Re referral by Registrar, Aboriginal Land Rights Act 1983 under s 200 of the Aboriginal Land Rights Act 1983, concerning Mr Anderson, a Councillor [2023] NSWCATOD 67

Introduction

1. By application filed 15 March 2023 (present application) the Registrar, Aboriginal Land Rights Act 1983 (NSW) (Applicant) sought orders: 1. That Troy Anderson (Respondent) be reprimanded pursuant to s 207(1)(a) of the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act); 2. That the Respondent pay a pecuniary penalty pursuant to s 207(1)(h) of the ALR Act; 3. That the Respondent reimburse the Jali Local Aboriginal Land Council (JLALC) for the loss of the Unauthorised Transfer less any amount paid by Hinton to JLALC pursuant to the Compensation Order - pursuant to s 207(1)(i) of the ALR Act; 4. That the Respondent be disqualified from holding office in any Aboriginal Land Council for a period of up to 5 years pursuant to s 207(1)(g) of the ALR Act; and 5. That the Tribunal otherwise make any orders which are deemed fit.
2. The Respondent resisted the Applicant's application and, on 24 March 2023, sought the summary dismissal of the Applicant's application.
3. Pursuant to the directions made by the Tribunal on 24 March 2023, on 17 April 2023 the Respondent filed submissions in support of his summary dismissal application. On 21 April 2023, pursuant to the Tribunal's directions, the Applicant filed submissions in opposition to the Respondent's summary dismissal application.
4. The matter was heard on 24 April 2023. The Applicant was represented by Counsel. By leave pursuant to s 45(1)(b)(i) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Mr Oshlack of the Indigenous Justice Advocacy Network was granted leave to represent the Respondent. At the conclusion of the hearing on 24 April 2023, the Tribunal reserved its decision.
5. These are the reasons for the Tribunal's dismissal of the Respondent's application for summary dismissal pursuant to s 55(1)(b) of the CAT Act of the Applicant's claim. As contemplated by the parties, having rejected the summary dismissal application, the Tribunal will proceed to hear and determine the Applicant's referral application.

