Jameson v Guri Wa Ngundagar Aboriginal Corporation

Vacation of offices 73. On the appointment of the Administrator: (a) the office of the public officer of the corporation becomes vacant; and (b) … (c) if the corporation is an Incorporated Aboriginal Association - all offices of the members of the Governing Committee of the Association become vacant.

General powers of the Administrator 75. The Administrator is responsible for the conduct of the affairs of the corporation and in addition has the functions and duties of the public officer.

PROCEDURAL BACKGROUND 6 By letter dated 19 April 2001, the Acting Registrar appointed the applicant, Mr Barry Jameson, as administrator of the Corporation effective from 26 April 2001. Prior to Mr Jameson's appointment the second respondents were members of the governing committee of the Corporation ("Committee"). It would seem that the second respondents resisted Mr Jameson's appointment and obstructed him in the discharge of his duties. By application filed on 3 May 2001, Mr Jameson, in his capacity as administrator, sought a declaration that he was validly appointed as administrator of the Corporation, a declaration that all offices of the Corporation's governing committee became vacant on his appointment as well as certain consequential relief. 7 On 3 May 2001, I made certain interlocutory orders in this matter ([2001] FCA 561). In my reasons for judgment, I made the following comment: "The second respondents have challenged the appointment of the administrator, not by the processes of law but by refusing the administrator access to the Corporation's premises and refusing to hand over the property of the Corporation." Perhaps in response to these comments, on 21 May 2001 the second respondents filed a cross-claim seeking an order under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") setting aside Mr Jameson's appointment. An amended cross-claim was filed in Court on 22 June 2001.

appointment of administrator 8 The facts summarised under this heading are drawn mainly from the affidavit of Mr Garry Fisk, who is the Director, Regulation, in the Office of the Registrar of Aboriginal Corporations, sworn on 14 June 2001. Mr Fisk's evidence was not challenged. 9 On 23 February 2001, the Registrar, being the second cross-respondent in this proceeding, was given a handwritten report prepared by Mr Mastrolembo, Executive Director, Client Services in the Office of the Registrar, recommending that a "section 60 examination" take place urgently. That report refers to "claims and counterclaims" of fraud and misappropriation of funds, disputes within the Corporation, alleged breaches of the Act and the Corporation's rules as well as alleged harassment, intimidation and unfair dismissal of staff. 10 On 27 February 2001, Mr Mastrolembo received a letter from the Aboriginal and Torres Strait Islander Commission ("ATSIC") advising that it was appointing a grant controller to the Corporation. In relation to this appointment, Mr Fisk stated in his affidavit that a grant controller, usually an accountant, is appointed where ATSIC has concerns about the ability of a corporation to manage funds granted by ATSIC. 11 Mr Eddie Pippet, a chartered accountant, was appointed under s 60 to conduct an examination of the books and records of the Corporation. The nature of a s 60 examination is outlined in [4] above. The Corporation and the Committee were informed of this appointment by letter dated 9 March 2000. Mr Pippet provided the Acting Registrar with an interim report on 22 March 2001 and a final report on 27 March 2001. In his note accompanying the interim report Mr Pippet made the following comment: "As discussed this morning, this case is so clear cut and so urgently in need of action, I am taking the unusual step of sending this preliminary report so that matters can be put into action your end as soon as possible." 12 On 27 March 2001, a senior investigator in the Office of the Registrar sent a memorandum to the Acting Registrar summarising Mr Pippet's report and recommending that, as a matter or urgency, a notice be served on the Corporation in accordance with s 71(1) of the Act. The provisions of s 71(1) are set out in [5] above. The recommendation in the memorandum was approved under the hand of the Acting Registrar and a handwritten note on the memorandum, presumably written by the Acting Registrar, states "…my only question is if it can be done quicker". 13 On 29 March 2001, the Acting Registrar signed a notice pursuant to s 71(1) of the Act, addressed to the public officer of the Corporation ("show cause notice"). The show cause notice stated that, before noon on 9 April 2001, the Corporation was required to show cause why an administrator should not be appointed. There was some dispute as to when the Corporation received the show cause notice; see [22]-[28] below. 14 The show cause notice listed grounds that would justify the appointment of an administrator if the Registrar were satisfied that they were established. These grounds were that the Committee had failed to comply with provisions of the Act, the regulations or the Corporation's Rules and that the appointment of an Administrator was required in the interests of the Corporation, its members, its creditors and the public. The show cause notice alleged certain irregularities in relation to the appointment of the public officer, the maintenance of the register of members, the keeping of the Corporation's accounts and records and the election of Committee members. It also referred to issues of concern identified in the s 60 examination as follows: · "There is considerable doubt as to whether the annual general meeting held in September 2000 was validly held and the Committee validly appointed because notice was forwarded to members, but several days before the meeting telephone calls were made to members during which it was stated that the meeting would not proceed. On the morning of the day scheduled for the meeting further telephone calls were made informing members that the meeting was in fact to be held at 11.00am on that date.

