Jali Local Aboriginal Land Council v Anderson; Jali Local Aboriginal Land Council v Hickling

1. Pursuant to orders made on 12 December 2024, each of these matters are to be heard and determined together. Those orders also apply to the summary dismissal applications.
2. As to the hearing of the summary dismissal applications, each party submits that they may be determined without a hearing, as contemplated by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Each party provided written submissions in relation to the summary dismissal applications and identified the materials they respectively rely on. The parties agree that there is no need for oral evidence or cross examination on the summary dismissal applications.
3. In considering whether a hearing is required, I am mindful of the following:

(1) The Objects of the Tribunal include "to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members": ss 3(f) and (g) of the NCAT Act.

(2) The importance of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476; John Fairfax Publications Pty Ltd v Ryde Local Council (2005) 62 NSWLR 512; [2005] NSWCA 101 at [60]- [63].

(3) The principles of open justice apply to the Tribunal: Forest v Suzanne [2022] NSWCATAP 188 at [30].

(4) The starting position is that a hearing is required (unless it falls into one of the specified exceptions) and that hearings are open to the public (unless otherwise ordered): ss 50 and 49 of the NCAT Act.

(5) There is nothing in the enabling legislation, the Act, to suggest otherwise.

1. For the following reasons, it is appropriate to dispense with a hearing of the summary dismissal applications:

(1) This decision concerns applications for summary dismissal on very confined questions, primarily concerning statutory interpretation.

(2) The parties provided comprehensive written submissions.

(3) No oral evidence is required; and nor is there any need for cross examination.

(4) Each party is legally represented and each has confirmed that this is an appropriate case to be determined "on the papers".

(5) This decision will be published and will expose the Tribunal's reasoning and the submissions.

(6) Where, as here, the hearing would likely simply amount to a recitation of the written submissions, there is a public interest in conserving the Tribunal's resources and the costs to the parties.

1. Therefore, in accordance with s 50 of the NCAT Act, having afforded the parties an opportunity to make submissions and having taken those submissions into account; and further, being satisfied that this is in accordance with the requirements of the NCAT Act, the enabling legislation and the procedural rules, I am satisfied that this is an appropriate case in which to dispense with a hearing.

1. The Tribunal may summarily dismiss any proceedings before it if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance (NCAT Act, s 55(1)(b)).
2. The principles for summary dismissal are well-established. In General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129; [1964] HCA 69 (General Steel), Barwick CJ stated that the various tests for summary dismissal include whether the case is: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; or, "discloses a case which the Court is satisfied cannot succeed". In Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] the High Court noted that however formulated, the tests "are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way".
3. The power to summarily dismiss a proceeding should be used sparingly and only in clear cases where the Tribunal is satisfied "that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion": General Steel at 128-129.
4. The applicant's case (i.e., the applicant in the substantive proceeding) must be assessed by taking the evidence at its highest: Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [200].

67 Vacancy in office

(1) A person who is a Board member of a Local Aboriginal Land Council vacates office if the person -

...

(b) is absent from 2 consecutive meetings of the Board or the Council of which reasonable notice has been given to the person personally or by post, except on leave granted by the Board or unless the person is excused by the Board for having been absent from those meetings...

...

(2) A vacancy does not arise under subsection (1)(b) until the Board has -

(a) given the member reasonable notice of the Board's intention to consider at a meeting of the Board whether to excuse the member for the absences, and

(b) resolved at the meeting not to excuse the member for the absences.

1. From the face of s 67 of the Act, for there to be a vacancy in office, the following must have occurred:

(1) There were two consecutive meetings of the Board.

(2) Reasonable notice for each of the Meetings was given.

(3) The person was absent from each of the two consecutive meetings.

(4) Leave of absence was not granted by the Board; nor was the person excused "for having been absent".

1. Further, pursuant to s 67(2), before a vacancy arises:

(1) the Board must give the member reasonable notice of the Board's intention to consider whether or not to excuse the member for absences; and

(2) the Board must have resolved not to excuse the member.

1. The vacancy in office occurs once the factual circumstances listed in s 67 of the Act are satisfied: Flaherty v Office of Local Government [2024] NSWCATOD 68 at [10].
2. Section 69(1) of the Act provides:

Any person may apply to the Civil and Administrative Tribunal for an order declaring that a particular office of a Board member of a Local Aboriginal Land Council has become vacant under this Act.

1. It follows from s 67(1)(b) and (2) of the Act that the Tribunal may only declare a particular office vacant, if satisfied of the matters in the foregoing paragraphs.

The material relied on and the evidence before the Tribunal

1. The relevant meetings of the Board (the Meetings) are said to be:

(1) 19 March 2024

(2) 26 March 2024

(3) 3 April 2024

(4) 9 April 2024

(5) 22 April 2024.

1. As it currently stands, the extent of the evidence before the Tribunal is an affidavit of the Chairperson of the Board affirmed on 22 October 2024 and a statutory declaration of one of the respondents dated 9 October 2024.
2. The Tribunal does not have any minutes of the Meetings on the above dates.
3. At Annexure JL15 to the affidavit of the Chairperson are minutes from a Board meeting held on 11 June 2024. Item 6 on the agenda is "previous minutes & business arising". The meetings listed there are 6 February, 16 February, 26 February, 7 May and 16 May 2024. It is noted that no meetings in March or April 2024 are listed.
4. Production of the minutes from the relevant Meetings was sought under a summons directed to the Council, but none were produced.
5. At present, the only documentary evidence before the Tribunal in relation to any of the Meetings is an agenda for the meeting on 26 March 2024, which is annexed to the statutory declaration. The agenda has been annotated by hand with the words "cancelled no quorum".
6. The Council appears to accept that the meetings did not proceed; though for reasons set out below, the extent of this concession must be more fully explored in due course.

1. The Council contends that, in each case, the respondent Board member was indeed absent from two consecutive Meetings, as contemplated by s 67 of the Act.
2. All parties seem to accept that the Meetings did not occur because, in each identified case, a quorum could not be reached. Nevertheless, the Council maintains that it is entitled to the relief it seeks, at least in part, because the lack of a quorum occurred because the Board members "colluded" to "boycott" the Meetings.
3. The contention that the Meetings did not occur lay at the heart of the summary dismissal applications; however, several other issues were also raised.

Other contentions on the summary dismissal applications

1. Originally, the applications did not seek an extension of time. This was described as a "jurisdictional issue", said to bar the Council from the relief it seeks. However, since then, the Council sought an extension of time (assuming one is required). The Council refers to various matters that explain the time taken to file the substantive applications, including awaiting advice from the Registrar of the Aboriginal Land Rights Act. As this falls to be decided on some, possibly, contentious evidence and that granting an extension of time (assuming one is necessary) is a matter for the exercise of the Tribunal's discretion pursuant to s 41 of the NCAT Act, this does not provide a basis to allow the summary dismissal application.
2. A further contention to ground the summary dismissal applications, which is also related to the question of time, is that, originally, some of the applications had been filed with the wrong name cited in that part of the application form detailing the relief sought. This has now been addressed by amendments, but the issue remains whether the amended applications were filed within time or if an extension should be granted. This, too, does not provide a basis to allow the summary dismissal applications.
3. A further ground for the summary dismissal applications is that reasonable notice was, allegedly, not given for some or all the Meetings. As identified below, the Act does not specify the number of days of notice required; and therefore, this is not an issue amenable to be determined summarily.
4. Further still, a question arises as to whether a leave of absence was granted for some Board members for some Meetings, or whether particular absences were "excused". To this end, there is a submission that in some cases the Council acted unreasonably in not accepting certain apologies. Again, this is not an issue amenable to summary determination.
5. Accordingly, I refuse to order summary dismissal on the abovementioned bases, as it could not be said, to the requisite standard, at this preliminary stage, what the outcome would be.
6. I turn now to consider the core issue: whether the Meetings occurred.

61 Local Aboriginal Land Councils to have Boards

(1) Each Local Aboriginal Land Council is to have a Board consisting of not less than 5, and not more than 10, members.

(2) The number of Board members for each Local Aboriginal Land Council is to be determined in accordance with the regulations.

(3) Part 2 of Schedule 3 has effect with respect to the procedure of Boards of Local Aboriginal Land Councils.

(4) The regulations may prescribe additional requirements with respect to meetings.

1. Part 2 of Schedule 3 to the Act sets down some procedural requirements that apply to Boards of Local Aboriginal Land Councils. Relevantly, clauses 2 and 3 state:

2 General procedure

The procedure for the calling of meetings of the Board and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Board.

3 Quorum

The quorum for a meeting of the Board is a majority of its members for the time being.

1. Section 52F(2) of the Act provides that the rules prescribed by the Aboriginal Land Rights Regulation 2020 (NSW) (the Regulations) as model rules, are the rules for the Local Aboriginal Land Council. However, a Local Aboriginal Land Council may prepare its own rules and submit them to the Registrar for approval: s 52F(3) of the Act.
2. In the absence of evidence that the Council has its own rules, I proceed on the basis that the model rules apply.
3. The model rules are contained in Sch 1 to the Regulations. Clause 6 in Sch 1 prescribes requirements for the calling of ordinary meetings of the Council, but not for Board meetings.
4. Clause 19 of the model rules outlines the duties of a Chairperson. The subclauses expressly refer to meetings of the Council, but by virtue of cl 19(4) are stated to apply mutatis mutandis to meetings of the Board. The duties in cl 19(3) relevantly include:

(3) In particular, the Chairperson must -

(a) before each Council meeting -

(i) consult with the chief executive officer in the preparation of an agenda, and

(ii) ensure that the notice of the meeting conforms with these Rules, and

...

