FEDERAL COURT OF AUSTRALIA

Coombes v Registrar of Aboriginal Corporations [2008] FCA 321

PHILLIP COOMBES, MARGARET SMITH, LESLEY CALMA, HOWARD SMITH v REGISTRAR OF ABORIGINAL CORPORATIONS AND EAMONN THACKABERRY

SAD 271 OF 2006

MANSFIELD J

7 MARCH 2008

ADELAIDE

THE COURT ORDERS THAT:

1.                  The orders sought in paragraphs 1 and 2 of the application made on 1 December 2006 are refused.

2.                  The orders sought in paragraphs 1 to 10 of the revised orders proposed by the applicants in the course of the hearing are refused.

3.                  Under paragraph 3 of the application, the further hearing of the application is adjourned to a date to be fixed, with liberty to any party to apply upon reasonable notice by 31 July 2008 for further directions and for further hearing of the application.

4.                  The costs of the proceedings to date are reserved.

5.                  If any party seeks costs of the proceedings to date,

(a)                that party shall file and serve by 4 April 2008 a written submission setting out the orders that party seeks and the grounds thereof;

(b)               any party opposing any such application for costs should file and serve by 2 May 2008 a written submission setting out the grounds for such opposition;

(c)                the Court will determine any such application for costs on the basis of the material in, and referred to in, the written submissions.

6.                  Liberty to any party to apply for further directions generally by 4 April 2008.

7.                  Time for filing and serving any notice of appeal from these orders shall run from 13 March 2008 pursuant to Order 52 rule 15(1)(a)(iii).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicants are representatives of their Aboriginal Communities at Imanpa Mutitjulu and Kaltukatjara (Docker River in the Northern Territory).  The communities together are called Anangu.

2                     The Nyangatjatjara Aboriginal Corporation (NAC) is an Aboriginal Association incorporated under Pt IV of the Aboriginal Councils and Associations Act 1976 (Cth) (the Act) in July 1993.  Its central object is to “relieve the poverty, sickness, destitution, distress, misfortune and helplessness” of its members in various ways in relation to their traditional land in the Nyangatjatjara area.  Its membership is open generally to adult Aboriginal persons who normally live in the land in that area.  Each of the applicants is a member of NAC, and all but Margaret Smith are former members of its Governing Committee.

3                     The public officer of NAC is required by its objects and rules to keep a register of its members.  The control and management of the affairs of NAC is exercised by its Governing Committee, elected annually at its annual general meeting by the members.  The Governing Committee comprises not less than five members, and casual vacancies may be filled by appointment by that committee until the next annual general meeting.  The treasurer, appointed by the Governing Committee, is required to keep proper accounts and records, and there must be an annual income and expenditure statement and a balance sheet for each financial year, together with a Report of the Governing Committee required by s 59 of the Act (including the latest list of members), and an auditor’s report.  Those financial reporting responsibilities more or less mirror the obligations of the Governing Committee under ss 58 and 59 of the Act.

4                     On 26 April 2006, the Registrar of Aboriginal Corporations appointed Eamonn Thackaberry as the Administrator of NAC under s 71 of the Act, following a period of correspondence extending back to 16 January 2006 when the Registrar under s 71(1) called on NAC to show cause why an Administrator should not be appointed.  There is no challenge to the validity of the appointment in this proceeding.

5                     An application for suspension of the operation of the decision to appoint the Administrator was unsuccessful on 23 May 2006 (Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations [2006] FCA 675).  Subsequently, the proceedings to challenge the validity of the appointment of the Administrator were discontinued.

6                     The Instrument of Appointment of the Administrator recorded that the Registrar was satisfied that one or more of the grounds specified in s 71(2) of the Act had been established, and that the Minister’s approval to the appointment as required by s 71(3) had been given.