· That in accordance with Rule 34 a quorum for the annual general meeting was 63, however there were between 64 and 68 persons in attendance, of whom six or eight were not members.

· Two members of the Committee elected in September 2000 have received no notice of Committee meetings which have been held in a variety of locations.

· A Committee meeting was purportedly held on 15 January 2001 for a purpose of terminating the employment of the CEO (Mr Noel Lockwood) and other staff.

· On 30 January 2001, Mr Lockwood organised a meeting of the Corporation's members and interested community parties with the intention of discussing events which had then recently occurred. That meeting did not proceed because of alleged abuse of Mr Lockwood by persons on the Committee. Subsequently, Mr Lockwood was served with a letter from a firm of solicitors stating that he was 'suspended' from his position with the Corporation.

· Relatives and friends of the new Committee have been appointed to office staff positions without proper procedures following the termination or suspension of staff.

· Relatives and supporters have been made new participants of the CDEP [Community Development Employment Projects] over others on the waiting list.

· ATSIC appointed a grant controller in late February 2001.

· CDEP work activities have virtually come to a halt and a joint venture clothing business is in danger of collapse because of the dysfunction of the Corporation.

· There is no evidence of work undertaken by a consultant, Leezar Finance, being equivalent to the amounts billed to the Corporation.

· There are serious allegations of threats of physical violence, abuse and harassment being made to suspended staff by certain members of the Committee.

· There are allegations of certain Committee members filling private vehicles with fuel and allowing others to do so, without any accountability to the Corporation.

· The affairs of the Corporation are in significant disarray." 15 The show cause notice gave as grounds that may exist requiring the appointment of an administrator: that the appointment of an administrator was required, "in the interests of the Corporation, its members and creditors" and "in the public interest". In relation to the public interest, it suggested that, "the immediate appointment of an independent third party is required to restore public confidence in the operations of the Corporation". 16 After service of the show cause notice, the following events occurred: · By letter dated 6 April 2001, Mr Quinlan, Chairperson of the Committee, complained to the Acting Registrar that the period of time allowed to respond to the show cause notice was not a reasonable period within the meaning of s 71(1). This letter also included a request that the Corporation be provided with a copy of the "result of the findings of the recent Section 60 examination".

· On 9 April 2001, a senior investigator in the Office of the Registrar sent a memorandum to the Acting Registrar commenting on Mr Quinlan's response to the show cause notice and seeking directions concerning the Corporation's requests for an extension of time and for a copy of Mr Pippet's report. The Acting Registrar's handwritten note on the memorandum states his view that the s 60 report should not be provided and that an Administrator should be appointed.

· On 10 April 2001, the Acting Registrar sent a memorandum to the Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs ("Minister") seeking his approval, as required by s 71(3) of the Act, prior to appointing an Administrator.

· On 14 April 2001, the Minister approved the appointment of an administrator to manage the affairs of the Corporation.

· On 12 April 2001, the Acting Registrar received a letter from Mr Quinlan dated 10 April 2001 containing a detailed response to the show cause notice.

· On 17 April 2001, ATSIC was asked to comment on this response, which they did on the same day.

· On 18 April 2001, the Acting Registrar sent a further memorandum to the Minister, providing him with information regarding the second letter from Mr Quinlan and ATSIC's response. This further memorandum was noted by the Minister on 18 April 2001.

· On 19 April 2001, the applicant was appointed as Administrator of the Corporation pursuant to s 71 of the Act, effective from 26 April 2001.

· On 20 April 2001, the Corporation and the Committee were advised of the appointment of the Administrator.