Background

1. In support of the present application, the Applicant filed "Reasons in support for urgent application" signed by the Interim Registrar, Aboriginal Land Rights Act 1983 (NSW) (Interim Registrar). The asserted urgency of the application was addressed by consent orders and undertakings given to and accepted by the Tribunal on 24 March 2023. The Respondent's summary dismissal application was then listed for hearing.
2. A "Statement of Reasons" attached to the present application pursuant to s 200 of the ALR Act stated that the Respondent: "allegedly, without approval or authority from the Board or members of Jali Local Aboriginal Land Council (JLALC), authorised and effected a transfer of funds in the sum of $160,000 from the bank account of JLALC to the bank account of a third party, for the payment of an investment that is not permitted by the Act or Aboriginal Land Rights Regulation 2020 (NSW) (ALRR). Mr Anderson conducted the above alleged actions whilst he was in his position as the JLALC Chairperson. In doing so, Mr Anderson has breached sections 52(5), 152(4), 183(1) of the Act (which constitute misconduct as defined in s 176(1) of the Act), regulation 101 of the ALRR, the prescribed Code of Conduct for Local Aboriginal Land Councils (Schedule 3 of the ALRR), model rules for Local Aboriginal Land Councils (Schedule 1 of the ALRR) and has engaged in serious misconduct."
3. The Statement of Reasons concluded with the opinion of the Interim Registrar that "the seriousness of Mr Anderson's alleged actions warrants the referral of this matter to NCAT, which is conferred with higher and broader powers, to determine the appropriate disciplinary actions and orders".
4. Also attached to the application was a "Report for NSW Civil and Administrative Tribunal" dated on or about 15 March 2023. The executive summary of the report reiterated the substance of the Interim Registrar's Statement of Reasons for the present application.
5. Under the heading "Facts", a number of background matters were recorded. The Tribunal does not understand any of the following matters to be controversial for present purposes. The "facts" recorded in the report were: "2.1 Anderson was elected to the Board of JLALC in 2013, re-elected in 2015, and served as a Board Member until 9 October 2019 when he was not re-elected. 2.2 As required by s 65 of the ALR Act, Anderson participated in mandatory board governance training on or around 23 November 2013 and 4 March 2016. 2.3 At all material times, Anderson was the Chairperson of JLALC. As the Chairperson of JLALC Anderson had a duty to uphold and abide by the Code of Conduct and Model Rules. 2.4 JLALC's assets are to be managed in accordance with JLALC's Community Land and Business Plan 2016-2020 (CLBP) and the Act. A copy of CLBP is annexed at Appendix C. 2.5 On or around 18 July 2019, it is alleged that Mr Cedric Hinton (Hinton) prepared and presented an investment proposal (investment proposal) to Anderson and former Chief Executive Officer of JLALC Mikael Smith (Smith). The investment proposal set out an investment scheme to "finance a business transaction in Germany" and stated that for an investment of 100,000 Euros JLALC would yield a return of approximately 1,500,000 Euros payable within 40 to 50 days. A copy of the investment proposal is annexed at Appendix D. 2.6 On or about 23 July 2019, Anderson, in his position as the Chairperson of JLALC, had authority to access and transfer funds from JLALC Community Fee Saver Account, No. 477665616 (JLALC Saver Account). A copy of JLALC Board Meeting Minutes dated 20 November 2017 authorising Anderson to become a bank signatory for JLALC are annexed at Appendix E. 2.7 On or about 23 July 2019, it is alleged that Smith and Anderson approved and directed a staff member to effect an electronic fund transfer of $160,000 from the JLALC Saver Account to the account of Hinton, account No. 40782895 (unauthorised transfer). 2.8 Annexed at Appendix F is a copy of the Account Payment requisition form dated 23 July 2019 issued by the JLALC for the electric fund transfer of $160,000 from the holding fund of JLALC to Hinton for payment of investment in accordance with the Investment Proposal authorised and signed by Smith and Anderson. 2.9 It is alleged that the unauthorised transfer was effected and directed by Smith and Anderson without authority from the Board or members of the JLALC which is required by sections 52(5), 152(4), and 183(1) of the Act and regulation 101, the Code of Conduct and Model Rules under the ALRR. 2.10 Annexed at Appendix G is a copy of the NAB connect direct credit report dated 23 July 2019 showing the transfer of $160,000 from the JLALC saver account and a credit to the account of Hinton with BSB 012 528 account No 40782895, authorised by Smith. 2.11 The unauthorised transfer involved a significant amount of funds that belong to JLALC. The amount transferred was in excess of the amount of annual funding allocation from the NSW Aboriginal Land Council (NSWALC). A copy of the 2019-2020 funding agreement between the NSWALC and JLALC is annexed at Appendix H. 2.12 On or around 25 October 2019, it is alleged that Smith had a conversation with Lenkunyar Roberts, current Chairperson of JLALC. In that conversation Smith allegedly said that he, Anderson and former JLALC Board Member Paul Smith (now deceased) approved an offshore investment on behalf of the JLALC without the JLALC Board of members' awareness or approval to fund a proposed new JLALC housing development. 2.13 On or about 14 May 2020 the Registrar wrote a letter to Anderson advising him that she was considering whether to refer to the NSW Civil and Administrative Tribunal allegations of misconduct against him (May 2020 letter). A copy of the May 2020 letter is annexed at Appendix I. 2.14 On or about 22 May 2020, Anderson responded to the May 2020 letter in writing. A copy of the letter from Anderson dated 22 May 2020 is annexed at Appendix J. 2.15 On or about 27 February 2020, Hinton was charged with the offence of fraud, for the total amount of $160,000. The criminal proceedings against Hinton (proceedings) were listed before Ballina Local Court on 8 February 2021 when Hinton entered a plea of guilty. 2.16 On or about 31 March 2021, Hinton was sentenced before Ballina Local Court to a two (2) year custodial sentence, to be served in the community by way of Intensive Custodial Order. The Court also made an order for Hinton to pay JLALC the sum of $100,000 by way of compensation by 28 April 2021 (compensation order). Hinton subsequently submitted a payment plan to the Court for approval. The Registrar has been advised that this payment plan was approved by the Court. A copy of the Notice to Payee issued to JLALC setting out the details of the Compensation Order dated 31 March 2021 is annexed at Appendix K. 2.17 To the Registrar's knowledge, at the time of drafting this report, no funds have been recovered from Smith, Anderson or Hinton to date and the JLALC has incurred a loss in the amount of $160,000, as a result of the Unauthorised Transfer. 2.18 On or about 21 April 2021, the Registrar referred the allegations against Anderson (as outlined above) to the Tribunal pursuant to what was then s 181K(4) of the Act (which has since been repealed). 2.19 On or about 11 May 2021, the Tribunal determined pursuant to what was then s 199A of the Act (which has since been repealed) to conduct proceedings into the referred matter and the proceedings were assigned case number 2021/00111135 by the Tribunal. 2.20 On or about 10 August 2021, the Registrar made an application to the Tribunal for the proceedings to be dismissed on the basis of NCAT's determination in two prior cases (Registrar, Aboriginal Land Rights Act 1983 v Kirk [2020] NSWCATOD 43 and Registrar, Aboriginal Land Rights Act 1983 v Boota [2020] NSWCATOD 69) that it does not have the power to sanction a "former officer" for misconduct under previous s 211A of the Act (which has since been repealed). The Tribunal made orders dismissing those proceedings on or about 16 August 2021. 2.21 Subsequently in September 2022, Anderson was again re-elected to the Board of JLALC and is currently serving as the Deputy Chairperson. Anderson is also currently an authorised bank signatory for JLALC. A copy of JLALC Board Meeting Minutes dated 19 January 2023 authorising Anderson to become a bank signatory for JLALC are annexed at Appendix L. 2.22 On or about 31 January 2023 the Registrar wrote a letter to Anderson advising him that she was considering whether to again refer to the Tribunal allegations of misconduct as outlined above against him (January 2023 letter). A copy of the January 2023 letter is annexed at Appendix M. 2.23 On or about 15 February 2023, Anderson responded to the January 2023 letter in writing. A copy of the letter from Anderson dated 15 February 2023 is annexed at Appendix N."