7                     The Instrument of Appointment did not itself specify which of the grounds in s 71(2) had motivated the Registrar to make the appointment.  The grounds specified in s 71(2) are quite extensive.  Section 71(2) provides:

After that period, and having considered any representations made by the corporation, the Registrar may appoint an Administrator if satisfied that any of the following grounds have been established:

(a)        in the case of an Incorporated Aboriginal Association – the Association has been trading at a loss for at least 6 months during the preceding period of 12 months;

(b)               the Council or the Governing Committee, as the case may be, has failed to comply with a provision of this Act, the regulations or the Rules, and has failed to provide a satisfactory explanation;

(c)               in the case of an Incorporated Aboriginal Association – the members of the Governing Committee have acted in the affairs of the Association in their own interests rather than in the interests of the members of the Association or otherwise in a way that appears to be unfair or unjust to members of the Association;

(d)               in the case of an Incorporated Aboriginal Association – the appointment of an Administrator is required in the interest of members and creditors of the Association;

(e)               in the case of an Aboriginal Council – the appointment of an Administrator is required in the interests of adults Aboriginal in the Council area;

(f)                 the appointment of an Administrator is otherwise required in the public interest.

8                     Although the applicants do not contest the validity of the appointment of the Administrator, they have extensive complaints about the Administrator’s conduct of the affairs of NAC, and to an extent about the alleged failure of the Registrar to require certain steps in the administration to be taken by the Administrator.  Those complaints include the administrator’s conduct of the business of the Nyangatjatjara Aboriginal College (the College) managed and operated by NAC.  Both the Registrar and the Administrator deny any conduct upon which the Court might grant certain of the claimed relief, and they contend that in the circumstances the Court has no power to grant the relief sought, and in any event should not grant the relief sought, even if certain of the conduct complained of is found to have occurred.  Before addressing the factual background, which was largely uncontested, I will note the relief claimed and I will refer briefly to the relevant provisions of the Act.

THE RELIEF CLAIMED

9                     The orders sought in the application of 1 December 2006 were:

1.                  A writ of mandamus compelling the Registrar to:

(a)        Take all steps necessary forthwith to establish a valid Register of members of the NAC so as to enable a special general meeting to be called for any proper purpose including the conducting of an election pursuant to s 77D of the Act.

(b)        Require a comprehensive report from the Administrator pursuant to s 77C of the Act and to make that report available to the Applicants.

(c)        Request the Administrator to conduct the affairs of NAC for so long as the administration proceeds and in particular to maintain the College as a viable school in the manner that it was being conducted prior to the administration.

(d)        Call a special general meeting pursuant to s 58B(4) of the Act.

(e)        Alternatively, call a special general meeting pursuant to s 58B(5) of the Act.

(f)         At the earliest possible time to conduct an election to fill the offices of the Governing Committee of the NAC.

(g)        At the earliest possible time to cancel the appointment of the Administrator.

2.         A writ of mandamus compelling the Administrator to:

(a)        Take all steps necessary forthwith to establish a valid Register of members of the NAC so as to enable a special general meeting to be called for any proper purpose including the conduct of an election pursuant to s77D of the Act.

            (b)        Call a special general meeting pursuant to s 58B(2) of the Act.

            (c)        Alternatively, call a special general meeting pursuant to s 58B(1) of the Act.

Those claims were substantially modified and refined in the course of the hearing and closing submissions.  As ultimately expressed, there were 11 orders sought by the applicants in the following terms:

1.         An order directing the Registrar forthwith to require the Administrator to establish a current Register of Members of the NAC and in doing so to advise the Administrator of the form of Register of Members satisfactory to him.

2.         An order directing the Administrator to take all steps necessary forthwith to establish a current Register of Members of the NAC and for that purpose ascertain the form of Register of Members which will be satisfactory to the Registrar.

3.         An order directing the Administrator to process new applications for membership.

4.         An order directing the Administrator to call an annual general meeting.

5.         An order directing the Administrator to call a special general meeting.

6.         An order directing the Administrator to prepare a Committee’s Report and cause an examiner’s report to be prepared and, pursuant to s 59(5), to make same available at the annual general meeting called pursuant to Order 4 hereof and to make such reports available for inspection by members.

