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[1999] FCA 521
Federal Court of Australia
1999-04-29
Original judgment source is linked above.
REASONS FOR DECISION 1 This is an application under s 63(1) of the Aboriginal Councils and Associations Act 1976 as amended ("the Act") for orders that:
Background 6 Murnkurni was incorporated under the Act on 15 March 1990. It was set up by a group of Aboriginal women in the town of Norseman in Western Australia. Norseman has an Aboriginal population of about 150 people, about half of whom are female. The objects of Murnkurni include the following: · to establish and maintain an Aboriginal women's resource centre at Norseman for the use of the Aboriginal community; · to help the development of Aboriginal industry and commerce; · to fund its activities and foster its financial independence from government and other agencies; · to encourage the development of knowledge of Aboriginal art, culture, history and custom through the establishment of an enterprise-making, selling and promoting Aboriginal art and artefacts; · to provide accurate up-to-date information and a supportive environment for Aboriginal women; · to raise awareness within the Aboriginal community about issues of concern to women and to actively encourage the participation of women in workshops and forums organised to discuss these issues; · to create a network linking together Aboriginal women, both individually and as members of groups, within Western Australia and extending this network to include Aboriginal women in other parts of Australia; · to educate the white community about Aboriginal culture; · to provide a valuable source of information and advice for government to consult when making decisions that directly affect the lives of Aboriginal women and their families; and · to receive and spend grants of money from the Government of the Commonwealth or of the State or from other sources.
7 The activities of the Association are stated to be carried out at Norseman, Dundas Shire, Western Australia. The application for incorporation named five people as constituting the committee of the Association. These names included Maureen Young, Phyllis Wicker, Bonnie Smith, Wendy Hayden and the name of the former chairperson who has since died. 8 The Rules of the Association state that the members shall be those adult Aboriginal women who are permanently resident in the Dundas Shire who apply to the committee and who the committee decides to admit to membership. The Rules also made provisions for the way in which general meetings are to be conducted; the election of members of the committee by a vote of the members at an annual general meeting; meetings and proceedings of the committee including that the committee shall meet not less than four times per year; the appointment of a public officer; that the accounts of the Association shall be audited annually; the giving of notices to members; and for arbitration in the event of disputes between members. 9 Murnkurni obtained a grant from ATSIC which enabled it to purchase a community hall at Norseman. The hall was the focus of Murnkurni's activities, and represents Murnkurni's only significant asset.
The prior winding up application 10 On 27 October 1994 the Registrar of Aboriginal Corporations instituted a previous application to wind up the Murnkurni Women's Aboriginal Corporation. The grounds on which that prior application were based included that it would in the public interest to do so; that the Corporation was insolvent; and that it would be just and equitable to make a winding up order. Those grounds were based on a report by Mr P Beresford. Mr Beresford was an examiner appointed by the Registrar pursuant to s 60 of the Act. On 14 February 1995 the Federal Court ordered that the Respondent be wound up. There was no appearance on behalf of the respondent at the hearing. The Murnkurni Women's Aboriginal Corporation then applied to have the winding up order set aside and also to stay the winding up order pending an appeal against it. On 11 August 1995, his Honour Justice Nicholson made an order that the winding up order be set aside. On 8 July 1996 a Consent Order was made that the applicant's application be dismissed. There was no decision made by the Court on the merits of the original application for a winding up order.
Witnesses for the applicant (a) Noureddine Bouhafs 11 The primary witness for the applicant was the Registrar of Aboriginal Corporations himself, Mr Noureddine Bouhafs. In an affidavit dated 23 April 1998, Mr Bouhafs alleges that subsequent to the date of the discontinuance of the first winding up proceeding, Murnkurni has not conducted any valid annual general meeting or special general meeting; Murnkurni has failed to conduct a valid committee meeting; it has failed to compile or maintain a register of members in accordance with s 58 of the Act; it has failed to notify his office of the Change of Public Officer in accordance with s 57 of the Act; it has failed to lodge a Committee's report or an examiner's report for the years ended 30 June 1994 to the date of the affidavit; and disagreement has developed between persons purporting to be members of the Corporation as to who are entitled to and can control it. Mr Bouhafs states in that affidavit that the disagreement is represented by the interests of two factions which can be described as "the Schultz faction" and "the Wicker faction". The Wicker faction believes a winding up of the corporation should proceed as it is effectively inactive, with its only significant asset, a hall in Norseman, not being used. The Schultz faction disagrees with these propositions. Both factions have purported to hold annual general meetings and have purported to elect governing committees. 12 Mr Bouhafs goes on to state in his affidavit that since the discontinuance of the first winding-up application the main funding body of Murnkurni, namely, ATSIC, appointed a grant controller who oversaw the disbursement of all ATSIC grant funds since that date to the present. On 26 March 1998, ATSIC decided that the funding for Murnkurni would be withdrawn and allocated to other Aboriginal organisations, as Murnkurni is allegedly dysfunctional. 13 Mr Bouhafs states that the Corporation's one significant asset, the hall, and all other assets, have been acquired primarily with funds provided by the taxpayer through grants from government funding bodies. Without further funding Murnkurni has been unable, since 1995, to independently raise sufficient funds to continue to maintain the hall. He states that as a result of a failure to maintain that asset and as a result of the factional dispute between persons in control of the asset, the hall has not been fully utilised for the benefit of the community as a whole and will be at the risk of loss if insurance is not maintained. Further, some plant and equipment has already been lost as a result of the failure to maintain the hall and obtain appropriate insurance. 14 Further, Mr Bouhafs states that as a public statutory body Murnkurni has certain obligations to fulfil in terms of maintaining its records and the filing of documents with the Registrar's office, and has failed to do so since September 1995. Mr Bouhafs states that the factional problems presently besetting Murnkurni would indicate that there is little likelihood of it being in a position to overcome in the future its failure to comply with its statutory obligations. Mr Bouhafs states that in the circumstances it is in the public interest for Murnkurni to be wound up and after payment of any debts for its assets to be transferred to another suitable Aboriginal organisation in the area which can provide a wider benefit for the Aboriginal community. 15 In relation to his allegation that Murnkurni now has fewer than five members, Mr Bouhafs states that five persons signed the application for incorporation. One of those people, Wendy Hayden, is no longer a permanent resident of the Dundas Shire and thereby has lost membership. The former chairperson has died and as a result from the original membership of five there are now only three members. Mr Bouhafs states that the rules of the corporation provide that members of Murnkurni's committee must decide whether to admit people to membership. A register of members is to be kept by the public officer. Mr Bouhafs states that he has perused the minutes of the meeting of the corporation exhibited to an affidavit of Georgina Schultz filed in the first wind-up proceeding. None of the minutes disclose a consideration of applications for membership let alone resolutions to admit persons to membership. There is no documentary support for any person other than the three original applicants being a member save by implication that persons present at general meetings must therefore have been members. 