FEDERAL COURT OF AUSTRALIA

Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCA 370

THE COURT ORDERS THAT:

1.    The Application as filed on 24 February 2011 is dismissed.

2.    The Applicant is to pay the costs of the Respondents of and incidental to the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The Applicant (the Dunghutti Elders Council (Aboriginal Corporation) RNTBC) seeks declaratory and injunctive relief to restrain the Registrar of the Aboriginal and Torres Strait Islander Corporations from making a determination under s 487-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (“Act”).

2    The Applicant is a corporation incorporated under that Act. The Dunghutti people were formally recognised on 7 April 1997 by this Court as the native title holders of land at Crescent Head on the New South Wales north coast.

3    On 11 February 2011 the Second Respondent acting as a delegate of the First Respondent (the Registrar of Aboriginal and Torres Strait Islander Corporations) gave a notice to the Applicant pursuant to s 487-10 of the Act (“February Notice”). The February Notice called upon the Applicant to show cause why it should not be put under special administration under Division 487 of that Act. A response was invited by 28 February 2011.

4    The effect of the appointment of a special administrator is dealt with in Division 496 and includes the vacation of office of each director and each secretary of the corporation: s 496-1.

5    The response of the Applicant, by their legal representative Eddy Neumann Lawyers, was provided on 18 February 2011. The Applicant contended, inter alia, that the February Notice was invalid. The Australian Government Solicitor responded on behalf of the Respondents by letter dated 21 February 2011. Their position was that the notice was validly issued.

6    The present litigation was commenced by way of Application filed on 24 February 2011. Reservation was expressed at the outset of the hearing as to whether the Application as filed complied with Order 4 r 1 of the Federal Court Rules. Those Rules provide that the “grounds” of an Application may be “stated” in an accompanying affidavit. In the present proceeding the “grounds” to be relied upon were sought to be identified by reference to a letter which was in turn annexed to an affidavit. The Applicant’s Outline of Submissions in part set forth submissions and in part again sought to incorporate the “grounds” as set forth in the letter. Such a circuitous identification of the “grounds” being advanced by an applicant is not to be encouraged.

7    The jurisdiction of the Court that was invoked was that conferred pursuant to s 39B(1) of the Judiciary Act 1903 (Cth). No reliance was placed upon ss 5 or 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The Aboriginal and Torres Strait Islander Legislation

8    The Preamble to the Act states that the Act is “An Act to provide for Aboriginal and Torres Strait Islander corporations, and for related purposes”. Section 1-25 sets forth the objects of the Act as follows:

The objects of this Act are to:

(a)    provide for the Registrar of Aboriginal and Torres Strait Islander Corporations; and

(b)    provide for the Registrar’s functions and powers; and

(c)    provide for the incorporation, operation and regulation of those bodies that it is appropriate for this Act to cover; and

(d)    without limiting paragraph (c) – provide for the incorporation, operation and regulation of bodies that are incorporated for the purpose of becoming a registered native title body corporate; and

(e)    provide for the duties of officers of Aboriginal and Torres Strait Islander corporations and regulate those officers in the performance of those duties.

9    Part 2-2 deals with applications for the registration of an Aboriginal and Torres Strait Islander corporation, and Part 2-3 deals with decisions on applications. Part 2-5 deals with the “effects of registration” and Part 3-2 addresses “rules dealing with the internal governance of corporations”. The “Rule Book” of the Applicant, it may presently be noted, sets forth the objectives of the Applicant as follows:

3    Objectives

The objectives of the corporation are:

(a)    to bring together the Dunghutti people for the purpose of making decisions and acting on any matters affecting the Dunghutti people;

(b)    to coordinate the native title claims of the Dunghutti people in relation to native title claims;

(c)    to liaise with neighbouring groups of Aboriginal people in relation to native title claims;

(d)    to become a registered native title body corporate in relation to native title claims made by the members of the Corporation, and as such:

(i)    to hold native title on trust for the Dunghutti people;

(ii)    to deal with native title in accordance with the wishes of the Dunghutti people;

(iii)    to hold compensation paid in relation to native title for the Dunghutti people;

(iv)    to act as agent for the Dunghutti native title holders where no trustee is appointed; and

(v)    to perform the prescribed functions of a registered native title body corporate under the Native Title Act 1993.

(e)    to advance the education, health, welfare and self-determination of the Dunghutti people in any manner agreed by the members.

In addition to the objective in Rule 3(d)(iii), Rule 19 further imposes constraints upon the manner in which monies received may be dealt with as follows:

19.1    Resolutions affecting native title rights and interests

(a)    Where the corporation holds:

(i)    native title to land as trustee for the native title holders; or

(ii)    compensation moneys paid in relation to native title

resolutions which might affect the native title rights and interests or which involve the expenditure of any of the compensation money can only be made by the members in general meeting.

(b)    Notice of a general meeting at which such resolutions are to be considered must state that native title rights and interests or the compensation fund, as the case may be, may be affected by the resolution.

19.2    Procedure for consulting native title holders

The corporation must consult with, and obtain the consent of the common law holders before making a native title decision. Apart from these rules there is no special procedure for consulting with or obtaining the consent of any native title holders that is required for the performance by the corporation of its functions as a registered native title body corporate.

10    Of immediate relevance is Division 487 within Part 11-2 of the Act which is headed “Special administration of Aboriginal and Torres Strait Islander corporation”.

11    Within that Division, s 487-1 provides as follows:

Registrar may put Aboriginal and Torres Strait Islander corporation under special administration

(1)    The Registrar may determine, in writing, that an Aboriginal and Torres Strait Islander corporation is to be under special administration for the period specified in the determination.

(2)    A determination under subsection (1) is not a legislative instrument.

(3)    The Registrar:

(a)    must not make a determination under subsection (1) if:

                                         (i)    the corporation is being wound up; or

                                         (ii)    a liquidator of the corporation has been appointed; and

(b)    may make a determination under subsection (1) even if the corporation is being administered under Part 5.3A of the Corporations Act (as applied by section 5211 of this Act).

(4)    The Registrar may make a determination under subsection (1) only if the Registrar is satisfied that at least one of the grounds set out in section 4875 is satisfied.

(5)    The Registrar must make a determination under subsection (1) in accordance with section 48710.

12    Section 487-5 sets forth the grounds upon which such a decision may be made and s 487-5(1) provides as follows:

Grounds for special administration

The following are the grounds for determining that an Aboriginal and Torres Strait Islander corporation is to be under special administration:

(a)    the corporation has traded at a loss for at least 6 months during the period of 12 months before the determination is made;

(b)    the corporation or the officers of the corporation have failed to comply with, or to ensure that the corporation complies with, one or more of the following;

(i)    a provision of this Act;

(ii)    an internal governance rule of the corporation;

(iii)    a notice that the Registrar has given the directors under section 439-20;

and the corporation has, or the officers have, failed to give the Registrar a satisfactory explanation for the failure;

(c)    the corporation has failed to comply with an obligation under Part 7-3;

(d)    the officers of the corporation have acted in the affairs of the corporation:

(i)    in their own interests rather than in the interests of the members of the corporation as a whole; or

(ii)    in a way that appears to be unfair or unjust to members of the corporation;

(e)    the affairs of the corporation are being conducted in a way that is:

(i)    oppressive; or

(ii)    unfairly prejudicial to, or unfairly discriminatory against, a member or members of the corporation; or

(iii)    contrary to the interests of the members of the corporation as a whole;

(f)    disputes between:

(i)    the corporation’s members; or

(ii)    the corporation’s members and the corporation’s officers;

are interfering with the proper conduct of the corporation’s affairs;

(g)    disputes between the corporation’s officers are interfering with the proper conduct of the corporation’s affairs;

(h)    a majority of the corporation’s directors have requested the Registrar in writing to appoint a special administrator;

(i)    at least the required number of members under subsection (4) request the Registrar, in writing, to appoint a special administrator;

(j)    the appointment of the special administrator is otherwise required:

(i)    in the interests of the members of the corporation; or

(ii)    in the interest of the corporation’s creditors; or

(iii)    in the public interest.

Paragraph (j) does not limit any of the other paragraphs in this subsection.

13    Section 487-10 provides for the giving of a show cause notice and provides in part as follows:

Show cause notice procedure

(1)    Subject to subsection (2), the Registrar must, before determining that an Aboriginal and Torres Strait Islander corporation is to be under special administration:

(a)    give the corporation notice in writing inviting the corporation to show cause, within a reasonable period specified in the notice, why the determination should not be made; and

(b)    consider any representations the corporation makes to the Registrar within that period.

(2)    Subsection (1) does not apply if the Registrar is satisfied that the determination needs to be made as a matter of urgency to prevent:

(a)    a likely loss of property of the corporation; or

(b)    a likely loss of public money held or administered by the corporation; or

(c)    conduct that would contravene:

(i)    a provision of this Act or the regulations; or

(ii)    a law of the Commonwealth or a State or Territory; or

(d)    the corporation ceasing to provide, or suspending the provision of, services that are essential to, or very significant for, a particular community or group.

The Facts in Outline

14    The February Notice was the second notice issued to the Applicant by the Second Respondent. The February Notice was preceded by an earlier letter, dated 31 January 2011. That earlier letter stated that the Second Respondent was “considering putting your corporation under special administration”. A notice to show cause under s 487-10(1) was annexed to that letter (“January Notice”).

15    Solicitors acting on behalf of the Applicant responded by way of letter dated 8 February 2011. That letter asserted that the January Notice was “invalid” and advanced detailed criticism as to the form and content of the notice.

16    The Office of the Registrar of Indigenous Corporations responded on 11 February 2011. Although not accepting “the correctness of any of the propositions contained in your letter concerning the validity or effectiveness of the notice”, the Applicant was advised of the decision “to withdraw the notice dated 31 January 2011”.

17    It was against this immediate background that the letter from the Second Respondent dated 11 February 2011 and the further February Notice to show cause emerged.

18    The Second Respondent again advised that he was “considering putting your corporation under special administration under Division 487” of the Act. Before doing so, the delegate advised that the Act required him to “to give the corporation an opportunity to show me why I should not take this action”. The February Notice issued under s 487-10 was attached and the letter further advised that the “notice sets out in detail all of the matters that are of concern to me”. The corporation was invited to show cause by 28 February 2011.

19    The February Notice was a detailed document of some 15 pages in length. The February Notice stated that “the grounds that I consider may exist to enable the making of … a determination” were (in summary form):

    a failure by the Applicant or its officers to comply with a provision of the Act or its own internal governance rules (s 487-5(1)(b));

    that officers of the Applicant had acted in their own interests rather than in the interests of the members of the corporation as a whole or in a way that appeared to be unfair or unjust (s 487-5(1)(d));

    that the affairs of the Applicant were being conducted in a manner that was oppressive or contrary to the interests of the members of the corporation as a whole (s 487-5(1)(e));

    that disputes between the Applicant’s members and officers were interfering with the proper conduct of the Applicant’s affairs (s 487-5(1)(f)); and

    that the appointment of a special administrator was otherwise required in the interests of the members of the Applicant or in the public interest (s 487-5(1)(j)).

The sections of the Act referred to were identified at the commencement of the February Notice and there was thereafter set forth the detail of the facts relied upon by the Second Respondent as delegate.

20    The solicitors acting on behalf of the Applicant responded to the February Notice with the 18 February 2011 letter. Again, the validity of the notice was called into question. However, unlike the January Notice, this time no decision was made to withdraw the notice. It is the validity of the February Notice which is now before this Court.

The Grounds of the Application

21    The Application as filed in this Court on 24 February 2011, and as explained in the Applicant’s Outline of Submissions, contends that the February Notice is invalid by reason of a number of generally expressed grounds of review, characterised by Senior Counsel on behalf of the Applicant as “procedural points”. These “procedural points” were summarised as being:

    a denial of procedural fairness;

    a failure to afford a “reasonable opportunity” to respond; and

    an apprehension of bias.

If any of these grounds were made out, the Applicant contended that the February Notice was invalid and that there should be no further consideration given to placing the Applicant under special administration. In addition to these grounds, a series of further arguments were also separately addressed going to each of the grounds of s 487-5(1) that had been identified in the February Notice. If any of these arguments were to prevail in respect to one or other of those grounds, it was contended that there should be no further consideration given to that ground or grounds.

22    As with many judicial review cases, individual grounds of review relied upon may tend to overlap. One particular aspect or set of facts may be relied upon to support one of a number of grounds of review. The present Application is no exception.

23    The Respondents submit that none of the grounds or challenges to the February Notice should be sustained but also further submit that relief should be refused – even if one or other of the arguments of the Applicant should otherwise prevail.

24    The onus of making out a ground of review in judicial review proceedings remains, of course, upon the applicant seeking relief: Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; Sagar v O’Sullivan [2011] FCA 182 at [41] per Tracey J. The onus of establishing the factual foundation for an alleged denial of procedural fairness thus also lies on the party alleging the breach: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]. Hill, Sundberg and Stone JJ there regarded it as “trite law that the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness lies on the party alleging the breach…”. See also: Jones v Ekermawi [2009] NSWCA 388 at [39] per Sackville AJA (McColl JA and Handley AJA agreeing); SZNOT v Minister for Immigration and Citizenship [2010] FCA 105 at [10].

25    The Application is to be dismissed.

Procedural Fairness

26    The Applicant’s contention was that an exercise of the power to issue a show cause notice pursuant to s 487-10(1) attracted a requirement to comply with the rules of procedural fairness and that such rules had not been met. A denial of procedural fairness by reason of an alleged failure to disclose factual materials relied upon by the delegate, it was contended, rendered invalid the February Notice which had been issued.

27    Any requirement to comply with the rules of natural justice – or procedural fairness, as it has now become known – was not put in issue. As with many cases, the real matter in dispute between the parties was not any requirement to proceed in a procedurally fair manner but rather the content of any such requirement and whether a respondent has in fact conducted itself in a procedurally unfair manner.

28    Little attention was directed by the Applicant, however, to whether the source of any requirement for a notice to show cause to itself contain details of those matters in respect to which submissions were sought was to be found in s 487-10(1) or in the common law (cf. Stewart v Ronalds [2009] NSWCA 277 at [70], 76 NSWLR 99 at 115 per Allsop P). In Kioa v West (1985) 159 CLR 550 at 582, Mason J formulated the circumstances in which the common law imposed a requirement of procedural fairness as follows:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

His Honour also later observed:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention: [(1985) 159 CLR 550 at 584]

It is this formulation that was applied by the Full Court of this Court in Huddleston v Aboriginal Land Commissioner [2010] FCAFC 66 at [36], 184 FCR 551 at 560 to 561 per Keane CJ, Spender and Barker JJ.

29    In the present proceeding it seems to have been assumed that the issuing of a notice to show cause affected some right, interest or legitimate expectation of the Applicant. But whether that assumption was beyond question need not be resolved. Perhaps the source of any requirement to afford procedural fairness mattered little.

30    On one view, s 487-10(1) necessarily itself contained an implication that a notice would set forth at least such materials as put a recipient in a position whereby meaningful “representations” could be made in response. There would be little point in the legislature imposing a requirement to provide “notice in writing inviting the corporation to show cause” and a requirement to “consider any representations the corporation makes” if the corporation was also not provided with sufficient notice of the factual and legal issues under consideration.

31    Whether any such implication imposed a lesser standard than may otherwise have been imposed by the common law rules of procedural fairness, however, was not a question pursued in submissions or presently in need of resolution. The position of Senior Counsel for the Respondents was that – whatever the source of any requirement of disclosure – it had been satisfied.

32    The case for the Applicant was that the delegate had in fact available to him materials and documents which he took into account but had failed to make these materials and documents available to the Applicant. Examples of such non-disclosure, it was said, could be found in the non-disclosure of:

    an examination report prepared in October 2008 and submitted to the Registrar;

    complaints and letters from members written in 2008 and 2010; and

    a number of “extraneous documents”.

33    This ground of challenge is rejected. It faces a number of difficulties.

34    First, irrespective of whether the requirement of disclosure is to be found by way of implication in s 487-10(1) or in the common law rules of procedural fairness, it is considered that the requirement is satisfied where the “substance” of the legal and factual concern is disclosed. There is no requirement that the documents or other material relied upon need necessarily also be disclosed. Thus, in the context of procedural fairness, in M61/2010E v The Commonwealth [2010] HCA 41 at [91], 272 ALR 14 at 36 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that “procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims”. The “precise detail of all matters upon which” a decision-maker intends to rely need not necessarily be disclosed: McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 601 per Toohey, Wilcox and Spender JJ. See also: Karina Fisheries Pty Ltd v Evans (Unreported, Federal Court of Australia, Forster J, 1 July 1988).

35    In some circumstances the disclosure of the actual documents or other materials relied upon may be necessary if a person is to be put in a position where he can adequately respond. But such is not the present case. The February Notice identified both the provisions of s 487-5 which were under consideration and the factual substance of the concerns of the delegate.

36    Second, and if the letters of complaint be presently left to one side, the Applicant adduced no evidence as to not having the materials relied upon by the delegate available to him. And, as pointed out by Senior Counsel for the Respondents, materials were in fact made available. A footnote to the February Notice thus stated:

A copy of the examination report has been provided to Ruth Campbell, Mary-Lou Buck and the corporation’s solicitor.

Extracts from the examination report had also been provided at an earlier date. In June 2010, a telephone call took place between Ms Campbell and the Office of the Registrar of Indigenous Corporations. An extract of the examination report was then provided “as requested”. The extract provided included those parts of the examination report that were later set forth in the February Notice although the delegate when issuing the notice did say that the examiner had stated the matters thereafter set forth “amongst other things”.

37    Moreover, and in the absence of any evidence as to any particular difficulty being experienced by the Applicant in responding to the February Notice, it would appear that at least some of the matters of concern addressed in the notice had previously been the subject of correspondence and meetings extending back over a period of years. Without being exhaustive, Senior Counsel for the Respondents pointed to correspondence extending back to at least 2009 which referred to meetings focussing attention upon the manner in which applications for membership of the Applicant were resolved and the time being taken to resolve such applications.

38    There was thus reason to question any assumption that the Applicant may not have been in possession of some or indeed a great part of the materials relied upon by the delegate of the Registrar.

39    Insofar as the letters of complaint were concerned, it may be that reliance upon s 604-10 as a reason for not disclosing the identity of the complainants may have been misplaced. But that matters not. The issue that the Applicant was being called upon to answer was the fact that complaints had been made and not the substance of those complaints. And, to the extent that the substance of the complaints may have been relevant to making “representations”, the substance of those complaints was disclosed in considerable detail.

40    What further information or materials needed to be disclosed before affording the Applicant a meaningful opportunity to respond to the notice to show cause nevertheless remained elusive. Further materials may well have been capable of being provided to the Applicant, but the failure to provide such further materials did not occasion any procedural unfairness.

41    The case advanced on behalf of the Applicant was that it should not be required to scour years of documents with a view to identifying the documents or other materials that may have been relied upon by the delegate; it was for the delegate to identify those documents or other material and make them available.

42    But it was enough for the substance of the concerns of the delegate to be made known. The material, identified in the Applicant’s Outline of Submissions as “extraneous documents”, was extensive. How far those “extraneous documents” fell short of requiring the delegate to disclose the entirety of his file is not known. Clearly enough, not every document need be disclosed: Billabong Aboriginal Corporation v Registrar of Aboriginal Corporations [2007] FCA 1496, 100 ALD 42. A notice to show cause had there been issued under s 71 of the Aboriginal Councils and Associations Act 1976 (Cth) calling upon the applicant to show cause why an administrator should not be appointed. Declaratory and injunctive relief was sought precluding the Registrar from appointing an administrator “without first providing Billabong with access to the Registrar’s entire file of documents and correspondence ‘relating to the applicant’”: Billabong at [7]. In discussing the principles to be applied to his decision, Jacobson J said:

[37] Plainly enough, the effect of s 71 of the Act and the applicable transitional provisions of the CATSI Act is that Mr Armstrong, as the relevant delegate, must be satisfied, after considering the material before him and the submissions or representations made by Billabong, that the grounds referred to in the Act have been established.

[38] It is almost trite law that the rules of procedural fairness entitle a person in Billabong’s position to know the grounds upon which Mr Armstrong proposes to rely and an opportunity to respond to matters adverse to its interests: Kioa v West 159 CLR 550 at 585, 628; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [140], [191].

[39] This does not mean that every piece of information and every document that comes before the decision-maker must be disclosed. The test to be applied in the ordinary case is that stated by Brennan J in Kioa v West at 629 in the words referred to above, namely that the person affected should be given an opportunity to … deal with adverse information that is credible, relevant and significant: see also Miah at [140], [191].

His Honour further observed:

[40] Where there is credible, relevant and significant material before the decision-maker, it will not ordinarily be sufficient for the decision-maker to disavow reliance upon it. The significance of the material is to be determined leaving aside the disavowal, but a merely theoretical possibility of prejudice to the person affected will not be sufficient to require disclosure.

[41] What underlies these principles is the real risk of prejudice to the person affected by the subconscious influence of non-disclosed material, albeit that reliance is expressly disavowed by the decision-maker.

His Honour ultimately concluded that no question of the application of this principle arose on the facts before him as all of the documents had been provided to the applicant.

43    Other than with the possible exception of the complaints, it is perhaps regrettable that the delegate did not see fit to disclose the materials he had relied upon and thereby avoid (at least potentially) one basis upon which his decision was challenged. Why he did not pursue such a course was not explained.

44    In the present proceeding the conclusion is nevertheless reached that the February Notice did set forth the legal and factual issues under consideration by the delegate in sufficient detail to enable the Applicant to make meaningful “representations”. No procedural unfairness arose by reason of any failure to provide further materials or the entirety of all of the documents referred to in the notice. Recourse to the documents or other materials that were before the delegate was not necessary in order for the Applicant to respond to the detailed concerns that were set forth in the February Notice. There is no reason to conclude that the delegate went beyond the information set forth in the February Notice when expressing the concerns there set forth.

45    It will be recalled that “[w]hether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context”: Habib v Director-General of Security [2009] FCAFC 48 at [77], 175 FCR 411 at 430 per Black CJ, Ryan and Lander JJ. The obligation is a practical one: Habib at [77]. As was also the case in Busby v Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463 at 471 to 472, the “substance” of the matters to be addressed had been disclosed and there was nothing to suggest that there was anything lacking in the ability of the Applicant to fully respond to the matters identified in the notice to show cause.

46    The onus cast upon the Applicant of making out a case of any denial of procedural fairness was not discharged.

Insufficient Time?

47    Section 487-10(1)(a) requires the Registrar to “give to the corporation a notice in writing inviting the corporation to show cause, within a reasonable period specified in the notice, why the determination should not be made”. Unlike other Commonwealth statutory provisions, s 487-10(1)(a) does not specify a period (for example) “not exceeding 30 days”: Telecommunications Act 1997 (Cth) s 518; Broadcasting Services Act 1992 (Cth) s 180. Other statutory provisions require a response to be provided within a period specified or, if no period is specified, within a “reasonable period”: Migration Act 1958 (Cth) ss 58, 121 and 359B. Yet other provisions may require a response “within a period that the Minister believes is a reasonable period”: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 155. The meaning and content of each phrase is a meaning to be determined by reference to the statutory context in which it appears and the objects and purposes sought to be achieved by the particular legislation in issue.