7.         A declaration that it is incumbent upon an Administrator to expeditiously address any reasons for administration with a view to returning the control of the NAC to its members at the earliest possible time.

8.         A declaration that pursuant to the Act it is incumbent upon the Registrar:

            (1)        to supervise the administration in accordance with the Act;

(2)        to cancel the appointment of the Administrator who is not conducting the administration for the benefit of its members and with a view to returning the control of the NAC to its members at the earliest possible time and, if necessary, appoint another person who will so conduct the administration; and

(3)        in the absence of any new matter or information which comes to the attention of the Registrar that would constitute a basis for administration in its own right to bring the administration to an end as soon as the reasons for the administration have been adequately addressed.

9.         A declaration that the Rules of the NAC continue to operate and have application to the extent that they are able to be consistent with the administration and in particular that the rights of members pursuant to the Rules continue to apply and have effect as if the Administrator stood in the position of the Governing Committee and Public Officer.

10.       A declaration that on the compliance by the Registrar with Order 1 hereof and by the Administrator with Orders 1 and 3 hereof any decision by the Registrar that she is not satisfied that it is no longer necessary for the Administrator to conduct the affairs of the Corporation would be a decision beyond power.

THE LEGISLATION

10                  The Act provides for the establishment of Aboriginal Councils as legal entities which will provide services and perform functions for the benefit of Aboriginals in the area in which the Council operates (see s 16(1)).  It also provides for the incorporation of Aboriginal Associations such as the NAC for less specific purposes, but clearly an incorporated Aboriginal Association under its Rules may carry on a business to secure pecuniary profit for its members (see s 44 and s 45(3A)(a)) and as a land holding entity (see s 45(3A)(b)).  An incorporated Aboriginal Association must have rules by which its members are given effective control of the entity (see s 45(3)(b)) and only Aboriginal persons are to be eligible to be members (see s 49).  The benefits of the grant of a legal entity separate from that of its members carries with it the responsibilities to which I shall refer.  In the nature of such legislation, there is a statutory regime to ensure that the functions of an incorporated Aboriginal Association are carried out in accordance with the Rules approved by the Registrar and the prescribed reporting obligations, including the administrative action available in the event that the Registrar – who is charged with that oversight responsibility – considers such action is necessary.

11                  Section 49 of the Act requires the then Governing Committee of the NAC to have acted diligently in exercising their powers and performing their functions and duties under the Act and the Rules of the NAC.

12                  Section 58(1) of the Act obliges the public officer of NAC to keep a register of its members in a form satisfactory to the Registrar.  That is complemented by Rule 8(2) which necessarily imports the need to consider application for membership of the NAC.  The Governing Committee under s 58(3) must give the Registrar a list of the names and addresses of its members at the end of each financial year, and under s 58(4) must also give the Registrar an updated list of the names and addresses of its members within 14 days of any request by the Registrar.

13                  Under s 58B, the Governing Committee of NAC was also required to call and conduct an annual general meeting and special general meetings as provided for in its rules.  The Registrar is also empowered to call a special general meeting under certain circumstances.  That, too, is fortified by Rule 11(2).  Rules 11(3) and 9(5) then provide for the election of the Governing Committee at the annual general meeting.  Rules 11(7) and 9(10) prescribe the notice requirements for the annual general meeting, and Rule 11(8) prescribes the necessary quorum.  Rule 12 provides for the annual general meeting to be chaired by the Chairperson of the NAC.

14                  Section 59(4) requires the NAC to have lodged its annual returns including financial statements each year, an obligation also fortified by Rule 16(2).  That flows after the fulfilment of the obligation under s 59(1) to cause proper accounts and records to be maintained, to ensure all outgoings of NAC funds are correctly made and properly authorised, and that there are proper controls over the assets of NAC and over the way it incurs liabilities.  Again, those obligations are reflected in Rule 16(1).