16 Mr Bouhafs states that both the Schultz faction and the Wicker faction have provided lists of names as being the lists of members of Murnkurni. The lists of names are not consistent with lists of names recorded in the previous minutes of the committee. He states that merely looking at the names of the attendees at committee meetings may not be regarded necessarily as a correct reflection of the membership of Murnkurni. There is no valid register of members and hasn't been since incorporation. In November 1997 each faction drew up a list of members and there is no corroborative evidence of the admission to membership of any new members since the date the corporation was incorporated other than minutes of the committee meetings noting persons who were present. Of the three remaining and original members, Bonnie Smith and Phyllis Wicker are in the Wicker faction and Maureen Young is in the Schultz faction. Each faction has purported to call committee meetings but there is doubt about the validity of notice given to purported members of Murkurni. 17 In addition, Mr Bouhafs states that if there are more than three current members of Murnkurni, it has failed to provide appropriate information to those members and it has acted in an oppressive way towards them in that it has failed to hold the requisite number of committee meetings required by its rules; it has failed to hold a valid annual general meeting each year as required by its rules; it has failed to file with the Registrar's office the reports required to be filed pursuant to s 59 of the Act for any years since incorporation save for the year ending 30 June 1992. 18 Mr Bouhafs states that Phyllis Wicker and Bonnie Smith of the Wicker faction have sought, contrary to the interests of the other faction of the Corporation, to transfer the principal asset of the Corporation to another Aboriginal corporation, namely Iragul Corporation. Finally, Mr Bouhafs states that there has been little activity by the Corporation since September 1995 when an ATSIC grant controller was appointed to oversee the proper administration of grant funds. There is an irreconcilable dispute between different factions of the Corporation evidenced by each faction holding its own general meeting of the Corporation in 1997. As a result of that dispute the Corporation has been rendered ineffective and has failed to function. That dispute has been ongoing since 1994. 19 Mr Bouhafs was asked in cross-examination whether he had attempted to assist in resolving the technical difficulties of Murnkurni complying with the requirements of the Act. Mr Bouhafs stated that his office had pointed out shortcomings to Murnkurni but had not provided training to its members. Mr Bouhafs was asked whether it was fair for the women of Murnkurni to presume that after the former winding-up proceedings were discontinued, that chapter was over. Mr Bouhafs replied that in the ordinary course of business where it comes to the notice of members of the Corporation that there had been non-compliance, there would be correspondence on file to show that attempts had been made to comply. This had not happened in this case. Mr Bouhafs admitted that he did not provide any positive assistance to Murnkurni, but said that there are around three thousand Aboriginal corporations throughout Australia and it was not possible for him to provide specific training for each corporation personally. Mr Bouhafs stated that it was his judgment that Murnkurni was a corporation beyond redemption and it would be a waste of resources to attempt to overcome the difficulties associated with it. He said that he based his decision on the report of Mr Stephen Thompson of Shakespeare and Company, whom he had appointed under s 59 of the Act to conduct an examination of the affairs of Murnkurni. Mr Bouhafs stated that he did have power to exempt corporations from compliance with the requirement to audit their accounts, and stated that in the absence of other considerations Murnkurni would normally have qualified for exemption. However, there were many other considerations which he took into account in taking the winding-up action. Similarly, Mr Bouhafs stated that he would normally accept a list of members such as those provided by the Schultz and Wicker factions, but in this case Mr Bouhafs was aware of the factional dispute and was unable to state with any certainty who the members of the corporation were. In Murnkurni's case there were continuing breaches and a problem with factional divisions that wouldn't go away. Mr Bouhafs said that hundreds of Aboriginal corporations find themselves in difficulties and that it is not realistic to fund each corporation in an attempt to resolve the difficulties. At the end of the day, the Registrar has to make a judgment based on all of the circumstances, as to whether to provide further assistance. Mr Bouhafs stated that he had background information going back some time in relation to the factional dispute, and it was difficult for him to separate in his mind Mr Thompson's report and his background information. 20 Mr Bouhafs stated that the allegation made by the Schultz faction that he had an agenda of his own was ludicrous. He didn't know the persons involved personally and had no personal interest in the matter. Mr Bouhafs said that he had twenty staff, all based in Canberra, and a lot of the three thousand Aboriginal corporations were in breach of the Act. It was not easy for him to assist each corporation to comply with the requirements of the Act and their rules. Although Mr Thompson had highlighted the factional difficulties and stated that they would not be resolved without the assistance of a third person, Mr Bouhafs decided in the circumstances of this case, that it would not be practicable to assist Murnkurni further. 21 Mr Bouhafs said that the only alternatives available to him were the appointment of an administrator of the Corporation or to conduct a training workshop. He did not have the power to appoint a mediator, and he could not order a binding arbitration because no regulations have been made under the Act for arbitration. Any resolution arrived at through arbitration would have to be by agreement of the parties concerned, and this was unlikely to occur. Until the government made regulations under the Act arbitration is not practicable. Mr Bouhafs was asked whether he considered alternatives such as delaying the winding-up proceedings and appointing a facilitator; calling a special general meeting of Murnkurni and asking for a register of members. Mr Bouhafs stated that none of these alternatives were viable options. He was aware that the factional dispute had been going on for a considerable amount of time and an extension of time was not in the interest of members; he knew that no valid register of members existed; and there was no valid committee of the Corporation. He had considered the question of whether to appoint an administrator under s 71 of the Act. However, that was a very expensive option which he discarded on policy considerations as the appointment of an administrator is designed to be used in major Aboriginal organisations of an essential nature such as health services or housing or education-type organisations. It was necessary for him to ration the use of administrators because of limited funding. 22 Mr Bouhafs said that he is also required to take into account the public interest. Mr Bouhafs said that a large number of corporations are in breach of the Act and it was important in terms of the public interest that the Act be upheld. (b) Bonnie Smith 23 In an affidavit sworn 22 July 1998, Ms Bonnie Smith states that she was one of the founding members of Murnkurni. She supports the Registrar's application to wind-up Murnkurni. Ms Smith states in her affidavit that between the date of incorporation and November 1997, Murnkurni never received formal written applications for membership. Apart from a committee meeting conducted between herself and Phyllis Wicker on 24 June 1997, the issue whether persons should be accepted as new members had not been discussed at committee meetings, nor had a formal motion to accept new members been moved. The register of members was never established or maintained. Ms Smith goes on to state that the purchase of the hall was with the assistance of funding from ATSIC. The property was not intended to be just for the use of the Corporation's members but for the wider use of the Aboriginal community. 24 Ms Smith goes on to state that since the prior wind-up proceedings and orders made on 28 July 1995 by Nicholson J, Murnkurni has received no ATSIC funding save for sufficient monies to pay insurance and some council charges on the Corporation's hall; the hall has not been used; electricity and water to the hall have been cut off; the only meeting of the Corporation held since that date have been a committee meeting between herself and Phyllis Wicker on 24 June 1997, and a subsequent general meeting arranged by her and Phyllis Wicker on 31 October 1997. There has also been an alleged special general meeting conducted by the Schultz faction on 18 November 1997, in relation to which Ms Smith received no notice. 