Corporations Act 1989 does not form part of the Corporations Law.

Section 60 provides that

"(1) The power to make rules of court conferred by section 59 of the Federal Court of Australia Act 1976 extends to making rules of court, not inconsistent with the Corporations Law of the Capital Territory:

(a) with respect to proceedings, and the practice and procedure, of the Federal Court of Australia under that Law; and

(b) with respect to any matter or thing that is:

(i) required or permitted by that Law to be prescribed by rules within the meaning of that Law; or

(ii) necessary or convenient to be prescribed by such rules for carrying out or giving effect to that Law; and

(c) without limitation, with respect to costs, and with respect to rules about meetings ordered by the Federal Court of Australia.

(2) When the Federal Court is exercising jurisdiction with respect to matters arising under the Corporations Law of a State, being jurisdiction conferred by a law of a State that corresponds to this Division, that Court must apply the rules of court made under subsection (1), with such alterations as are necessary.

(3) In this section:

"Corporations Law of the Capital Territory" does not include rules of court."

Thus, under Section 67 of the Aboriginal Councils and Associations Act 1976, the provisions of the Corporations Law of the Australian Capital Territory apply in relation to the winding up of Incorporated Aboriginal Associations by the Federal Court.

However, the applicant submits that Section 60 of the Corporations Act 1989 does not apply to the Federal Court for the purposes of those proceedings. Therefore, Section 60 does not deem that the Court's powers under the Federal Court of Australia Act 1976 to make rules of court extends to making rules of court with respect to the winding up of Incorporated Aboriginal Associations under the Aboriginal Councils and Associations Act 1976. Nor does the Aboriginal Councils and Associations Act 1976 confer powers upon the Federal Court to make such rules.

Thus, it is submitted, Order 79 cannot effectively confer jurisdiction upon Judicial Registrars to hear winding up proceedings under the Aboriginal Councils and Associations Act 1976.

I am not persuaded by the applicant's submission.

The deeming effect of Section 60 of the Corporations Act 1989 is necessary because that Act and its various state equivalents provide for the vesting and cross-vesting of jurisdiction in the Federal Court and the various Supreme Courts, so that any one of those Courts can exercise jurisdiction under the Corporations Law of its own or any other jurisdiction.

However, the Court in the current proceedings does not, in my view, require the operation of Section 60. These proceedings are proceedings under the Aboriginal Councils and Associations Act 1976, not the Corporations Law. To the extent that the provisions of the Corporations Law apply, they do so by force of Section 67 of the Aboriginal Councils and Associations Act 1976. The Commonwealth legislature is clearly empowered to confer jurisdiction upon the Federal Court for the purposes of the Aboriginal Councils and Associations Act 1976, and that jurisdiction is not dependent upon the constitutional patchwork which founds the jurisdiction conferred by the Corporations Law.

If the jurisdiction having been validly conferred upon the Court, then the Court is empowered under its Act to make rules delegating its powers to Judicial Registrars, and has done so. Those rules are valid for the purposes of these proceedings and do not require validation by Section 60 of the Corporations Act 1989.

I find therefore that the Court constituted by a Judicial Registrar has jurisdiction to hear an application to wind up an Incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976 where a judge has referred those proceedings pursuant to Order 79 of the Federal Court Rules.

Having heard the preliminary point, I found it necessary to reserve my decision for a short time. I granted an adjournment, as had been contemplated when the parties agreed to hear the applicant's submission as a preliminary point. The applicant seeks the costs thrown away by the adjournment.

Certainly, the Corporation was seeking an adjournment, for its own reasons. It had only recently instructed solicitors and they were not ready to proceed. However, the applicant sought to raise the jurisdictional issue, and it would have been appropriate, even in the absence of agreement, that it be dealt with as a preliminary issue. The Corporation is based in Norseman. The Court would not have required the parties to be ready to proceed, with all the cost and inconvenience that would have involved, when there was a real prospect that the decision might be reversed or, more significantly, that the applicant may have succeeded so that the application would had to have been allocated to a judge, with the likely consequential need to adjourn. Accordingly, each party should bear their own costs of the adjournment.

Given the agreed period of adjournment, the Court as presently constituted will not be available to hear the substantive application. A judge will therefore consider whether the proceedings should be referred to another Judicial Registrar. The judge may decide to hear and determine the matter, notwithstanding the irony of that outcome.

The prospect foreshadowed by the Corporation that it may be seeking mandatory injunctions against the Registrar might be a relevant factor in the decision whether the matter should be heard by a Judge or a Judicial Registrar. It may therefore be desirable that some notice of any such potential applications be given.