15                  Section 60 empowers the Registrar to authorise any person to inspect documents of NAC at any time, and for that person to report to the Registrar on the results of the examination; there are supporting enforcement powers for the authorised person in that section.  The Registrar has other extensive powers under the Act:  to require the Governing Committee of NAC to comply with the Act or the regulations or rules under the Act, or to remedy any irregularity in its financial affairs (s 60A); after notice to the Governing Committee, to seek an injunction from the Court requiring it not to contravene the relevant provision (s 61); and to petition for the winding up of NAC (s 62A).

16                  The Registrar is also empowered in certain circumstances to investigate the affairs of NAC (s 68), including by obliging a person or persons to answer questions and to produce documents; to enter on the premises of NAC to examine and take possession of its books (s 70); and to appoint an Administrator (s 71).  The Administrator is then obliged to give the Registrar such information as the Registrar requires from time to time (s 77C). 

17                  If the Registrar is satisfied that, after the appointment of an Administrator, it is no longer necessary for the Administrator to conduct the affairs of the association, the Registrar must conduct an election to fill the offices of the members of the Governing Committee (s 77D).  If the Registrar cancels the appointment of an Administrator and does not appoint another Administrator, the conduct of the affairs of the association vests in that Governing Council (s 77E) which must then appoint the public officer.

CONSIDERATION

18                  In this matter, the applicants contend that the reasons for the appointment of the Administrator no longer exist, and in one respect – the preparation and maintenance of a register of a members – have not been addressed at all by the Administrator and that the time within which that matter should have been addressed has long passed.  Consequently, they claim, both the Registrar and the Administrator are continuing the administration regime for reasons extraneous to the reasons for the appointment and to the exclusion of its members.

19                  The reasons for the appointment of the Administrator are clear enough.  They can be discerned from the Statement of Reasons to the Minister, as the Registrar was obliged by s 71(3) to have the prior approval of the Minister to the appointment.  The Registrar identified the reasons as enlivening ss 71(2)(b) in respect of virtually all the statutory obligations of the NAC and its Governing Committee.  The Registrar also relied upon s 71(2)(a), s 71(2)(d) and s 71(2)(f).  Lengthy particulars of those grounds are given.  In essence, the Registrar considered that the Governing Committee of NAC was not complying with its obligations to establish and maintain a register of members, that the NAC itself may not be solvent, that in many other respects the Governing Committee was not complying with the Act or the Rules, and that the appointment was required in the interests of the NAC members and creditors and in the public interest.

20                  The applicants point out that, to the time of hearing, the Administrator had not prepared a register of members since his appointment.  He had reported to the Registrar that “NAC overall is solvent”.  However, the Administrator had not called and conducted an annual general meeting or a special general meeting or, the applicants also claim, had not maintained proper accounts and financial records.  Hence, it is argued, the Administrator himself has not complied with ss 58, 58B and 59 of the Act.

21                  More precise detail of the applicant’s concerns about the Administrator emerged in the course of evidence and submissions.  They were focused upon:

(1)               the Administrator’s actions in relation to the planning and management of the College, including his establishment of an advisory board to oversee its operations and to guide its future direction;

(2)               the Administrator’s investigation of the financial affairs of Wana Umglimutka Trust (WUT) and the businesses under its control; and

(3)               more generally, his efforts to identify the NAC’s assets and to review the management of its operations.

In relation to those general issues, the applicants complain also that the Administrator has not consulted with or informed the NAC members of the actions he has taken and of the results of his investigation.  Certain persons, including the applicants, requested the Registrar to arrange a special general meeting of NAC, so that its members could address their concerns directly with the Administrator, but the Registrar declined to do so. 

22                  Finally, in this litany of complaints, the applicants contend that the Administrator had not called an annual general meeting or caused an auditor’s report or financial reports to be prepared and made available to its members.

