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Trindall v Minister for Aboriginal Affairs

Trindall v Minister for Aboriginal Affairs

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Land and Environment Court

of New South Wales

CITATION: Trindall & Ors v Minister for Aboriginal Affairs [2004] NSWLEC 121

PARTIES: Les Trindall (1A)
Robert Lester (3A)
Oswald Cruse (4A)
William Murray (5A)
James Morgan (6A)
Manul Ritchie (7A)
David Clark (8A)
Wayne Griffiths (9A)
Thomas Briggs (10A)
Minister for Aboriginal Affairs (1R)
Murray Chapman (2R)

FILE NUMBER(S): 41422 of 2003

CORAM: McClellan CJ

KEY ISSUES: Aboriginal :- NSW Aboriginal Land Council
Validity of the appointment of an investigator
Validity of the investigator's report
Validity of the appointment of an administrator
Procedural Fairness:
Minister's duty to accord procedural fairness in appointing an investigator and in appointing an administrator
investigator's duty to accord procedural fairness during an investigation
Words & Phrases:
"extend"
"extension"

LEGISLATION CITED: Aboriginal Land Rights Act 1984 (NSW)
Aboriginal Land Rights Amendment Act 2001 (NSW)
Interpretation Act 1987 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Local Government Act 1993 (NSW)
Patents Act 1952 (Cth)

CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564;
Allen Allen & Hemsley v Deputy Federal Commissioner of Taxation (1988) 81 ALR 617;
Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 599;
Calvin v Carr [1980] AC 574;
Cornall v A B (A Solicitor) [1995] 1 VR 372;
Dainford Limited v Smith & Anor [1985] 155 CLR 342;
Freeman v Health Insurance Commissioner (2000) 97 FCR 249;
Jones v Dunkel (1959) 101 CLR 298;
Kioa v West (1985) 159 CLR 550 ;
Mahon v Air New Zealand Ltd [1984] AC 808;
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381;
Minosea Pty Ltd v Australia Securities Commission (1994) 35 ALD 493;
Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201;
Parke Davis Pty Ltd v Sanofi (No 2) (1982) 43 ALR 487;
Payne v Parker [1976] 1 NSWLR 191;
Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50;
Peacock v Human Rights and Equal Opportunity Commissioner [2003] FCAFC 50;
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355;
R v Magistrate's Court at Lilydale; Ex parte Ciccone [973] VR 122;
Re Minister for Immigration & Multicultural Affairs ex parte Miah (2001) 206 CLR 57;
Refugee Review Tribunal, Re: Ex parte Aala (2000) 204 CLR 82;
State of South Australia v O'Shea (1987) 163 CLR 378;
Tasker v Fulwood (1978) 1 NSWLR 20;
Tickner v Chapman (1995) 57 FLR 451;
Trustees of Christian Brothers v Cardone (1995) 130 ALR 345;
Western Television Limited v Australian Broadcasting Tribunal (1986) 12 FCR 414

DATES OF HEARING: 19-22 January 2004

DATE OF JUDGMENT: 04/06/2004

LEGAL REPRESENTATIVES:

J Griffiths SC/J K Kirk (Appls)
Chalk & Fitzgerald (Solicitors - Appls)
M Leeming (Resp)
I V Knight (Solicitor - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41422/03

McCLELLAN J

TUESDAY, 6 APRIL 2004

TRINDALL & ORS

Applicant

MINISTER FOR ABORIGINAL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 121
Decision Date: 04/06/2004

CaseChat Overview and Summary

The applicants, Les Trindall and others, were members of the New South Wales Aboriginal Land Council (NSWALC). They challenged the validity of the appointment of Mr Wayne Beauman as investigator and the validity of his report, as well as the subsequent appointment of Mr Murray Chapman as the administrator of the Council. The applicants sought orders setting aside the appointments and other relief. The respondents were the Minister for Aboriginal Affairs and Mr Chapman. The Minister for Aboriginal Affairs had appointed Mr Beauman to investigate the Council and, on the basis of the report, appointed Mr Chapman as the administrator. The applicants alleged that the Minister did not afford procedural fairness when appointing Mr Beauman and that the report was invalid because it was not completed within the time specified in the instrument of appointment. They further alleged that the appointment of Mr Chapman was invalid because the report was invalid. The applicants argued that Mr Beauman's report was invalid because it was not the report of Mr Beauman, and that it contained legal errors. The applicants also argued that Mr Beauman was under a duty to accord procedural fairness during the investigation. The Court held that the appointment of Mr Beauman was valid, that the report was valid despite not being completed within the time specified in the instrument of appointment, and that the appointment of Mr Chapman was valid. The report was not invalid because it was not completed within the time specified in the instrument of appointment because the purpose of the extension of the term of office of an investigator was to enable a report to be prepared. The report remained the report of Mr Beauman despite the assistance of others because he had considered their work before settling the final draft of the report. The applicants' complaints about the legal errors in the report did not render it invalid. The report contained a discussion of the relevant law and even if it contained some errors, it did not follow that the report was invalid. The applicants were not entitled to procedural fairness during the investigation because the investigation was a statutory investigation which could not affect the position of the Council without some later action of the Minister. The applicants were also not entitled to relief because they had waived their rights by not commencing proceedings at an earlier point in time. The application was dismissed and the applicants were ordered to pay the respondents' costs.

Orders