The cross-claim 17 The amended cross-claim seeks an order under s 16 of the ADJR Act setting aside the appointment of Mr Jameson as administrator on the following three grounds: 1. contrary to s 71(1) of the Act, the show cause notice did not allow a "reasonable period" within to show cause why an administrator should not be appointed; 2. the appointment of the administrator was in breach of natural justice in that the Corporation was not afforded a sufficient opportunity to make representations as to why an administrator should not be appointed; 3. the appointment of the administrator was in breach of the rules of natural justice in that the Corporation was not afforded an opportunity to respond to comments made by ATSIC on 17 April 2001 in relation to the Corporation's letter of 10 April 2001. 18 Section 71(3) of the Act provides that the Registrar must not appoint an administrator to an incorporated Aboriginal association without the prior approval of the Minister. It is not in dispute between the parties that this requirement was satisfied.

the Show cause notice - did it allow a reasonable period?

Error in determining reasonable period 19 The cross-claimants submit that the issue of a valid notice under s 71(1) and the expiry of the time specified in the notice are prerequisites for the exercise of the power to appoint an administrator. They submit that the period specified in the show cause notice was not a reasonable period and that consequently there was no effective s 71(1) notice, the Registrar had no power to appoint an administrator and the appointment of Mr Jameson was invalid. 20 As counsel for Mr Jameson pointed out, an error in relation to the determination of a "reasonable period" cannot be a jurisdictional error because the Act itself gives the Registrar power to determine the reasonable period. If the Registrar errs by allowing a period that is not reasonable, the error is one within jurisdiction; Re Refugee Review Tribunal; ex parte Aala (2000) 176 ALR 219 per Hayne J at [163]. 21 The abuse of a discretionary power is an error of law and may be the subject of judicial review; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [124]; ADJR Act s 5(1)(f). The issue for this Court is to decide if the Registrar, in requiring a response to the show cause notice by noon on 9 April 2001, erred in law. The test can be expressed in a number of ways, for instance, whether it was reasonably open for the Registrar to set the period he did or whether the period was so manifestly unreasonable that no reasonable decision-maker could have made such a decision. Before addressing this question, it is necessary to decide what was the period allowed and to examine the circumstances in which that period was set.

Service of show cause notice 22 As noted above, there was dispute between the parties as to when the Corporation received the show cause notice. Ms Lilian Mosely, who claimed that she was appointed as public officer of the Corporation on 16 January 2001, stated in her affidavit sworn 1 June 2001, that she received the show cause notice "in the ordinary post" on Monday 2 April 2001. In his affidavit sworn 14 June 2001, Mr Fisk stated that the show cause notice was sent by mail and was also faxed to the Corporation. Exhibit 5 in these proceedings is a facsimile confirmation report confirming that the show cause notice was sent to the Corporation's facsimile number at 9.50 am on Friday 30 March 2001. The copy of the show cause notice exhibited to Ms Mosely at the time she swore her affidavit bore a date and time stamp consistent with Exhibit 5. However, Ms Mosely stated that she did not see the facsimile copy of the show cause notice until a member of the Corporation's administrative staff brought it to her attention on Tuesday 3 March 2001. On the basis of this evidence I am satisfied that the show cause notice was received by facsimile at the Corporation's premises on the morning of Friday 30March 2001. However, there still remains the question of whether service by facsimile is proper service within the meaning of s 71(1).

23 Section 71(1) requires the show cause notice to be served on the public officer of the Corporation. Although there has been some suggestion that Ms Mosely's appointment as public officer was not entirely regular, she claimed to have been appointed on 16 January 2001 and to have performed the duties of the public officer from that date until 3 May 2001. On the evidence before me it would seem that the show cause notice was required to be served on Ms Mosely.

24 Section 28A of the Acts Interpretation Act 1901 (Cth) provides that a document may be served on a natural person:

(i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document…

25 Because Ms Mosely admits that she received the letter on the morning of 2 April 2001, service of the show cause notice was effected, at the latest, by that time. The show cause notice specified that the Corporation was required to respond by noon on 9 April 2001. In the absence of any earlier effective form of service, the period specified in the show cause notice was from 2 to 9 April 2001, a period of seven days. 26 Section 28A does not purport to prescribe exclusive methods of service. In ASC v Bank Leumi Le-Israel (1996) 69 FCR 531, the Full Federal Court accepted that a notice under s 717 of the Corporations Law could be served by facsimile transmission. Lehane J, with whom Foster and Lockhart JJ agreed, accepted (at 550), "…that there is nothing in the nature of facsimile transmission which excludes it as a means of giving or serving a document. … I agree, however, with the view of the primary judge that time limits and obligations consequent on the giving of a notice are enlivened, when it is given by fax, only upon actual receipt of the notice in full and in legible form." 27 In Biotech International Ltd v Peptech Ltd (2000) 34 ASCR 443 at [39], Owen J noted that this position was consistent with the views of Young J in Howship Holdings Pty Ltd v Lesley (No 2) (1996) 41 NSWLR 542, that the document must come to the notice of the person for whom it was intended. His Honour went on to make the point that, "There would be little point in insisting on the fax being "full and legible" if, regardless of whether anyone actually saw it or tried to read it, mere arrival at the receiving facsimile machine completed the act of service." 28 Here the uncontradicted evidence of Ms Mosely was that the facsimile was not brought to her notice until 3 April 2001, a day after service by post was effected. Consequently the concept of service by facsimile cannot enlarge the seven day period referred to above. It is this period of seven days that is required by s 71(1) to be "a reasonable period".

Was a period of seven days so unreasonable as to constitute an error of law? 29 By providing for the Registrar to specify the "reasonable period" within which the Corporation was to respond to the show cause notice, s 71(1) gives the Registrar the discretion to determine what period is reasonable in the circumstances. The circumstances in which the Acting Registrar made the decision are outlined in [9]-[15] above. The reports of dispute and mismanagement within the Corporation and the issues of concern identified by Mr Pippet (set out in the show cause notice) show that the Acting Registrar had grounds for genuine concern about the future of the Corporation. Mr Plowman knew that that ATSIC had been sufficiently concerned to appoint a grant controller. There were allegations of physical violence, abuse and harassment, fraudulent use of the Corporation's property and resources, theft and corruption. In particular he had been told that the CDEP work activities had "virtually come to a halt", that the clothing business was "in danger of collapse because of the dysfunction of the Corporation" and the affairs of the Corporation were in "significant disarray". 30 Counsel for the cross-claimants referred to the extensive nature of the particulars given by the Acting Registrar in the show cause notice. He relied on the evidence of Ms Mosely in submitting that the task of responding to those allegations involved organising and understanding the Corporation's records over a period of some months. While accepting that it may have been a difficult task to respond to the show cause notice within the allotted time, it should be noted that, in fact, a five-page letter from Mr Quinlan dated 10 April 2001 did address the concerns raised in the show cause notice. This letter was considered by the Registrar (and, indirectly, by the Minister) by 18 April 2001, the day before the appointment of Mr Jameson. 31 It is doubtful that the Corporation's difficulties to which Ms Mosely deposes are relevant to the exercise of the Acting Registrar's discretion to determine a reasonable period given that he could not be aware of these at the relevant time. Brennan J discussed this issue in Kioa v West (1985) 159 CLR 550. Although his Honour was speaking of the requirements of natural justice, his comments are relevant to the determination of a reasonable period under s 71(1) of the Act. His Honour commented at 627: "What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly." 32 Although seven days is a very short time, given the whole of the circumstances known to the Acting Registrar, I am of the opinion that it was a reasonable period. Even if I am wrong on that point, I find that that it was reasonably open to the Acting Registrar to allow seven days for a response. It was certainly not so unreasonable that no reasonable decision-maker could have set such a period.

The time allowed for response 33 Section 5(1)(a) of the ADJR Act provides that a breach of the rules of natural justice in the making of a decision is a ground of review. The allegations contained in the cross-claim in this regard are set out in [17] above. In part, the first of the two allegations of a breach of natural justice covers the same ground as has already been dealt with in relation to whether the "reasonable period" requirement of s 71(1) has been satisfied. There is no question of the respondents having been denied a right to be heard. Their complaint is that the period allowed to them for this purpose was not sufficient to meet the requirements of natural justice. In response to this claim, it was submitted for the Registrar and for Mr Jameson that s 71(1) constitutes a code. It was said that this follows from, among other things, the fact that the section evinces an intention to exclude procedural natural justice by specifically providing that the Registrar must allow a reasonable time for a corporation to respond. Whether or not this is so, it is difficult to see how a period that is reasonable within s 71(1) could at the same time be so short as to constitute a failure to provide natural justice. 34 It is well established that the urgency of a decision may limit the period in which a person may have a right to be heard; Durayappah v Fernando [1967] 2 AC 337 at 346; Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241. In Re Refugee Tribunal; ex Parte Aala (above), Gaudron and Gummow JJ commented at [60]: "… it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case." 35 The circumstances of this case (summarised in [29] above) show that there was considerable urgency surrounding the making of the decision whether to appoint an administrator. Those circumstances support a conclusion that there was no denial of natural justice in the period allowed for comment by the Committee.