23                  I have no doubt that the applicants and other community members of Anangu are genuinely and deeply concerned about the impact of the administration upon the affairs of the NAC.

24                  The College is established to serve the needs of the three communities of Kaltukatjara Community, Mutitjulu Community and Imanpa Community.  The first applicant, Mr Coombes, was closely involved in the affairs of the College, as a former chairperson of NAC as well as having been a parent of a student and a houseparent at the College.  He and others are concerned at dropping student members, with the risk that they will drop below a critical mass so the College will no longer be financially viable.  He attributes a significant part of the student drop-off to the fact that the appointment of the Administrator, removed control of the College from the Anangu.  It is also attributed to the way the Administrator has played a role in the planning and management of the affairs of the College and the expenses incurred by the Administrator in relation to the College.

25                  The WUT is a public benevolent institution which manages the Anangu job network, including job futures and training programs, and has established a number of companies with separate trusts (all for the benefit of NAC and so for the three communities) involving a series of tourist activities and other businesses.  It has a significant turnover in the order of $20 million per year, and assets through its tourism related and other businesses of some $10 million.  The trustee of the WUT is Wana Ungkuntja Pty Ltd of which NAC is the sole beneficial shareholder.  WUT is then (presumably through its trustee) the sole beneficial shareholder in the companies and business enterprises referred to.  The various companies (some 11 in number) conduct tourism, investment, transportation, entertainment and community service activities.  It operates to facilitate community security by providing employment opportunities, education and overall development and independent financial security for the communities.  There is also clear evidence that the applicants and other community members of Anangu (as well as certain officers of WUT) are concerned that the appointment of the Administrator and the administration itself are having a significant detrimental effect upon the various business enterprises of WUT.

26                  I note that there was an annual general meeting of NAC on 21 March 2006, shortly prior to the appointment of the Administrator.  The meeting conducted extensive business, including the election for the following year of a Governing Committee comprising six members (two from each of the three communities comprising NAC).

27                  The present application, in substance, therefore seeks to bring the administration to an end before the Registrar is disposed to end it, and before the Administrator has reported to the Registrar that it is appropriate to bring the administration to an end.  As the Administrator’s appointment was to continue until the Registrar is satisfied that it is no longer necessary, the administration has no specific termination date.  Such a term of appointment is permitted by s 72:  Re Alcoota Land Claim No 146 (1998) 82 FCR 391 at 409.

28                  Neither the Registrar nor the Administrator regard it as timely for the administration to come to an end.  It is clear enough that an administration is to last only so long as the purposes for which the appointment was made (see Kazar v Duus (1998) 88 FCR 218 at 237.  It is not so clear that the Court should substitute its judgment for when that point has been reached for that of the Registrar.  It is the Registrar who, subject to the prior approval of the Minister, appoints an Administrator under s 71(2).  The Registrar does so after such investigation as the Registrar considers appropriate under s 68 and after considering any representations from the Aboriginal Association in response to the notice given under s 71(1).  It is the Registrar’s satisfaction that one or more of the grounds in s 71(2)(a) to (f) have been established.  The Registrar has the power to seek information from the Administrator from time to time under s 77C, and then it is the Registrar’s satisfaction that it is no longer necessary for the Administrator to conduct the affairs of the Aboriginal Association which triggers the obligation to cause the election of a Governing Committee under s 77D and the cancellation of the appointment of the Administrator under s 77E.

29                  It is important, therefore, to recognise that the Court is either simply being asked to substitute its view as to whether it is no longer necessary for the Administrator to conduct the affairs of NAC, or alternatively to conclude that there is some error of law on the part of the Registrar which would make the fact that the Registrar has not come to that view when the law, properly understood and applied, must have lead the Registrar to a point of satisfaction that it is no longer necessary for the administration to continue.

