Aboriginal Development Commission v. Ralkon Agricultural Company Pty Ltd [1987] FCA 301

the purposes of the Aboriginal Land Fund Act, with the result

that a "grant of interest" given by ALFC to Ralkon in September 1976 was invalid. In March 1980, shortly before ADC succeeded to the land, ALFC decided to rescind the purported "grant of interest" to Ralkon and to substitute a like grant to the Point McLeay Community Council, a corporation

constituted under the Aboriginal Councils and Associations Act

1976. In 1981, by two separate leases, ADC leased Bartlett's Farm to the Point McLeay Community Council for a term of 99 years. In proceedings in this Court Ralkon unsuccessfully

challenged the decision of the Commission to take that step:

see Ralkon Agricultural Company Pty Limited v Aboriginal Development Commission (1984) 1 FCR 210 and, on appeal, (1984)

Following the conclusion of the litigation over the grant of the leases, on 4 April 1985, the Commission served

upon Ralkon a notice to quit requiring it to give up

possession of Bartlett's Farm to the Point McLeay Community Council. Ralkon did not do so and thereupon the Commission commenced ejectment proceedings in the Supreme Court of South Australia. But on 4 December 1985 the Writ and Statement of Claim in those proceedings were struck out as disclosing no reasonable cause of action and the action was dismissed. We understand that the existence of the leases to Point McLeay

Community Council was important to the decision to make those

On 27 October 1986 the Point McLeay Community Council surrendered the leases granted to it in 1981. These

On or about 9 October 1986 Ralkon became aware that ADC was offering Bartlett's Farm for sale by tender. The property was advertised that day in a local newspaper. Tender documents obtained from ADC's agent showed that the property was being offered in nine allotments. The sale was unrestricted, in the sense that there was no limitation as to the persons who might tender to purchase. The tender conditions stated that tenders "will open" (sc. "will be opened") at 10 am on 10 November 1986 at the office of the agent in the presence of a person named or his nominee. Unsuccessful tenderers were to be advised of that fact no

On 27 October 1986 the solicitors for Ralkon wrote to

ADC referring to the sale by tender to members of the public. The letter went on:

"Our client believes that your Commission has no power to offer the land for sale to other than Aboriginal interests. Our client also believes that your Commission has not had regard to the purpose for which the land was

purchased. Our client is a person aggrieved by your decision to offer the land for sale as our client is an occupier of the land and claims a right of long term occupation in the land. It has at least a licence to occupy the land terminable upon reasonable notice. Furthermore, our client has expended a substantial sum of money in improvements to Bartlett's Farm.

Pursuant to provisions of Section 13 of the Administrative Decisions Judicial Review Act our client seeks reasons for the decision

which your Commission has made to offer the land known as Bartlett's Farm by tender. Please provide these as soon as possible." There was no direct response to this letter but ADC has so far

declined to furnish the reasons sought by the letter.

On 3 November Ralkon commenced proceedings under s.5 of the Administrative Decisions (Judicial Review) Act 1977, seeking review of the decision of ADC to offer the land for sale and of its conduct in relation to that decision. Eight grounds of review were specified, ranging from procedural error (denial of natural justice) to lack of power. On 6 November ADC, the respondent to the Application, filed a Notice of Objection to Competency wherein it alleged that it had not made a decision such as was alleged in the Application -- that is to offer the land for sale -- and that, in any

event, such a decision was not a decision under an enactment.

pursuant to s.15 of the Administrative Decisions (Judicial

"15.(1) The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but--

(a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and

(b) the Court or a Judge may order, on such conditions (if any) as it or he thinks fit, a stay of all or any proceedings under the decision.

(2) The Court or a Judge may make an order under sub-section (1) of its or his own motion or on the application of the person who made the application under section 5."

On 12 November 1986 Fisher J made the following orders:

"THE COURT ORDERS THAT upon the Applicant by Its counsel undertaking to abide by any order the Court or a Judge may make as to damages in case the Court or a Judge should hereafter be of opinion that the respondent shall have sustained by reason of this order which the applicant ought to pay:

1, The respondent be restrained from accepting any tender for the purchase of Bartlett's Farm or from entering into an enforceable obligation with any prospective purchaser for a period which expires 14 days after service upon the applicant's solicitors of its reasons for decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 or until further order.

2. There be liberty to either party to apply on 48 hours notice to the other party to vary or discharge this order.

3. The respondent be granted leave to appeal from this order and that the time for service of any notice of appeal run from the 19th November, 1986.

5. That the applicant supply further and better particulars of the grounds of its application for a review within 10 days of the receipt by the applicant of

reasons pursuant to the Section 13 of the Administrative Decisions (Judicial

Review) Act." Reasons for those orders were published by his Honour a few

On 8 May 1987 we heard ADC's appeal against the decision of Fisher J to grant interim relief. At the conclusion of the argument we ordered that the appeal be dismissed with costs. We indicated that we would publish our reasons for that order in due course. These are those

Decisions (Judicial Review) Act are discretionary powers

relating to an interlocutory matter. It is therefore desirable to recall the principles governing the review by an

appellate court of a discretionary decision of a primary judge upon an interlocutory matter. Those principles were refered to by Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P. Brown

Male Fashions Proprietary Limited v Philip Morris Incorporated

"An interlocutory order for an injunction is a matter of practice and procedure. ...

Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. EBlectronic Industries Ltd. [1978] VR 431, at p.440; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. (1952) 77 WN (NSW) 143, at p.146. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.

The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (1946) 46 SR (NSW) 318, at p.323:

'...I am of the opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.'

See also, Brambles Holdings Ltd. v. Trade Practices Commission (1979) 40 FLR 364, at p.365; 28 ALR 191, at p.193; Dougherty v.

Chandler (1946) 46 SR (NSW) 370, at p.374. It Is safe to say that the question of injustice

generally be a relevant and necessary consideration."

The primary submission made to us on behalf of the appellant was that Fisher J erred in making the interim order because there was not demonstrated to him a serious question to be tried relating to the entitlement of ADC to obtain relief in the principal proceeding. The argument had two aspects: there was no serious suggestion that Ralkon was a "person aggrieved" by the decision, so as to be entitled to make an application under the Administrative Decisions

(Judicial Review) Act; and there was no serious issue as to

The test of "serious question to be tried" has been applied by single Justices of the High Court of Australia on

at least three occasions: see The Australian Coarse Grain

Pool Pty Limited v The Barley Marketing Board of Queensland (1983) 46 ALR 398, Tablelands Peanuts Pty Limited v Peanut

Marketing Board (1984) 52 ALR 651, A_v Hayden (1984) 56 ALR 73. It was adopted by Full Courts of this Court in Faingold v

Zammit (1984) 1 FCR 87, in Epitoma Pty Limited v Australasian Meat Industry Employees' Union (1984) 3 FCR 55, in Bullock v

The Federated Furnishing Trades Society of Australasia (1985)

5 FCR 464 and in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98.

The criterion of "serious question" has regularly been used by single Judges of this Court, especially since Epitoma. But other views have been expressed. Although, in the particular circumstances of the case, Jenkinson J joined

with the other members of the court in Dallikavak in adopting

the "serious question" test, his Honour pointed out at p.108 that this test will not always be appropriate: "There will be occasions when the exercise of the power is sought at a time when the refusal (or the grant) of a stay will have grave consequences, but it is impossible to form any view as to whether there is such a question to be tried. There will be cases in which the prejudicial consequences for the applicant of refusal of a stay (or for the community of grant of a stay) are.of a kind or degree outside the contemplation of those who framed the criteria governing the grant* of interlocutory injunction relief in litigation concerning proprietary and

Jenkinson J expressed agreement with the criterion suggested by Keely J, in Perkins v Cuthill (1981) 52 FLR 236 at p.238, for the exercise of the power to make interlocutory

orders under s.15 of the Administrative Decisions (Judicial

Review) Act: "s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just

that the court should make the order sought". In Videto v

Minister for Immigration and Ethnic Affairs (1985) 8 ALN 237

Toohey J expressed his agreement with these remarks. See also

Phang Yook Yah v Mahoney (Pincus J, 1 May 1986, not reported) and Snow _v Deputy Commissioner of Taxation (French J, 4

However, applying the "serious question" test, it is clear that the enquiry whether there is a serious question to

be tried must be answered with reference to the circumstances

of the case. There may be cases in which the facts are so clearly and comprehensively established at the time of the application for the interim order that the court would conclude that the applicant had no arguable case. At the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is some material to suggest an entitlement to relief. Upon further investigation that material may turn out to be capable of ready refutation or explanation but, in the meantime, it may be appropriate for the Court to intervene. Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or of refusing relief. This is what was meant by Woodward J when, in Bullock at p.472 and in Jungpradit v Hurford (21 August 1985, not reported) he spoke of considering together the two tests of "serious question" and "balance of convenience". The overriding principle is that referred to by Dawson J in Hayden at p.79 "that a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete

It is with this understanding that we apply the "serious question" test to the present case, bearing in mind that, at the time of the hearing before Fisher J, no s.13 reasons had been supplied to Ralkon by ADC and that there had been little other opportunity for Ralkon to investigate the circumstances surrounding the calling for tenders for purchase

The submission that there was no serious suggestion that Ralkon was a "person aggrieved", within the meaning of the Administrative Decisions {Judicial Review) Act, encounters formidable difficulties. In the earlier litigation between the parties it had been held that Ralkon was a licensee of Bartlett's Farm. [In their joint judgment in the Full Court, at 5 FCR 68, Fox and Woodward JJ had said: "undoubtedly Ralkon secured a licence to occupy the land, but it did not in terms of grant acquire any greater interest". This conclusion, with which Davies J agreed and which was consistent with the view which had been expressed by Fisher J at first instance, bound the primary judge when he came to consider the present case. It was, of course, arguable that intervening events had changed that situation; but the significance of those events -- involving as it does complex questions of both fact and law -- was not something which could appropriately be determined upon the hearing of an

application for an urgent interlocutory injunction.