25 Ms Smith goes on to state that on the death of the former chairperson, Georgina Schultz (who was the sister of the former chairperson) and her family took physical control of the hall. Ms Smith alleges that Ms Schultz and her family are not outgoing persons and seem to have difficulty relating to other members of the Aboriginal community. As a result disharmony has developed between the Schultz faction, Ms Smith and others and there is no prospect of a change in that state of affairs. 26 Ms Smith states that apart from Murnkurni there are two other Aboriginal corporations in Northam. One of those corporations is the Iragul Aboriginal Corporation. Ms Smith states that she believes it is in the interest of the wide Aboriginal community that Murnkurni be wound up and its residual assets transferred to a functioning Aboriginal corporation in the area namely Iragul Aboriginal Corporation. 27 Ms Smith states that apart from the hall she was aware that Murnkurni had purchased other such minor assets such as a refrigerator, large screen television, video camera and stereo equipment. Those assets have since July 1995 been taken from the hall and she alleges that the theft of those assets has not been investigated by the police. 28 In her verbal evidence Ms Smith said that she had sometimes seen Georgina Shultz at the hall with government officials. Ms Smith herself was not involved but she wanted to be involved. 29 Ms Smith said that she thought that the hall should be there for everyone to use instead of for just one family. 30 Ms Smith said that her relationship with Georgina Schultz and Maureen Young went back a long way, but it was no good now. The relationship had deteriorated since a native title dispute arose in the community. Ms Smith said that Georgina Schultz and Maureen Young were with "the big mob" in relation to that dispute, which caused friction. Some people were left in the dark about the dispute and she had only found out what was happening in 1997. 31 Ms Smith said that she had attended a mediation meeting held by ATSIC in February or March of 1998. Ms Smith said that if they tried to resolve the dispute, she would still not be allowed in the hall and the other faction would make sure that they would not be allowed to enter. Ms Smith said that there was no way she would be a party to resolving the dispute after what she had been through. 32 Ms Smith described the hall as a "white elephant" because nobody was using it. She said that her concern was to get the hall used again. The electricity had been cut off, and if the members of Murnkurni had done the right thing and if she and Phyllis had been included in the meetings, this may not have happened. 33 When asked whether if the Registrar and others were there to make sure that she would be included and could come to meetings, she would attend, Ms Smith said that she would not come to the party as it wouldn't work out. (c) Phyllis Wicker 34 Ms Phyllis Wicker gave evidence that she was a founding member of Murnkurni, and that she supported the Registrar's application to wind-up the Corporation. In her affidavit sworn 20 July 1998, Ms Wicker supports Ms Smith's evidence relating to applications for membership, the absence of committee meetings, the register of members, the absence of ATSIC funding since 1995 and the fact that the hall had not been used since that time. 35 In addition, Ms Wicker states that disharmony has developed between the Schultz faction, herself and others and that there is no prospect of a change in that state of affairs. 36 In her verbal evidence Ms Wicker said that she had made some attempts to have the hall used. When she suffered a death in the family she had asked Georgina Schultz for the use of the hall and Ms Schultz had refused her request. Ms Wicker said she had known that a lot of people would come to Norseman for the funeral and she had wanted access to the hall so that people could stay there. 37 Ms Wicker said that she attended the special general meeting on 22 October 1997 called by Makita Jamieson who was chairing the meeting. Ms Wicker said that the behaviour of the people at the meeting was disgusting, as people were shouting at each other. 38 Ms Wicker said that if Georgina Schultz and Maureen Young came and talked to her faction they might get somewhere. 39 Ms Wicker said that she wanted the hall transferred to Iragul Corporation so that everybody could use it. (d) Betty Logan 40 Ms Betty Logan in her affidavit sworn 29 November 1998 stated that she was employed by the Bega Garmbirringu Health Service as an Aboriginal health worker. She became a member of Murnkurni in approximately early 1992 when she joined the Corporation by going to and joining in with Corporation sewing classes. At the time there was no requirement to complete an application for membership and she was simply accepted as a member. 41 Ms Logan states in her affidavit that in 1992 or 1993 she was appointed to the executive committee of Murnkurni. During her period as a member of the executive, Murnkurni did not require applicants for membership to fill out an application form. When she was a member, the issue of admitting persons to membership of the Corporation was not discussed at any meetings which she attended. People interested in and participating in the Corporation's activities were accepted as members. She could recall that the executive committee did discuss a nominal figure of $15 being paid by members. Ms Logan states in her affidavit that she thought it was to be an annual fee but she couldn't say if this was enforced. At meetings of the Corporation no one checked or questioned whether attendees at meetings were members and entitled to vote. To the best of her knowledge the Corporation had never kept a formal register of members. Ms Logan states that she never received formal notice of a meeting of the Corporation, whether it was a committee meeting or a general meeting. Her knowledge of the date, time and place of meetings was by way of oral communication. 42 In her affidavit Ms Smith states that since at least 1995, Murnkurni has been inactive. In particular, no funding for Corporation projects has been obtained from ATSIC save for payments of rates and other outgoings on the Murnkurni hall; the hall has not been used by Murnkurni either for functions or activities or for renting to other potential users; until 1997 there were no general or committee meetings of the Corporation; and relationships between members have deteriorated to the extent that two groups with separate interests have developed. 43 In her verbal evidence Ms Logan said that she did not attend the general meeting called in June of 1997 but she was at the meeting called by Ms Jamieson in October of 1997. At that meeting a resolution was passed that the hall be transferred to Iragul Corporation. Ms Logan said that she supported that resolution. Ms Logan said that this was because she would like one corporation to join with the other because of the limited number of Aboriginal people in Norseman. She would also like to have the use of the hall for other people. According to Ms Logan, there seems to be too much factional fighting. She said that they had tried hard to cooperate over the years. 44 Ms Logan said that she was in the Federal Court for the last Court hearing. Afterwards she thought that they could just get on with it. She doesn't always live in Norseman but her family does. Ms Logan stated that all of the Aboriginal people seemed to get on until the native title issue arose a few years ago. 45 Ms Logan said that she opposed the winding-up application last time when they were a more united group. She supported the winding-up application now so that they are not all competing for funds for Norseman. Ms Logan said that a women's group could be set up under the umbrella of Iragul Aboriginal Corporation. If women wanted to have separate issues dealt with, they could do this through a women's committee. 46 Ms Logan said it was difficult to explain why nobody could use the hall because of the factional dispute. She said that a lot of people can't take that sort of thing. Ms Logan stated that there is a general feeling in town that "you're not welcome" at the hall. 47 When asked about the prospect of resolving the dispute, Ms Logan said that it would have to be a wholehearted approach to mediation. She said that the ladies from the other factions present in Court at that time could not even say good morning to the other faction. Ms Logan said that they would need some assistance with mediation. Ms Logan said that she was present at the meeting held by ATSIC in March of 1998. She was there trying to resolve the issues. They tried to get the groups together but it ended up with people arguing. 48 Ms Logan said that the factional dispute was not wholly between the women of Norseman, as men were involved as well. It all went back to the native title issue. Ms Logan agreed that it was a catch 22 situation and that because of the dispute ATSIC wouldn't give any funding to Murnkurni. She agreed in cross-examination that with a bit of time and goodwill there was a reasonable chance that it could be resolved. A similar thing had happened with Iragul and the problems there were fixed.