30                  The first of those alternatives, in my view, does not reflect the proper role of the Court.

31                  Initially, the applicants sought a series of orders in the nature of mandamus against the Registrar.  They are set out above.  The reformulation of the orders sought against the Registrar reflects an implied acknowledgment that orders in the nature of mandamus against the Registrar were inappropriate.  That is simply because there is no relevant public duty imposed on the Registrar under the Act, of which the applicants have demanded performance and which has been refused:  R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51.  The Registrar’s powers referred to above do not amount to public duties vulnerable to judicial activation by mandamus:  Ward v Williams (1955) 92 CLR 496.

32                  The alternative way of understanding the applicant’s general case set out in [29] might arise if, as a matter of fact, the discretion of the Registrar to act under ss 77D and 77E to bring the administration to an end was really spent, so that there is now no other way that the discretion could be exercised except by acting under ss 77D and 77E:  see e.g. Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 81 and 88; Samad v District Court (New South Wales) (2002) 209 CLR 140 at 163-164.

33                  But that is not a case that the applicants ultimately sought to make out.  The Registrar through her delegate gave evidence that she was not satisfied that it is no longer necessary for the Administrator to conduct the affairs of NAC, and I was not asked to find that the Registrar could not have had such a view.  Indeed, the revised orders put forward by the applicants proceed on the basis that, at least until a register of members is completed by the Administrator to the requirements of the Registrar, the Registrar may reasonably consider that the administration may continue.

34                  I revert to the particular orders now sought against the Registrar.

35                  They seek an order directing the Registrar to require the Administrator to establish a current register of members of NAC.  There is no positive obligation under the Act that the Registrar should take that step.  That is a sufficient reason to decline to make that order.  The Registrar of course has the power, but not the obligation, to seek information about the administration under s 77C, and to cancel the Administrator’s appointment and to appoint another Administrator under s 71 and 77E.  Again, those provisions contain powers, but in my view not obligations enforceable by orders in the nature of mandamus.

36                  In any event, I would decline making that order against the Registrar in my discretion.  On the evidence, the Administrator is in the process of preparing a register of members.  It was anticipated that it would be completed soon after the hearing.  The Registrar is apparently aware of that program.  The applicants would have had the Administrator give priority to that task, but in conducting the affairs of NAC and fulfilling the functions and duties of its public officers (s 75) the Administrator must make decisions about what must be done first and what must be done later.  That is not to say that the Administrator must not fulfil his obligation to perform the duty of the public officer of maintaining a register of members under s 58.  He must.  But his evidence indicates that he is aware of that obligation, and is in the process of fulfilling it.

37                  The declaratory orders sought about the Registrar’s obligations are general and unnecessary.  The Registrar’s powers and functions in relation to the administration are specified in the Act.  They are discussed in Registrar of Aboriginal Corporations v Barker (1998) 81 FCR 53 at 57.  The evidence reveals that the Registrar has sought periodic reports about the administration from the Registrar.  There is no need to declare that the Registrar should fulfil her prescribed functions and responsibilities under the Act.  There is nothing to suggest that that Registrar is unaware of those functions and responsibilities or is not conscious of the need to meet them.  The fact is simply that the applicants disagree with the Registrar about how she should do so.  Whilst the disagreement is understandable, it provides no jurisprudential basis for granting the relief sought.  The declarations seeking that the Registrar should cancel the appointment of the Administrator are based upon the Court finding that the Administrator is not conducting the administration in accordance with the appointment and is not addressing the matters raised in the reasons for the appointment.  I have concluded that, on the evidence, that premise is not made out:  see Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 355.  It is not necessary or helpful to declare in general terms that the Rules of the NAC continue to operate and to have effect to the extent that they are not inconsistent “with the administration”; there is no practical content in the formula proposed:  see e.g. Re Alcoota Land Claim No 146 (1998) 82 FCR 391 at 413. 

38                  Finally, as against the Registrar, the declaration sought that it will no longer be necessary to maintain the administration once a register of members is provided is also inappropriate.  It is anticipatory only.  It assumes that, when a register of members is provided, the purposes of the appointment will have been fulfilled.  That may or may not be the case.  That is a matter for the Registrar to determine upon all the circumstances at the relevant time.  It is certainly not the Administrator’s position at the time of the hearing that that was the only task remaining to be completed to meet the purposes of the appointment.

39                  I therefore decline to grant the relief sought against the Registrar.

40                  Mr Thackaberry has indicated that he and his staff have spent considerable time and effort ensuring the operational and financial viability of the College (it is not presently necessary to set out the details of that work) as well as investigating the financial management of NAC generally.  The work of investigating its financial management has required him to address internal management relationships, infrastructure issues, security issues, recording and reporting systems and controls, and its independent audit.

41                  He understood the extent of his terms of reference from the Registrar.  I have referred to them above.  Clearly they extend beyond the Administrator being required to establish a register of members of NAC and being satisfied that NAC is solvent.  The failure to comply with the Act and NAC’s Rules raises governance issues and reporting and accounting issues.  Clearly its financial interests and business activities (through WUT as well as the College) are extensive.  The report provided to the Registrar pursuant to s 68(2) as a forerunner to the appointment of the Administrator raised many issues.  That report was given to NAC with the Registrar’s notice under s 71(1).  The invoking of the reasons available under s 71(2)(d) and (f) by the Registrar provide some indication of the scope of the Administrator’s role.

42                  I am not persuaded that the Administrator is acting beyond his remit in the administration.  Whilst there is no doubt scope for the differing views as to the sequence in which he is undertaking the tasks and addressing the issues required of him, I do not think the applicants have shown that his intention is simply to manage the affairs of NAC for an indefinite period to the exclusion of its members.  That allegation was not put directly to him during his evidence, although the cross-examination went through a number of steps he had taken, or steps he might have taken and had not taken, to highlight the very strong differing views of the applicants about his priorities and the extent of his role.

43                  It is desirable to address specifically the issues concerning the register of members.

44                  The terms of reference required the Administrator to establish an up to date register of members and actively to seek out new members.  To the time of the hearing, that action had not been taken, although on the evidence it was imminent, that is within the next few months.  The Administrator had not processed a significant number of renewed applications for membership.  Nor had he responded to a request from persons claiming to be members of NAC to conduct a special general meeting, or to meet the members of its Governing Committee (as constituted at the time of his appointment).  His position was that the composition of the membership of NAC was uncertain and that he had not, by the time of the hearing, completed the work necessary to prepare a reliable and comprehensive register of its members.  He also declined to respond to the invitation of a former chairperson of the Governing Committee to meet and to address governance issues and to discuss possible constitutional amendments to its rules to avoid issues such as those which were of concern to the Registrar occurring in the future. 

45                  The isolation of the applicants, and apparently others, from that process is clearly deeply frustrating to them.  But, that is not a sufficient basis to grant relief against the Administrator.  He is confronted with circumstances in which, as he sees it, there is doubt about whether the process of admitting members to NAC was ever properly undertaken (as distinct from treating all resident Anangu as members) and so may need to start the preparation of a register of members from a basic point.  He has explained how he is going, and is to go, about that process.  His concern also informs his concern about calling any formal meeting of “members” of NAC because he has doubts about the status of most persons who would present themselves as members.  He may of course be wrong in those concerns, but until that issue is decided by him his reluctance to call a meeting of “members” is understandable.

46                  There is another reason why the Administrator has not yet completed a register of members, as required by s 75 and s 58(1).  Its form must be satisfactory to the Registrar.  Whether through oversight or other more pressing matters, the Administrator has not yet secured from the Registrar an approved form for the register of members.  That is being procured.

47                  A number of other matters raised by the applicants concerning the administration do not, at present, extend beyond disagreement with the Administrator’s actions.  However, during his appointment, he is charged under s 75 with conducting the affairs of NAC.  He is not put directly into the position of its Governing Council, but has the accountability regime imposed under Pt V of the Act.  The obligations of the former Governing Council imposed under Pt IV do not necessarily have to be followed by him, except to the extent that the Act imposes them on him (e.g. the preparation of a register of members under ss 75(1) and 58(1)).  Sections 73(c) and 77D indicate clearly that, upon the appointment of an Administrator, the then Governing Council ceases to have ongoing functions (as also s 75) and that a newly elected Governing Council is to undertake the functions prescribed in Pt IV when the appointment of an Administrator comes to an end.

48                  There is, in my judgment, no sufficient reason presently shown why any orders should be made against the Administrator.  I have indicated why I do not consider the obligation on a Governing Committee under ss 58, 58B and 59 should not directly impose parallel obligations on the Administrator.  There is not presently a foundation laid for any declaration that the Administrator should expeditiously address the terms of reference in his appointment; he is aware of that obligation.  He also acknowledges that it would be improper simply to plan long term to run NAC.

49                  In the course of submissions, other matters were canvassed regarding the College and the WUT, and more particularly the steps the Administration was taking or may be planning to take in relation to those areas of NAC’s activities.  I have not referred to that evidence in detail as some of it was of a commercially confidential nature.  That is not to suggest that there is, in that evidence, material indicating impropriety on the part of the Administrator or on the other hand impropriety on the part of the former Governing Committee of NAC.  It is simply that it is better not to expose material which is or may be commercially confidential if it is not necessary to do so to explain my reasons for decision.  I should, however, say that, on the evidence, I do not accept that the reasons for the appointment of an Administrator have already been fully addressed or that the Administrator is acting beyond his remit and simply intends to take over the management of NAC for the indefinite future.

50                  Accordingly, I do not propose to grant the applicants any of the relief which they presently seek.

51                  However, I intend to adjourn the application to a date to be fixed with liberty to any party to apply to bring it on for further hearing if that becomes necessary.  I should put a limit on that course of action.  I will allow that to be done to 31 July 2008.

52                  I do so because I am conscious of the depth of concern, and genuine concern, on the part of the applicants about the long term adverse effects of the administration upon the NAC and its enterprises.  There is good reason why the administration should be brought to an end in a timely fashion, unless there are significant ongoing issues.  The evidence suggested that there was a finite time which the Administrator would need to attend to the matters referred to in the terms of reference.  The alternative, namely simply dismissing the application, would simply expose the applicants to the need to re-apply for fresh orders and to repeat the preparation of much of the material now before the Court at greater expense.  The Registrar and the Administrator would not be disadvantaged by the course I propose to take, although at present I accept there is no reason apparent to me why the liberty to apply would be exercised by either of them.

53                  I will also set in place some orders for any issues of costs to date to be resolved.

ORDERS

54                  The orders of the Court are that:

1.                  The orders sought in paragraphs 1 and 2 of the application made on 1 December 2006 are refused.

2.                  The orders sought in paragraphs 1 to 10 of the revised orders proposed by the applicants in the course of the hearing are refused.

3.                  Under paragraph 3 of the application, the further hearing of the application is adjourned to a date to be fixed, with liberty to any party to apply upon reasonable notice by 31 July 2008 for further directions and for further hearing of the application.

4.                  The costs of the proceedings to date are reserved.

5.                  If any party seeks costs of the proceedings to date,

(d)               that party shall file and serve by 4 April 2008 a written submission setting out the orders that party seeks and the grounds thereof;

(e)                any party opposing any such application for costs should file and serve by 2 May 2008 a written submission setting out the grounds for such opposition;

(f)                 the Court will determine any such application for costs on the basis of the material in, and referred to in, the written submissions.

6.                  Liberty to any party to apply for further directions generally by 4 April 2008.

7.                  Time for filing and serving any notice of appeal from these orders shall run from 13 March 2008 pursuant to Order 52 rule 15(1)(a)(iii).

Associate: 

Dated:         7 March 2008