(b) open the meeting when a quorum is present, ask for any apologies to be tabled, then welcome new members and guests, and

...

(h) close or adjourn the meeting when -

...

(iv) a quorum of members is no longer present.

1. Three of the respondents also relied on clauses 7 and 46 of the Regulations. Clause 7 prescribes notice requirements for meetings of Local Aboriginal Land Councils (not meetings of the Board) for the purpose of approving a land dealing under s 42G(5)(a) of the Act. Clause 46 applies to meetings, including annual meetings, of the Council. These provisions do not have direct relevance to the circumstances being considered here.
2. The other respondent did not rely on those provisions; but instead, asserted that there is a 7 day notice requirement for meetings of the Board. This was on the basis that the Registrar under the Act advised the Board that a 7 day notice period is considered "reasonable". This advice is not in evidence, but it would not be applicable or dispositive unless the respondents were able to demonstrate that the Board had adopted that notice requirement pursuant to Schedule 3, Part 2, cl 2 of the Act.

Can there be a board meeting when there is no quorum?

1. At core, the issue is whether there can be a Meeting, from which a Board member could be absent, for the purposes of s 67 of the Act, when there is no quorum and the Meeting does not, in fact, go ahead.
2. On the evidence currently before the Tribunal, it is not possible to determine whether, for instance:

(1) at some or all of the Meetings, some members of the Board attended at the appointed time and place and the Meeting was adjourned because there was no quorum and the Meeting could not be "opened"; or,

(2) whether each of the Meetings was cancelled in advance of their appointed starting times, because the Chairperson was on notice that the required number of Board members to reach a quorum would not be in attendance.

1. In the former case, there might be an available argument that the Meeting occurred, even though it could not be "opened". In the latter case, it might readily be concluded that the Meeting did not go ahead and there could not be an absence, by a Board member, from it.
2. Further still, it is not clear, precisely, how the Council's contention that the respondents "colluded" to "boycott" the Meetings (assuming that could be proved) affects the question of whether there was a Meeting at all; as opposed to explaining why there was no Meeting. It may, ultimately, be the case that colluding to boycott a meeting of the Board warrants some conduct being taken by the Council, but does not lead to a vacancy in office, on the terms in s 67 of the Act.
3. According to the model rules, the Chairperson was to "open the meeting when a quorum is present". As a quorum was not reached, it stands to reason that not one of the Meetings was opened. However, it is not clear, yet, what that means. At least one of the Meetings appears to have been "cancelled"; and it is not yet clear what that means either.
4. At least at this stage, it appears to the Tribunal to be a pre-condition to the respondents being held to be absent from a Meeting that a Meeting occur, even if that Meeting is not "opened". However, that issue should be the subject of further legal argument.
5. Summarising the position and taking the evidence at its highest:

(1) At the time of the Meetings, there were 10 Board members for the Council.

(2) Under Schedule 3, Part 2, cl 3 of the Act, a quorum is a majority of the members of the Board: that is, 6 members.

(3) The four respondents, along with one other Board member, did not attend the Meetings. Accordingly, a quorum could not have been reached at the Meetings, even if a Meeting was convened in the sense that a minority of the members of the Board arrived at the appointed time.

(4) Assuming a Meeting was not "opened", it is not clear if that means a Meeting occurs, in the requisite sense. This is an open question, and one which involves questions of fact and law.

(5) There is a dearth of evidence about the Meetings.

(a) No minutes have been provided.

(b) A single hand-annotated agenda for the meeting on 26 March 2024 suggests that one meeting was "cancelled" due to a lack of quorum.

(6) Whether a cancelled meeting, so described, can be considered a meeting of the Board from which the respondents were absent for the purposes of s 67(1)(b) of the Act is an open question, and one which involves questions of fact and law.

(7) Whether the alleged "boycott" of the meetings by the respondents took place, and if so what the effect of such a boycott would be on the Tribunal's assessment, may also be relevant. This, too, raises an open question, and one which involves questions of fact and law.

1. Merely summarising the position highlights that these proceedings are not apt for summary dismissal. There are issues of fact and law to be heard and determined, none of which can be said to be so obviously untenable that they cannot possibly succeed; or conversely, so obviously correct that the Council could not make out its case.
2. Consideration of the evidence, including cross examination of witnesses and comprehensive submissions on the law and facts will be required to determine the Council's substantive application.
3. At this stage of the proceedings, I would not shut out the Council from proceeding with the substantive applications.
4. For the foregoing reasons, I refuse the summary dismissal applications.
5. Any application for costs in relation to the summary dismissal applications is, unless otherwise ordered, to await the determination of the substantive proceedings.

(1) The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) Each respondent's application for summary dismissal of the underlying proceedings is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.