(e) Stephen Thompson 49 In an affidavit sworn 10 July 1998, Mr Stephen Thompson of Shakespeare & Co, chartered accountants, states that on 18 February 1998 he was appointed by the Registrar of Aboriginal Corporations to conduct an examination of the affairs of Murnkurni pursuant to s 60 of the Act. On 16 March 1998 he forwarded to the Registrar a report on the results of his examination. Mr Thompson found that Murnkurni had not maintained a current register of members as required by s 58 of the Act. The Schultz and Wicker factions had both provided documents which purported to be a register of members but because of inadequate record-keeping it was impossible to determine who were current valid members of the Corporation. Prior to the creation of these purported registers no register was maintained. Mr Thompson found that no valid annual general meeting or special general meetings had been held and the general meetings held by each of the factions were considered invalid as proper notice of the meetings was not issued to all members. Mr Thompson found that both the Act and the rules of Murnkurni had been breached in a number of respects. He found that neither group purporting to have control of the Corporation had acted honestly and diligently. Mr Thompson said that as a result of the parties' lack of action, Murnkurni had ceased to pursue its objectives and funding had been withheld. Mr Thompson's opinion was that the two parties had put their personal position before the best interests of the Corporation. 50 Mr Thompson had found that the Corporation had not maintained proper records and accounts as required by s 59 of the Act and Rule 17 of Murnkurni. He noted that a grant controller had been in place since 1 September 1995 who controlled grant funds, paid all accounts and prepared grant acquittal statements. His activities had been directed by ATSIC. Mr Thompson investigated Murnkurni's financial position. He found that the grants for the year ended 30 June 1998 had not been released due to the dispute between the two parties claiming control of the Corporation. In the 1995/1996 financial year, Murnkurni received total grants of $24,000 which were released to pay legal costs regarding the previous wind-up action, outstanding telephone bills and holding costs of the property. In 1996/1997 Murnkurni received total grants of $6000 which were released to cover holding costs of the property (rates and taxes, insurances). Grants prior to 1996 were not acquitted but had been abandoned by ATSIC. ATSIC had indicated that it would continue to fund the Corporation if the dispute between members was resolved. Mr Thompson concluded that it was his opinion that the Corporation would pass a solvency test subject to ATSIC continuing with its current policy. The Corporation had not and could not pursue its objectives up to now because it had not received any funding beyond that which would pay outgoings on the hall and the legal costs involved in the last winding-up application. Murnkurni had been dormant since the wind-up action was set aside. 51 Mr Thompson concluded in part as follows: "The Corporation will continue to breach both the Act and its rules while the dispute continues. In my opinion, the relevant faction groups do not have the ability to resolve the dispute without intervention by an independent third person to act as facilitator". Mr Thompson concluded that there were only four members of the Corporation based on the evidence he obtained through his examinations. This conclusion was based on an examination of the records in existence. 52 Mr Thompson acknowledged in cross-examination that it would not be difficult for the Corporation to comply with the formalities required by the Act and rules. However, he stated that it would require a degree of cooperation between the parties.
(f) Alan Smith 53 Mr Alan Smith gave evidence that he is a Regional Manager of the Kalgoorlie region of ATSIC. Mr Smith in an affidavit dated 15 September 1998 states that in February 1997 at a council meeting a grant was approved to Murnkurni of $6,000 for the 1997/1998 financial year on the basis that "this grant is not to be offered until the organisation has had its 1997 AGM and become active". In addition the council approved a further grant of $1,000 for the costs of a grant controller who at that time was directly in charge of the Corporation's affairs. In May of 1997 the council approved a further grant of funds to Murnkurni of $10,000. 54 Mr Smith states that on 30 June 1998 he received a facsimile purporting to be from Murnkurni, attaching minutes of the meeting of the Corporation at which it was alleged new members were admitted, and it was sought to transfer the Corporation's ownership in a hall to the Iragul Aboriginal Corporation. The facsimile was sent by Mikita Jamieson of the Wicker faction. Mr Smith states that he had some knowledge of the Corporation and persons associated with it, and was aware that Georgina Schultz had been involved in its activites. He noted that Ms Schultz was not listed as present at the meeting. He therefore wrote to Iragul Aboriginal Corporation, Murnkurni and to the Wongatha Regional Council relating to the issues raised by the facsimile. 55 The matter was discussed at a council meeting at the end of July of 1997. On 5 August 1997, Mr Smith wrote to the Registrar of Aboriginal Corporations seeking a list of members of Murnkurni. He received a reply indicating that the only members listed by the Registrar were the original five applicants for incorporation. At a council meeting on 16-19 February 1998 the council resolved that a letter should be sent to both Iragul Aboriginal Corporation and Murnkurni requiring that a meeting be held in Norseman in order to attempt to resolve the dispute. In March of 1998 the mediation sought by the Council took place in Norseman. At the council meeting on 25-26 March 1998 the minutes of the mediation meeting in Norseman were tabled. The council was also provided with a written organisation status report in relation to Murnkurni and was advised that Murnkurni was under a s 60 examination by the Registrar and was still inactive. The council resolved to withdraw the funds previously approved for allocation. 56 In his verbal evidence Mr Smith stated that ATSIC requires organisations to submit performance reports on a quarterly basis. Murnkurni did not comply with these requirements of ATSIC for 1992 and 1993 through to 1995. It was not applicable for 1995/1996 given that a grant controller was appointed. 57 Mr Smith said that he called the meeting held at Norseman on 4 March 1997. Several regional councillors including Jenny Carter were present. There were also two ATSIC staff plus the Murnkurni people present: about twenty to thirty people including members of both factions. The dispute was not resolved. At the meeting it was agreed that a sub-committee chaired by Councillor Dimar would be set up to try to resolve the dispute but the matter "just sort of petered out" and several ladies didn't attend subsequent meetings. 58 Mr Smith said that in the past ATSIC has shown support for funding the hall, but it would want the dispute resolved before it would look at funding Murnkurni again. Mr Smith said that ATSIC had tried to resolve the dispute although their efforts did not constitute a formal mediation. They simply got the two parties together but there was no follow-up after it petered out. Mr Smith said that if the parties could come together he was sure that the council would be very receptive to further requests for funds. Mr Smith said that it is not ATSIC's responsibility to try to resolve internal conflicts in Aboriginal organisations, but it did try to facilitate disputes if a dispute diluted the effectiveness of an organisation.
(g) Paul Beresford 59 Mr Beresford gave evidence that he conducted a prior examination of Murnkurni covering the timeframe up to about July/August of 1993. At that time he concluded that the organisation was insolvent. It is apparent that the position of Murnkurni has changed since then because of subsequent grants by ATSIC.
(a) Georgina Schultz 60 Ms Georgina Schultz gave evidence on behalf of the "Schultz faction" which is opposing the winding-up of Murnkurni. Ms Schultz swore affidavits on 15 July and 11 September 1998, which were filed herein. Substantial portions of those affidavits were struck out by consent. A further affidavit sworn by Ms Schultz dated 5 October 1998, which was prepared after the Schultz faction gained legal representation, was also tendered into evidence. 61 Ms Schultz states in her affidavit dated 15 July 1998 that she is the chairperson of Murnkurni and opposes the application for a winding-up order. In that affidavit Ms Schultz states that the Murnkurni ladies group had suffered severely since 1992 and had chosen to speak out publicly about the whole structure and system. She states that Murnkurni meets as much as possible. During the first Court case the Registrar had accused Murnkurni of not holding meetings, yet they had presented to the Federal Court copies of the minutes. Those allegations were being repeated again. In her affidavit Ms Schultz states that Murnkurni has not had funding to operate for nearly four years. When funding was given, all they could do was pay outstanding debts. In early 1997 they had obtained funding to operate as a corporation, however members of Iragul Aboriginal Corporation in Norseman called a meeting to say that they were the members of Murnkurni and therefore held further meetings to amend Iragul's constitution in obtaining Murnkurni's assets. Ms Schultz was not notified of those meetings. ATSIC then withdrew Murnkurni's funds, and the next thing was that they received a winding-up court action by the Registrar of Aboriginal Corporations. 62 In her affidavit sworn 11 September 1998, Ms Schultz states that Mr Bouhafs had always acknowledged her as the chairperson of Murnkurni since early 1993, and had therefore arranged for his affidavits to be served on Ms Schultz. In that affidavit, Ms Schultz states that she had been a member of Murnkurni since incorporation. She was also a member of the Association prior to incorporation. The lawyer who assisted them with incorporation informed the ladies that only a minimum of five names was required on the application form, which explains why only five names were placed on the form. 63 Immediately after incorporation, Ms Schultz was appointed treasurer of Murnkurni and she held that position until 1 March 1993, when she was appointed chairperson. 64 Ms Schultz states in her affidavit that the former chairperson, who is now deceased, was one of her sisters and was responsible for setting up Murnkurni. She was determined to set up the corporation after she attended a women's conference in Adelaide in 1988. After incorporation, she had begged government agencies to obtain funding to purchase the Norseman hall. She had also worked tirelessly to set up programmes and activities to show how important Murnkurni was. Her sister would often meet with a local member of parliament, Mr Grill, who was always there to lend his support, particularly if any problems arose. 65 Ms Schultz states in her affidavit that since her appointment as chairperson on 1 March 1993, Murnkurni had held regular committee meetings but it was unable to operate due to Murnkurni not being able to obtain funding from ATSIC's Wongatha Regional Council from late 1992 to early 1997. They were also unable to obtain funding from the Lotteries Commission or the former Aboriginal Affairs Planning Authority. In early 1997 Murnkurni hall finally had the electricity reconnected. 66 Ms Schultz states in her affidavit that with regard to Iragul Aboriginal Corporation holding meetings, she wrote several letters to Mr Bouhafs, to Mrs Veronica Williams-Bennell, chairperson of the Wongatha Regional Council, and ATSIC Commissioner Preston Thomas and not one of them responded to her. 67 Ms Schultz also states that when Mr Bouhafs informed her that he was appointing Mr Thompson to carry out an examination into Murnkurni, she had requested that he appoint a female person to carry out the examination, considering that they were a ladies group. Nevertheless, Mr Bouhafs had sent a male to investigate. 68 Ms Schultz goes on to say that Murnkurni is part of their Aboriginal culture, particularly women's issues. She had carried an important role since losing her sister and they planned to acknowledge her by naming the Murnkurni hall after her. Ms Schultz concludes in that affidavit "our ladies strongly object to Murnkurni Women's Aboriginal Corporation being wound up, as it is an important part of our Community, our Culture and Heritage." 69 In her affidavit sworn 5 October 1998 Ms Schultz refers to minutes of meetings annexed to the affidavit of Maureen Young. She states that as can be seen from those minutes, she had sat as chairperson at a great many meetings at which both Bonnie Smith and Phyllis Wicker were present. At none of those meetings did they ever question her entitlement to sit as the chairperson of the respondent. 70 In that affidavit Ms Schultz denies that she took physical control of the Murnkurni hall after the death of the former chairperson of Murnkurni. Ms Schultz states that she is fully aware that Murnkurni hall is the property of the respondent and not her personal property. 71 In relation to the Bega Garmbirringu Health Service, Ms Schultz states that she had told a representative of that organisation that Murnkurni would require a written agreement to be drawn up granting permission to establish a health clinic at the hall. The representative never got back to her about the proposal. 72 Ms Schultz states that in or about June 1998 a refrigerator belonging to Murnkurni was stolen from Murnkurni hall. She telephoned the local police to report the break-in and two police officers had attended. 73 Ms Schultz states in that affidavit that since the previous winding-up proceedings Murnkurni has not been as active as it used to be. As chairperson of the respondent, Ms Schultz was not able to devote as much energy to the task as she used to. This was due to the fact that a brother and a sister of hers died in 1996. She was also grieving from losing another brother and sister in 1993 who used to use the Murnkurni hall quite frequently and under Aboriginal custom is required to avoid Murnkurni hall as much as possible in respect for their spirits. 74 Ms Schultz states that it is also true that Murnkurni hall was not used as much as it had been in the past. This was due to the fact that the insurance had not been paid and the electricity had been cut off by lack of funding from ATSIC and the then pending winding-up proceedings. Those outstanding debts were cleared in about early 1997. 75 Ms Schultz also referred to Phyllis Wicker's affidavit in which Ms Wicker alleged she was unable to use Murnkurni hall to provide accommodation for her family in 1996. Ms Schultz states that this is true because Murnkurni hall is zoned under local council by-laws for recreational use and not for residential use, and Murnkurni had received an official warning from the local council that accommodating visitors in the hall was contrary to the by-laws. 76 In her verbal evidence, Ms Schultz stated that she was involved in establishing Murnkurni. This was done because at the time there was nothing going for the ladies in Norseman. There were at that time two other Aboriginal corporations: a community out of town and Iragul Aboriginal Corporation. The ladies wanted something for the ladies and children. 