Opportunity to respond 36 The respondents claim that the Registrar's failure to provide them with a copy of Mr Pippet's report denied them an opportunity to make representations as to why an administrator should not be appointed. The answer to this complaint is simple. The salient points were set out in the show cause notice which identified eight provisions of the Act and the Corporation's rules which, it was alleged, had been breached. Details relevant to each allegation were provided. The respondents given sufficient notice of the issues raised in Mr Pippet's report. Natural justice requires that critical issues be drawn to the attention of the respondents; Kioa v West (above) per Mason J at 587, per Brennan J at 629; see also Pilbara Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [70]. This was done by means of the show cause notice. It was not necessary that the actual report be provided. 37 The Committee also claim that they should have been given an opportunity to review ATSIC's comments of 17 April 2001 relating to Mr Quinlan's letter dated 10 April 2001; see [16] above. ATSIC had only made comments on the responses made in Mr Quinlan's letter to allegations in the show cause notice. It's comments did not traverse new ground. My comments as to why there was no obligation to provide Mr Pippet's report to the Committee (see [36] above) apply equally to the ATSIC letter.

Discretionary relief 38 I have concluded for the above reasons that the challenge to the appointment of Mr Jameson as administrator of the Corporation made in the cross-claim has not been substantiated and that the cross-claim should be dismissed. However, in case I am wrong in this conclusion, there are a number of factors that lead me to conclude that, in the exercise of my discretion, I should refuse the relief sought in the cross-claim. 39 The Court's discretion in granting relief under s 16 of the ADJR Act is well established; Lamb v Moss (1983) 49 ALR 533 at 549. It is to be exercised taking into account all the circumstances surrounding the matter before the Court including those personal to the applicant for relief and those relevant to the consequences of granting the relief sought. Relevant to the latter consideration is the fact that at no stage in this proceeding have the cross-claimants pointed to any factor that could cast doubt on the wisdom of the decision to appoint an administrator to the Corporation. It would seem that the affairs of the Corporation were in disarray and that the financial viability of its enterprises was in jeopardy. That alone would justify the appointment of an administrator as being in the interest of the members and creditors of the Corporation as well as in the interest of the public. 40 Mr Jameson has now been in position as administrator since 26 April 2001. While I have no doubt that his management of the Corporation's affairs has been affected by the challenge to his appointment, it is reasonable to assume that he has taken matters in hand and is in the process of regularising the Corporation's affairs. It is inevitable that the decisions involved in this process will affect third parties. In those circumstances the delay by the cross-claimants in lodging their claim is also relevant. It would not be in the interests of the Corporation to interfere with this process.

orders 41 As indicated above, I have decided to dismiss the cross-claim. As this effectively deals with the only challenge to the appointment of Mr Jameson as administrator of the Corporation, I have considered whether it is necessary to make the declarations sought by the applicant. Declarations are discretionary remedies and should be used sparingly and generally only when they are the only effective form of relief. As I understand the situation, the applicant only sought declarations because, at that time, the cross-claimants were denying the validity of his appointment, obstructing him in the discharge of his duty and maintaining that they still held their positions on the Committee. As the dismissal of the cross-claim confirms the validity of Mr Jameson's appointment, it is my opinion that the administrator's position is secured without the necessity for the declarations set out in the application. 42 In addition to the declarations, the applicant sought orders against the second respondents for delivery up to the applicant of the first respondent's books, records and property. These orders, however, may well have been overtaken by the extensive interlocutory orders that I made on 3 May 2001 and 18 May 2001. Those orders should be revisited now with the view to making permanent the orders still required and dispensing with any not still required. I therefore propose not to made the order sought in the application but to direct the applicant to file and serve on the second respondents, by 24 August 2001, short minutes of order to give effect to these reasons. 43 Finally the costs of the applicant/first cross-respondent and the second cross-respondent in this proceeding, including reserved costs, shall be paid by the cross-claimants. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 13 August 2001 Counsel for the Applicant / First Cross-Respondent: Mr G Lucarelli

Solicitor for the Applicant / First Cross Respondent: Gadens Lawyers

Counsel for the Second Respondents / Cross-Claimants (excluding Gordon Atkinson): Mr G R Kennett

Solicitor for the Second Respondents / Cross Claimants (excluding Gordon Atkinson): Velik Solicitors

Counsel for the Second Cross-Respondent Mr S Gageler SC with Mr S Lloyd

Solicitor for the Second Cross-Respondent Australian Government Solicitor

Date of Hearing: 22 June 2001

Date of Judgment: 13 August 2001