Jameson v Guri Wa Ngundagar Aboriginal Corporation

(IN HIS CAPACITY AS ADMINISTRATOR OF THE GURI WA NGUNDAGAR ABORIGINAL CORPORATION)

REASONS FOR JUDGMENT 1 By letter dated 19 April 2001, the applicant, Barry Jameson, was appointed as Administrator of the Guri Wa Ngundagar Aboriginal Corporation ("the Corporation"), effective from 26 April 2001. The appointment was made by the Acting Registrar of Aboriginal Corporations, Mr Colin Plowman, pursuant to s 7l of the Aboriginal Councils and Associations Act 1976 (Cth) ("the Act"). Section 73 of that Act provides that on the appointment of the administrator all the offices of the members of the Governing Committee (as defined in the Act) become vacant. The second respondents in this proceeding are persons who, prior to the appointment of the administrator constituted the Governing Committee of the Corporation. 2 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. In these circumstances, Mr Jameson seeks a declaration that he was validly appointed as administrator of the Corporation as well as certain orders for the delivery to him of the Corporation's books, records and other property. 3 The consideration of the primary application is for another day. The matter before me today is a claim for interlocutory relief whereby the applicant seeks certain asset preservation orders restraining the second respondents from dealing with the Corporation's property and requiring them to deliver up any of the property of the Corporation which is held by them, their servants, or agents to the applicant. 4 The written evidence presented by the applicant consisted of an affidavit sworn by the applicant on 3 May 2001. Mr Jameson also gave sworn evidence in Court today. In his affidavit, Mr Jameson described the difficulties he had encountered in attempting to take control of the Corporation and its property. He also deposed as to his concerns that the property of the Corporation might be dissipated should the orders sought not be granted. It is perhaps understandable that much of the evidence is in a very unsatisfactory state. There is considerable hearsay in the affidavit and, moreover, the persons whose words are being quoted are not identified. There may be good reasons for this approach given the urgency of the application. Be that as it may, I do not think that I am in a position to attach much weight to comments made about individuals included in the group of second respondents.I do accept, however, that the applicant has genuine concerns that the property of the Corporation might be dissipated if the orders sought are not made. 5 It is trite law that asset preservation orders should not be made lightly. I am conscious of the view of the majority of the High Court in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [50], that a high degree of caution is required on the part of the court invited to make an order of that kind. It is in the nature of such orders that the degree of caution must often be assessed in the context of an urgent application such as this and consequently on the consideration of less than perfect evidence. 6 At the hearing today there was much discussion about the status quo. In my opinion the true nature of the status quo has been somewhat obscured by the events occurring prior to the commencement of this proceeding. Had the second respondent sought to challenge the appointment of Mr Jameson in the Court rather than by physically obstructing him, the position may have been clearer. As stated at par [1] above, the status quo is that there is in existence an appointment made which is prima facie in accordance with the Act and, as required by s 71(3) of the Act, it has the prior approval of the Minister. No legal challenge to the appointment of the administrator has been initiated by any person. In my opinion another important aspect of this case is that the property which is sought to be preserved is not the personal property of either the applicant or the second respondents, but the property of the Corporation which is entrusted by the Act to persons appointed under it. Under the Act, the applicant is that person. 7 The applicant for an asset preservation order must show that he or she has a good arguable case (Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 49) or a "sufficiently realistic prospect of success in the proceedings" (Pearce v Waterhouse [1986] VR 603 at 605). In light of what I have said in par [6] above, it is my opinion that this is the case here. 8 In a case such as this, the focus is on preventing abuse or frustration of the Court's process. It must be shown that, without the order, there is a real risk that a final judgment in favour of the party seeking the order would be a futility. To the extent possible, given the urgency of this motion, it is my opinion that the applicant has shown this to be the case. Finally, the balance of convenience must be considered. The orders that the applicant seeks would involve the preservation of the Corporation's property and its management by the administrator in accordance with his duty as administrator. In my opinion, the balance of convenience dictates that this be so. I would expect that, in the circumstances of a challenge to his appointment, a prudent administrator would be circumspect in his dealings with the property until that challenge is resolved. 9 I earlier indicated my view to the parties and, as requested, counsel for the applicant and the second respondents have prepared and handed to me short minutes of order in accordance with that view. I therefore propose to make those orders which are as follows: 1. Upon the applicant by his counsel having given to the Court the usual undertaking as to damages, until further order each of the second respondents by themselves or by their servants or agents be restrained from dealing with, alienating, encumbering, selling or otherwise disposing of any of the property specified in Schedule "B" to the applicant's notice of motion filed in Court on 3 May 2001. 2. Subject to the next order, upon the applicant by his counsel having given to the Court the usual undertaking as to damages, until further order each of the second respondents forthwith deliver up to the applicant or his representative at the premises of the Guri Wa Ngundagar Aboriginal Corporation at 2/5 Prince Street, South Kempsey, any of the property specified in Schedule "B" to the applicant's notice of motion filed in Court on 3 May 2001 held by any of them (or held by any of their servants or agents). 3. Nothing in Order 2 requires any person to deliver to the said premises at 2/5 Prince Street South Kempsey, any property which is ordinarily used in, or situate at the premises of, any of the following: (a) Wearwulf Sportswear Pty Ltd at 17-23 South Street, South Kempsey, NSW: (b) the business trading or known as "Native Plant & Wildflower Nursery" at Stuarts Point, NSW; or (c) the business or concern known as "Corangula Farm", at Corangula, NSW. 4. Subject to Order 5, that until further order, Barry Charles Jameson, his servants or agents, be given sole access and possession of premises known as 2/5 Prince Street, South Kempsey and of all other premises owned, leased or occupied by the Guri Wa Ngundagar Aboriginal Corporation, to the extent only that Guri Wa Ngundagar Aboriginal Corporation has rights to sole access and possession of such premises. 5. Nothing in Order 4: (a) prevents any employee of the Guri Wa Ngundagar Aboriginal Corporation from having his or her usual access to the premises at 2/5 Prince Street, South Kempsey for the ordinary purposes of his or her ordinary employment; or (b) prevents any of the second respondents (or any of their legal representatives) from having reasonable access to the said premises for the purposes of preparing their defence to these proceedings, or for such other purpose as the applicant permits, such permission not to be unreasonably withheld. 6. Costs be reserved. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 15 May 2001 Counsel for the Applicant: Mr G Lucarelli

Solicitor for the Applicant: Gadens, Lawyers

Counsel for the Respondent: Mr G Kennett

Solicitor for the Respondent: Velik Solicitors

Solicitor for the Registrar of Aboriginal Corporations Mr M Murray

Date of Hearing: 3 May 2001

Date of Judgment: 3 May 2001