In any event, even if the effect of intervening events was that Ralkon had become, in law, a trespasser, Ralkon was a trespasser which had been suffered to remain in occupation of the farm for a long time and which claimed to have spent a substantial sum on improvements. In the absence of a sale, the existing situation might have been allowed to continue. On the other hand, a sale by ADC of any part of the property must have increased the likelihood of further

ejectment proceedings, by either ADC or its purchaser or

purchasers, against Ralkon. The decision to put the property on the market therefore had consequences for Ralkon different in nature and in kind from the consequences of that decision

for members of the public generally: see Robinson v Western

Australian Museum (1977) 138 CLR 283 at p.328, Ogle v

Strickland (Full Court, 13 February 1987, not reported),

Stammers v Australian Postal Commission (Wilcox J, 1 April

Counsel for ADC submitted to Fisher J that, in the light of the earlier litigation, it was obvious that Ralkon's application was entirely without merit and that it was made to delay and to manipulate. Given the fact that the application related to a decision just made, which had no direct relationship to any previously litigated matter and in connection with which reasons had not been supplied, the submission was boldly made. It was rejected. Although Fisher J understandably felt that he lacked sufficient material to form any real view upon the merits of the matter, he did think

that serious questions arose. In his reasons he said:

"Purthermore, there are difficult questions which arise in respect of the power of the A.D.C. to sell without reference to the interests of the Aboriginal body which is occupying Bartlett's Farm. Admittedly under s.12 of the Aboriginal Development Commission Act 1980 it has power to acquire hold and dispose of real and personal property. However the function of the Commission is stated by s.8 as the furtherance of the economic and social development of Aboriginals and to assist communities and groups of Aboriginals to acquire land and engage in business enterprises. Sections 27, 28 and 29 of that Act have doubtless been enacted in furtherance of this function. If one is required to decide whether a serious question arises it is at this stage, in the absence of reasons and particulars of the grounds for a review, hard to answer in the negative."

We agree with those observations. Moreover, Fisher J was confronted with a decision of major significance to the applicant, the reasons for which were not yet known. It was consistent with the principles to which we have already referred that his Honour should have held, as he did, that there was a sufficient case on the merits to justify the

A submission was put to us that the balance of convenience lay in refusing an injunction. The reason given was that the restraint would "occasion a significant deterrent to the public interest by preventing ADC carrying out the legislative scheme designed to enable it 'to further the economic and social development of Aboriginals'". How that legislative object would be facilitated by ADC being free to sell to strangers, land acquired for the use of, and still being used by, local Aboriginals, was not explained to us.

But we entertain no doubt that the primary judge was correct in regarding the balance of convenience as favouring the grant of an injunction. Not to grant an injunction was to expose Ralkon to the possibility -- perhaps the probability -- of a sale of the property to strangers, thus prejudicing the prospect -- if its claim was well-founded - that appropriate relief could be granted. To grant an injunction would be to retain the existing situation during the short period

The decision of Fisher J was not merely open to him,

We cannot leave the case without making some comments, at two different levels, regarding this litigation. The first level relates to the conduct by the appellant of this particular piece of the litigation. We have set out the terms of the order made by Fisher J. The injunction he granted would have expired 14 days after service upon Ralkon's solicitors of the s.13 reasons they had requested. If ADC had been anxious to finalise the matter those reasons could have been furnished. This would have caused the injunction to expire, clearing the way for a sale of the property, unless Ralkon had been able to persuade a Judge, in the light of those reasons, to make a fresh injunction. Instead ADC appealed against the injunction. It took no steps to expedite the appeal, with the result that a period of six months elapsed between the date of the injunction and the time when the matter came before us. We can understand that ADC may have been concerned that the delivery of s.13 reasons might have been taken to concede Ralkon's status as a "person aggrieved" or that the decision was one made under an enactment. But the reasons could have been delivered without prejudice to ADC's position on those matters. We note with concern that the Notice of Objection to Competency is intended to be heard separately from the principal proceeding. This is net only a course often wasteful of expense; it is also highly inconvenient in a case where the facts relevant to

competency are intertwined with those critical to the merits.

This appears to be such a case, both in connection with the applicant's entitlement to occupy the land and the nature and

legality of the respondent's decision to offer it for sale.

Secondly, at a more fundamental level, we are moved to express our dismay at the prospect of yet another bout of litigation between these parties. The series of actions commenced in 1981: see 43 ALR 535. Although we have no information as to Ralkon's assets, we have no doubt that those who control Ralkon could find many more useful ways of spending its resources than upon litigation. On the other side, the funds of ADC are provided by Parliament out of public moneys for the advancement of the Aboriginal community, not for the advancement of lawyers. Bartlett's Farm was acquired in 1975 because it was thought necessary to do so in the interests of the local Aboriginal community. There is nothing before us to indicate that this need has abated. It would be most unfortunate if the land were now sold simply because of personal differences or the inflexibility of one or both of the present parties. We express the hope that, before further legal costs are incurred, the parties will see whether it is yet possible for them to come to an agreement which would reflect the best interests of the local Aboriginal

I certify this and the fourteen (14) preceding pages to be a true copy of the Reasons for LD [°)

Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: