Graham v Newchurch

COLVIN J: 1 The applicant claims to be a director and member of the Ngadju Native Title Aboriginal Corporation RNTBC. The Corporation is being managed by its board of directors in the absence of a chief executive officer, and there is currently no independent director of the Corporation. The consequence of this state of affairs is that the Corporation is unable to form a quorum for a meeting of directors and, therefore, there is uncertainty as to the extent to which decisions can be made in the conduct of the affairs of the Corporation and in particular as to the ongoing management of those affairs. 2 Various disputes have arisen concerning the control of the Corporation and whether particular persons have authority to conduct the affairs of the Corporation. The disputes include issues about whether appropriate steps were taken in relation to the security of the Perth premises of the Corporation and access to those premises, as well as access to the computing system of the Corporation and whether it is appropriate for a new consultant to be appointed to conduct the IT system of the Corporation. 3 The applicant seeks interlocutory injunctive relief as a representative acting for and on behalf of the Corporation. The relief sought would restrain the first to fourth respondents from disposing of or dealing with or diminishing the value of funds held by the Corporation in certain nominated bank accounts and from appointing a new IT provider who would have control over access to the Corporation's computer systems. 4 The principles to be applied are well established: see the summary by Jackson J in Frigger v Trenfield [2019] FCA 1746 at [6]. The applicant must demonstrate that (a) there is a serious question to be tried as to the basis for the claim to relief; (b) there is a likelihood of injury for which damages will not be an adequate remedy; and (c) the balance of convenience favours the granting of an interlocutory injunction. 5 In circumstances where there is evidence that steps have been taken by the first to fourth respondents to alter the authority in relation to the conduct of the affairs of the bank account, despite being made aware of the current position concerning the management of the company, I am satisfied that it is appropriate to make orders to ensure that the funds of the Corporation are properly protected pending an annual general meeting (AGM). An AGM which has been convened for the Corporation for 29 November 2023. That has been the position for some time and there have been consultation meetings in relation to the convening of that AGM. 6 All parties agree that it is necessary for the AGM to proceed. Plainly, given the current position in relation to authority to undertake the management of the affairs of the Corporation, the conduct of an effective and valid AGM to appoint the necessary officers as soon as possible is a matter that is in the interests of the Corporation and its members. 7 In my view, beyond what I have already said in relation to the current circumstances of the management of the Corporation, it is not necessary to address the various allegations that have been made because, in the current circumstance of the company, it is necessary to put in place some form of caretaker arrangement to facilitate the AGM and have the uncertainty in relation to the management of the Corporation resolved. 8 In relation to those caretaker arrangements, there are competing positions advanced by the parties. The applicant proposes that there should be an arrangement whereby the employees continue to have responsibility for those arrangements. It is said that is the course that has been followed in the past and that until recently that is what had been occurring in relation to those arrangements. The first to fourth respondents propose a different course whereby there would be some caretaker arrangements by which an appropriate group comprising, in effect, the parties who are in dispute would meet and consider the steps that should be taken to arrange the AGM and then carry into effect steps which they unanimously agree. 9 The Corporation is established by legislation which is designed to have regard to cultural practices amongst aboriginal people and for particular purposes, as described in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). In my view, it is appropriate to have regard to those particular aspects of the Corporation and the purposes which it serves in deciding what are the appropriate orders. 10 For those reasons, the course that I propose to follow is one which would see orders made in relation to the bank account, but on terms that would establish a caretaker body which would then determine what should happen in relation to the AGM, and whether it is necessary to expend further funds in undertaking other steps. 11 On the evidence that is before me, it is not necessary to provide for the employees or the ongoing operating expenses of the Corporation because, on the evidence, they are to be met by a charitable trust which provides funds on a quarterly basis for the operations of the Corporation and the evidence indicates that those moneys will be made available to meet those costs in the short period between now and when the AGM will occur. In relation to the issues that have arisen concerning the IT consultant, it seems to me that it would be inconsistent with a caretaker role for there to be any change to the arrangements in relation to the IT consultancy. Therefore, the orders that I propose to make for those caretaker arrangements will mean that there can be no change to those arrangements pending the AGM. 12 The orders I will make will provide for the caretaker body to meet and consider whether there are any particular arrangements that may be needed to be put in place for the purposes of the effective and valid conduct of the AGM that have not already been attended to and the extent to which funds of the Corporation need to be released for those purposes, having regard to the availability of funds from the trust. If unanimous agreement is reached as to those matters by members of the caretaker group then they can be proposed to the Court as variations to the orders I will make today. If unanimous agreement cannot be reached then the Court will hear further submissions from the parties at short notice as to any variation to the orders to provide for particular arrangements for the AGM and the funding of those arrangements. 13 For the above reasons, orders were made on the basis of the applicant's undertaking as to damages. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.