77 As to the basis of the dispute between the two factions, Ms Schultz said that her husband had set up a company which is involved in native title and some people in town were not happy about it. 78 Ms Schultz stated that she was 100% in favour of getting Murnkurni moving again. They had had two meetings with Christine Donaldson of ATSIC to try to resolve the dispute. Some people from the other faction did not attend the meetings. Ms Schultz said that she once tried to visit Phyllis Wicker, and they had a cup of tea and a good yarn. Ms Schultz said that if they had a little bit of help and a little support, a mediator or facilitator, surely they could come to some agreement. 79 Ms Schultz acknowledged that there were no financial reports prepared for Murnkurni in 1990, 1991, 1993, 1994 and 1995. There was no 1996 financial report prepared until the meeting of 18 November 1997. 80 Ms Schultz said that ATSIC had provided them very little advice about anything. 81 Ms Schultz said that she had seen the rules of Murnkurni and knew that as chairperson she needed to be aware of what they say. She was aware that an annual general meeting should be held within three months of the 30 June each year, and that no annual general meeting was held in 1993, 1994, 1995 and 1996. 82 Ms Schultz said that she couldn't recall whether she had ever as chairperson requested the Registrar for an exemption in relation to the requirements of audited reports. She said that they had no communication with the Registrar or ATSIC as they sent Murnkurni's mail to the wrong address. 83 Ms Schultz said that she was aware of the requirements of the rules. When asked about committee meetings between the end of 1993 and November 1997, Ms Schultz said that they were held, but because of lack of funding they could not use the hall and there was nothing Murnkurni could do. Minutes were taken but she couldn't produce them. The committee meetings were informal in that they sat around with a cup of tea. The committee members cleaned the hall but they couldn't operate the hall as there was no electricity. They couldn't even use the sewing machines. 84 They also had a conflict with the other ladies group in that they couldn't work together. Ms Schultz said that in Aboriginal culture they meet informally all the time. They were asking for help and finance to try to meet the objects of the Corporation but had received no reply. They filled in forms, but Ms Schultz didn't have a record of the applications made. She couldn't recall offhand when requests for assistance were made and she didn't have the records available. They had limited funding, the hall was run down and was not insured. They received no grants and there was nothing Murnkurni could do. Ms Schultz said that she knew that a register of members was set up in the past year and also back in 1993, but she could not produce it. When Mr Beresford came to examine the Corporation they had none of Murnkurni's books as they had been taken away. 85 Although it was contrary to the rules for a public officer to remain for longer than two years, Ms Schultz said that the issue was not raised with the committee because according to Aboriginal culture the people accepted what was there. Ms Schultz said that in their Aboriginal community, she was accepted as chairperson. 86 When asked during cross-examination why, when she was present at the previous winding-up application, she did nothing between 1995 and 1997 to ensure compliance with the Act and rules. Ms Schultz replied that they were unable to operate because they had no funding. They were trying all the time to get someone to show them the ropes. 87 In relation to their problems with the other faction, Ms Schultz said they needed support to get someone to get the groups together, but it could not be done overnight. They needed to have someone to keep coming back to help the groups get together. Ms Schultz said that if after all the women met and someone of the Wicker faction was elected chairperson of Murnkurni, she would help that person out.
(b) Maureen Young 88 In an affidavit dated 28 August 1998, Maureen Young states that she was a founding member of the Murnkurni. The name Murnkurni came from a dreaming story, passed down to Ms Young by her ancestors and is part of her Aboriginal culture which was why they have opposed very strongly the winding-up application. One of the reasons Murnkurni was set up was that the Iragul Aboriginal Corporation services the Aboriginal people at Tjintu Para community situated 15 kms north of Norseman and was not servicing the town people, and also was not addressing indigenous women's issues. There was another Aboriginal corporation, the Ngardju Bugarla Mirnning Wamu Aboriginal Corporation with the Dundas Shire but that was incorporated in 1993 to deal with native title issues only. 89 In her affidavit Ms Young said that disharmony came from within the community since 1993 when Phyllis Wicker and Bonnie Smith refused to assist the women with their first Court case. Further conflict developed when Phyllis Wicker asked to use the hall on two occasions for her family members to reside in the hall at funeral times, and they were unable to allow any people to reside in the hall. 90 Ms Young states that the committee had decided on a membership fee of $15. A receipt is given in return for payment of this amount. Ms Young annexed evidence of this practice, identifying membership in four receipts produced. Ms Young goes on to say that interested members were invited to attend the meetings and traditionally and culturally they were automatically accepted. Ms Young goes on to say that since 1990, copies of the minutes of meetings identify most of the ladies who have been members of Murnkurni. Those minutes identify fourteen women in addition to the original five members listed in the Registrar's records. In addition, there were several other ladies in Norseman who also became members and attended the meetings but records of those minutes have been misplaced. 91 Ms Young states that in 1992 the Eastern Goldfields Aboriginal Corporation Resource Agency from Kalgoorlie came to Norseman and requested Murnkurni's accounts and records, including financial reports, cheque books and receipt books. In early 1993, Murnkurni asked the organisation to return all its property but they refused. In late 1992, Murnkurni discovered that that agency was trying to change Murnkurni's constitution without the knowledge of the committee members. 92 Ms Young states that from 1993 to 1995 Murnkurni could not operate due to legal proceedings involving the previous Court case, and this resulted in the electricity to the hall being disconnected. Furthermore, Murnkurni still found it impossible to operate following disputes with ATSIC in delaying funds to Murnkurni. Although Murnkurni received funding in the 1995/1996 and 1996/1997 financial years, these funds could only cover outstanding accounts since 1993. In early 1997, the electricity was finally reconnected. 93 Ms Young said that after this, Ms Schultz wrote to the Wongatha Regional Council of ATSIC to meet with Murnkurni and Iragul to sort out the dispute in the town. This meeting was held in March 1998, and it was suggested that ATSIC's women's issues officer, Christine Donaldson, organise two follow-up meetings. Phyllis Wicker and Bonnie Smith failed to show up at those meetings and another meeting was organised for a further day. Phyllis Wicker and Bonnie Smith still failed to show up. Ms Schultz then wrote to Mr Bouhafs with the concerns and he appointed Mr Thompson to carry out an examination on Murnkurni. Mr Bouhafs did not contact either Ms Young or Ms Schultz to see if any of the allegations made by Mr Thompson in his report were true or not. 94 Ms Young states in her affidavit "I have very strong culture beliefs, and to wind-up our Corporation is an offence to our Culture, particularly women's beliefs. I urge that this be seriously be taken into consideration." 95 In an affidavit sworn 5 October 1998, Ms Young states that she is an Aboriginal elder of the Gnadu People and a State Commissioner of Elders. She is also a Justice of the Peace, a civil marriage celebrant and is regularly consulted by the army and police on Aboriginal cultural issues in the area. Ms Young states that she and a number of other Aboriginal women in the Norseman area thought, prior to the incorporation of Murnkurni, that there was a need for an incorporated organisation purely consisting of women to focus on women's issues. They believe this was important because under Aboriginal culture there is a very important distinction between "men's business" and "women's business". It was Ms Young's belief at the time, and remains her belief, that there is a very real need for a special women's organisation. Such an organisation allows women to discuss matters which cannot be discussed in the presence of men and also provides a focus for matters of concern solely for women. 96 Ms Young states in that affidavit that there was no real contest in terms of electing office bearers of Murnkurni. This was because all women present followed the Aboriginal custom of trying to share the power. The aim was to have one representative from each of the Aboriginal families in the area in one or other of the positions. As a general rule the committee met about once a month. Also as a general rule, there was a meeting of all members of Murnkurni about two or three times a year. To convene a meeting of the committee, because there were only a few members, they would just arrange it amongst themselves. However, with full meetings of all the ladies, they would be advertised by preparing small hand bills which would be handed out from person to person around the Shire of Dundas. 97 In her verbal evidence, Ms Young stated that at the time that Murnkurni was incorporated, a lot of things were happening in Aboriginal people's lives, and women took on a responsible role. The Aboriginal women of Norseman had started getting together and decided to apply for incorporation so that they could apply for funding. 98 Ms Young said that the current dispute between the two factions could be misunderstood. Throughout the ages, there have always been disputes and disagreements between Aboriginal people, but the fact is, they can disagree and agree at the same time. To solve the dispute, Ms Young believed that there are women in Norseman who have been calling out for help from people with expertise from departments and organisations, but their cry was left unheard. Ms Young said that she believed that there was sufficient goodwill left to resolve the dispute. 99 Ms Young said that she believed there was a piece of paper with a list of membership of Murnkurni but this went astray. Ms Young said that she was aware of the rules of Murnkurni to some extent. She acknowledged that there were no annual general meetings held between 1993 and 1996. 100 Ms Young said that a list of names purporting to be the members of Murnkurni consisted of the ladies that live in the town. As far as they were concerned, Murnkurni consisted of all the Aboriginal women in a community. She said that they don't have to write lists as it is not part of their Aboriginal culture. When asked about the receipt book which identifies members who have paid their membership fee, Ms Young said that she did not know if there were any other receipts in existence. She said that if you understand Aboriginals, some Aboriginal people will pay and some won't.
(c) Jenny Carter 101 Ms Jenny Carter gave evidence that she was an ATSIC Regional Councillor for the Wongatha Regional Council which covers the goldfields region in the State of Western Australia. She was first appointed to the Wongatha Regional Council in March 1995, and then re-elected to the Council in October 1996 for a three-year term. Her portfolio covers women's issues and she swore an affidavit dated 15 July 1998 in support of Murnkurni to oppose the application for a winding-up order. Ms Carter is not a member of Murnkurni. In March 1993, Ms Carter moved to Norseman to live to assist the Iragul Aboriginal Corporation as co-ordinator. While she was there Ms Carter was approached by Ms Schultz and asked to assist Murnkurni. Ms Carter agreed to assist Murnkurni on a voluntary basis. 102 In her evidence to the Court, Ms Carter described how she conducted a document search in an effort to assist Murnkurni. She approached ATSIC and Jennifer Lord of the Australian Government Solicitor's office. Ms Lord provided Ms Carter with photocopies of documents, and Murnkurni also had some documents from the previous winding-up application. 103 Ms Carter swore two affidavits before Murnkurni's solicitors were retained. Those affidavits were sworn 15 July 1998 and 14 September 1998. Counsel for the applicant objected to much of the material contained in those affidavits on the grounds, inter alia, that the information was hearsay, irrelevant or scandalous. Ms Carter explained that the material set out in those affidavits was based on the documents she had obtained on behalf of Murnkurni and that some of the material was based on her own knowledge. Some of the material contained in those affidavits was struck out by consent. As to the rest of the material, I have had regard to it and given it such weight as I considered appropriate in the circumstances of this case. I consider it appropriate for me to exercise my discretion in this way because Ms Carter has had continuing involvement with Murnkurni over the relevant period and has conducted a thorough examination of all the relevant documents she was able to obtain. 104 In her affidavit of 15 July 1998, Ms Carter describes how EGACRA obtained all of the records and financial materials from Murnkurni in 1992. Ms Carter herself made attempts to have those documents returned to Murnkurni. 105 In 1993 ATSIC wrote to Murnkurni alleging misappropriation of grants allocated in 1991/1992. According to Ms Carter, Murnkurni was never in a position to acquit documentation as EGACRA had all the financial records. 106 In an affidavit sworn 14 September 1998, Ms Carter states that although Murnkurni has received some funding from ATSIC over the past eight years, other amounts of funding had been allocated under Murnkurni's name but were never received by Murnkurni. Ms Carter alleges that every year, ATSIC promised funding to Murnkurni and then later would withdraw the funds, and that this contributed significantly to Murnkurni's downfall. Ms Carter alleges ATSIC consistently failed to notify Murnkurni of grants made to it. 107 Ms Carter states in her affidavit that Murnkurni made repeated attempts to council chairperson Mrs Veronica Williams-Bennell, Mr Bouhafs and ATSIC Commissioner Preston Thomas to assist in the dispute between the two factions, but states that all pleas for help were ignored. 108 Ms Carter stated in Court that she didn't agree that ATSIC hasn't been able to resolve the dispute. The Regional Council went to Norseman for a meeting on the 4 March and an officer went down two weeks later. It did not proceed because the Wicker faction failed to turn up twice.
Discussion of Evidence 109 In the course of the hearing, a number of matters were canvassed in detail which have not been set in full in my description of the evidence. Some of this concerns objectionable material in affidavits filed on behalf of Murnkurni. Other evidence not dealt with in detail includes the following: · correspondence between the Registrar, his office and officers of ATSIC purporting to show bad faith on the part of the Registrar or ATSIC's officers: for example, that the Registrar told ATSIC that it would be "stupid" to fund Murnkurni, that ATSIC told the Registrar that Murnkurni was dysfunctional, and that the Registrar didn't pay sufficient regard to what was happening "on the ground" in attempts to resolve the factional dispute; · whether particular women were eligible for membership of Murnkurni at any particular time because of their permanent residency status of Dundas Shire; · whether particular people were given notices of annual general meetings held by the two factions; · details of the purported annual general meetings held in the latter part of 1997 by the rival factions; · the proposed use of the hall by the Bega Garmbirringu Health Service in 1997.