Principles governing the Respondent's application

1. The principles governing the Respondent's application for summary dismissal of the Applicant's application are not in doubt, and require only brief reiteration. The authorities establish that a party should only be denied the opportunity to place a case before a Court or Tribunal in the ordinary way, and after taking advantage of interlocutory processes, where there is a high degree of certainty about the ultimate outcome of the proceedings if the proceedings were to proceed to a hearing (Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937; Agar v Hyde [2000] HCA 41; 74 ALJR 1219; Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28; Shaw v New South Wales [2012] NSWCA 102).
2. The application is determined taking the Applicant's case at its highest. In this application, as opposed to the position if this application is refused and the matter proceeds to be determined on its merits, the Respondent must accept the truth of all allegations of fact made in the Applicant's application and that the inferences sought to be drawn or findings made in reliance upon those facts are reasonably capable of being established (Agius v New South Wales [2001] NSWCA 371). This requirement is not controversial for present purposes. As will be seen, the Respondent's application does not involve any dispute with respect to the facts upon which the present application is based.
3. The relief sought by the Respondent is not precluded by the fact that, to make good its claim, extensive argument is, or may be necessary to establish that the Applicant's claim is so clearly untenable that it cannot possibly succeed (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69).
4. The authorities establish that "exceptional caution" is necessary where it is apparent that the ultimate outcome of proceedings turns upon the resolution of some disputed issue or issues of fact (Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57), or where questions of credit are involved (Spellson v George [1992] 26 NSWLR 666), and that if there is a "real question either of fact or of law" an application for summary dismissal must fail (Day v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1).
5. The Respondent does not need to demonstrate that the present application is "hopeless" or "bound to fail", it being sufficient to demonstrate that it has no reasonable prospects of success (Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28).

Whether the present application is precluded by res judicata estoppel or issue estoppel

1. The Respondent submitted (5) that the "characterisation of these proceedings would strictly be described as Res Judicata issue estoppel as against Issue estoppel". In support of this ground of his application, the Respondent submitted (7), accurately, that the former proceedings were "between the same parties with virtually the same pleadings and evidence" and were dismissed pursuant to s 55(1)(a) of the CAT Act.
2. The Respondent relied on the statement by Kiefel CJ, Bell and Gageler JJ in Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44 at [51] (Clayton) that ""on the merits" in the sense of "presentation of evidence and argument and the application of the law to the facts in a reasoned way" is not necessary for res judicata. Res judicata can arise due to a default judgment or a judgment by consent".
3. The Respondent also relied (10) on the further passage from Clayton: "51 Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness … it operates … as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law. Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment … The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of Res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument."

Whether the present application is oppressive or an abuse or process

1. The Respondent's submissions in support of this ground were cogently expressed in the following terms (6): "The proceedings at its very heart is an oppressive attempt to relitigate a former proceeding 2021/00111135."
2. The Respondent further, and vigorously submitted (18) that the application should be dismissed "as an abuse of process and can only be described as a poorly drafted attempt to relitigate a matter that had already been dismissed".
3. In oral submissions the Respondent's representative vigorously agitated criticisms of the conduct of the Applicant in making the first application, having regard to the 2020 decisions of the Tribunal in proceedings commenced by the Applicant against other former councillors. Inferentially, it was submitted that commencing the present application by reason of either a fortuitous change in the ALR Act in November 2022, or, more relevantly, the Respondent fortuitously again becoming an officer of the JLALC, should not be permitted, being oppressive conduct which was thereby an abuse of the processes of the Tribunal.
4. The Respondent's representative submitted, and the Tribunal accepts, that the pendency of these proceedings would be distressing for the Respondent, particularly in view of his letter to the Applicant which is found at Tab N of the present application and, the Tribunal also accepts, the likely stress which the pendency of these proceedings is causing for the members of the JLALC and the community it serves. As observed earlier, if the Respondent had not again become an officer of the JLALC, and the present application had been brought solely in reliance upon the November 2022 amendment of the ALR Act to bring "former officers" within the ambit of its regime of protective measures, this ground may have been attractive.
5. Any criticism which might properly attach to the circumstances in which the Applicant commenced the first application cannot advance this ground in circumstances where the concern which motivated the first application has been revived by the Respondent's re-election as an officer of the JLALC.
6. The Tribunal is not persuaded that the present application is oppressive or an abuse of the processes of the Tribunal.

Conclusion

1. Neither of the grounds upon which the Respondent's summary dismissal application was based having been made out; the application must be refused. It is important however that the parties, and particularly the Respondent, are clear that rejection of this application does not imply that the application itself will, or should be successful, either in terms of establishment of any of the grounds upon which it is based or, if such grounds are made out, whether any protective orders should, on the facts as found, be imposed.
2. As the authorities to which the Tribunal has referred make clear, and the submissions of the Respondent's representative and the Applicant's Counsel make clear, the power to summarily dismiss proceedings, and thus deprive a party of "a day in court" are limited, and the power to summarily dismiss is accordingly exercised sparingly.
3. Although any such application would be governed by the provisions of s 60 of the CAT Act, and a party seeking costs would need to establish special circumstances, and it is difficult to envisage that either party could do so, the Tribunal will make directions which enable a party seeking an order for costs to do so.
4. On 24 March 2023, albeit on an interlocutory basis, the parties sensibly reached an agreement with respect to matters which would assume significance if the proceedings are continued. It may be that, and with respect to them, the parties should attempt to resolve the proceedings, potentially by further pursuing the kind of interim resolution which they achieved on 24 March 2023.

Orders 1. Pursuant to s 45(1)(b)(i) of the Civil and Administrative Tribunal Act 2013 (NSW), the Respondent has leave to be represented in the proceedings by Mr Oshlack of the Indigenous Justice Advocacy Network. 2. The application for summary dismissal of the application filed 15 March 2023 is refused. 3. The matter is adjourned to a date to be fixed for further directions. 4. Any party seeking an order for costs file and serve written submissions not exceeding 5 pages in length within 21 days of the date of the Tribunal's decision. 5. Any party resisting an application for costs file and serve written submissions not exceeding 5 pages in length within 42 days of the Tribunal's decision. 6. Any party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of any costs application include in any written submissions filed pursuant to orders 4 and 5 of these orders submissions in opposition to the making of such order.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2023