Findings 110 Based on the evidence before me, I have made the following findings of fact:
Application of the Law 111 The applicant is seeking orders winding up the respondent under s 62A and s 63 of the Aboriginal Councils & Associations Act 1976. Under s 67 of the Act, the provisions of the Corporations Law relating to winding-up apply. In Re Deeral Aboriginal & Torres Strait Islanders Corporation (1996) 70 FCR 229 Kiefel J noted that the function of the Registrar of Aboriginal Corporations is, by s 5, said to be principally to maintain registers, to advise and to arbitrate in disputes. Her Honour noted further powers of the Registrar which provide for a level of supervision of the affairs of corporations. Her Honour concluded at p 231 as follows: "… the Registrar's role is therefore a combination of advice and assistance, dispute resolution and supervision at least with respect to irregularities in the financial affairs or the operation of the company." 112 Section 58A provides for arbitration by the Registrar of disputes between members of an incorporated Aboriginal association. Sub-section (6) of that section states: "An arbitration must be conducted in accordance with the regulations". 113 The Registrar made the point that as there are no relevant regulations, any arbitration he attempted to conduct would not be binding on the parties. There is no provision in the Act for mediation of disputes by the Registrar. 114 In addition to the powers and duties of the Registrar under the Act, members of the governing committee of an incorporated Aboriginal association have certain duties and responsibilities. In addition to the requirements of the Act already dealt with, such as keeping an up-to-date register of members, s 49C of the Act states: "A member of the governing committee of an incorporated Aboriginal association must act honestly and diligently in exercising powers and performing functions and duties under this Act, the regulations and the rules." 115 In the case of Kurilpa Protestant Hall Pty Ltd (1946) St R Qd 170 it was found by the Supreme Court of Queensland that the affairs of the company had been conducted practically since its incorporation with a complete disregard for the requirements of the Companies Act. In that case, it was found that no auditors had been appointed for the company since its incorporation; that the books of account had never been audited; that no proper books of account had been put before any general meeting; and that the persons acting as directors of the company had assumed to issue a large number of fully-paid shares to the manager and secretary without a special resolution in breach of the company's articles and the statutory provisions. It was held in that case that it was just and equitable that the company be wound up. The similarities between that case and the present relate primarily to the neglect of the requirements of the rules and the Act in relation to record keeping and the holding of meetings. That case is to be distinguished from the present case in that in this case it is not suggested that committee members have attempted to gain a monetary benefit to themselves. 116 On behalf of Murnkurni it is argued that where the Court is asked, in its discretion, to wind up a corporation on discretionary grounds like public interest or that it is just inequitable to do so, then that discretion should only be exercised where there is no alternative and reasonable remedy available. The Court was referred to the case of Re Novrabron Pty Ltd (1987) 5 ALC 184, in which the directors were using their control of the company for their own advantage in disregard of the company's interests. Derrington J stated at p 211: "… the remedy of winding up is drastic and should be avoided in favour of an alternative if it be reasonable and available." 117 In that case the situation was able to be remedied by an order for the transfer of shares which had been improperly transferred. 118 In the case of Re Co-operative Travel Society & Ors (1977-1978) CLC 40-396 Sangster J stated at p 29885: "In my opinion this is not a case to be determined by the mechanics of listing all the reported classifications of facts upon which courts have ordered a winding up under the grounds directly or indirectly falling for possible consideration in this case, and then asking of each such classification "Does this apply to the facts of this case?"." 119 His Honour decided that it should be the overall picture that should determine the result. 120 I have been unable to find any decided cases which are similar in facts to the present case. I propose to look at the overall picture in this matter in deciding whether I consider that a winding up order should be made. 121 It is argued on behalf of the respondent that the applicant is acting unfairly and is trying to make Murnkurni a scapegoat and an example to other Aboriginal corporations which have failed to comply with the requirements of the Act and their rules. Although I had some concerns when hearing the evidence that the Registrar had not done all that he might have done to assist the members of Murnkurni, on balance I have concluded that the Registrar has not acted in bad faith in seeking this winding up application. I accept the Registrar's evidence that it was his judgment in all of the circumstances that it was not appropriate to provide further money and resources to assist Murnkurni in overcoming the factional dispute and in remedying its non-compliance with its rules and the Act. In my view, it was clearly open to the Registrar to make that judgment. Moreover, it is this Court and not the Registrar which must now decide whether to make a winding up order in all of the circumstances of this case. 122 In looking at the overall picture, I am satisfied that there are at least five members of the Association, even if they are not listed on a register of members which complies with all of the requirements of the Act and rules. 123 Further, I am very mindful of the fact that there are strong cultural factors which have contributed to the present state of affairs of Murnkurni. I accept the evidence of witnesses such as Maureen Young who have described the reasons for non-compliance with requirements such as compiling a formal register of members and notifying members of meetings, as not being the way the Aboriginal people of Norseman normally do things. However, if any group of Aboriginal people wishes to gain the benefits which incorporation under the Act brings, it must also comply with the requirements set down by Parliament which go along with incorporation. 124 In my view, looking at the overall picture, there are two main reasons why it is just and equitable that the Association be wound up. In the first place, there is a history of chronic non-compliance with the requirements of the Act and the rules, almost from the time Murnkurni was incorporated. The members of Murnkurni should have been alerted to the consequence of non-compliance when the previous winding-up application was made by the Registrar. If anything, the non-compliance has worsened since that application was dismissed by consent. The members of the governing committee have not acted diligently, although I do not consider that it would be true to say that they have acted in their own interests rather than in the interests of the members. They have just acted very little, if at all, over the past few years. 125 In the second place, there is a factional dispute between the members of Murnkurni which has existed for some time and which, on the evidence, is unlikely to be resolved. Some attempts have been made by ATSIC to resolve the dispute, but these have been unsuccessful. In these circumstances, ATSIC will not release funding and Murnkurni's principal asset, the hall, is not able to be used for the benefit of the people of Norseman. Because of this, it is in my view also in the public interest to wind up the corporation. 126 In deciding this, I have balanced these considerations against the quite proper, in my view, desire by the women of Norseman to run a separate women's group. It gives me no pleasure to make the winding up order. However, the women of Norseman are not precluded by the making of this order from establishing another group for the benefit of the women and children of the town. I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the Reasons for Judgment of Boon JR
Counsel for the applicant: Ms J Davis Solicitors for the applicant: Australian Government Solicitor Counsel for the respondent: Mr M De Kerloy Solicitors for the respondent: Mony De Kerloy Date of Hearing: 30 November, 1 & 2 December 1998 Date of Judgment: 29 April 1999
Registrar of Aboriginal Corp
Murnkurni Women's
(1996) 70 FCR 229