48    In the present statutory context, s 487-10(1)(a) provides no express constraint upon the period in which a corporation is to show cause other than that it be a “reasonable period”.

49    The common law, it may also noted, imposes a like requirement that a person be afforded a reasonable period of time in which to answer a complaint being made: eg, Lee v Department of Education and Science (1967) 66 LGR 211 (UK). In R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371 at 1375, Lord Widgery CJ observed:

To start with, nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings … is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.

See also: Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [24]; SZNSI v Minister for Immigration and Citizenship [2010] FCA 223 at [10].

50    The February Notice relied upon by the Registrar in the present proceeding was given to the Applicant on 11 February 2011 and the Applicant was invited to show cause why the determination should not be made by 28 February 2011.

51    The Applicant contended that such a period of time was not “a reasonable period” for the purposes of s 487-10(1)(a).

52    A “reasonable period”, it is considered, is a period which is to be objectively determined and the period of time prescribed in a notice is not conclusive: Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91, 160 FCR 465. A notice had there been issued under the Aboriginal Councils and Associations Act 1976 (Cth). The notice was given to an Aboriginal corporation on 11 July 2006 calling upon it to show cause by 12 July 2006. Gyles and Edmonds JJ (with whom Buchanan J agreed) concluded that the reasonableness of the time was not to be determined by the Registrar. In so concluding their Honours said:

[20] … The words of the section are “within a reasonable period specified in the notice”. There is no proper basis put forward for reading that phrase as giving the Registrar the power to determine what is a reasonable period. The fact that the Registrar specifies the period does not establish the reasonableness of it. The reasonableness of the period of notice is a statutory condition to be objectively determined. The question was not whether it was reasonably open to the Registrar to set the period he did or whether the period was so manifestly unreasonable that no reasonable decision-maker could have made such a decision …

Their Honours further concluded as follows that what constituted a “reasonable period” was a question of fact:

[21] The question of reasonableness of the period was a question of fact for the primary judge, subject to such limited role for respect for, or deference to, an administrative decision that is permitted according to the discussion by Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [39]–[50]. As it happened, he addressed and decided that question, unfavourably to the appellant. The appellant, thus, has the formidable task of displacing a finding of fact on what is, in any event, a matter of degree. There is no one reasonable period.

The notice and the appointment of the administrator were there held to be invalid.

53    In gauging what constitutes sufficient time to undertake a task, reference must necessarily be had to the tasks required to be undertaken: Balmain Association Inc v Planning Administrator for the Leichardt Council (1991) 25 NSWLR 615. Section 55(1) of the Environmental Planning and Assessment Act 1979 (NSW) there provided that the Minister could direct a Council “to perform any function conferred or imposed on it … within such time… as is specified in the direction”. The Minister gave to the Council a direction to perform certain functions in respect to draft local environmental plans within five weeks. Given the functions to be undertaken – including the need to obtain clarification of outstanding “issues”, the need to hold a public hearing and the need to give notice of such a hearing – five weeks was held to be “manifestly unreasonable”.

54    When resolving this question of fact, reservation is expressed as to the extent to which any “deference” should be given to the author of a show cause notice. The extent to which “deference” should generally be extended to the views of an administrator has, of course, attracted some degree of attention.

55    In the United States, it has been said that “federal judges – who have no constituency– have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones”: Chevron USA Inc v Natural Resources Defense Council Inc, 467 US 837 at 866 (1984). Subsequent decisions have concluded that no deference should be given to an agency’s construction of a statute if the Congress had “unambiguously” expressed its intent: Food and Drug Administration v Brown & Williamson Tobacco Corp, 529 US 120 at 132 (2000). See also: Jellum, L. “Chevron’s Demise: A Survey of Chevron from Infancy to Senescence” (2007) 59 Administrative Law Review 725.

56    In Australia, and as cited by Gyles and Edmonds JJ in Guiseppe, Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 CLR 135 expressed the approach to be adopted in this Court as follows:

[47] The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning. A similar view appears to be taken by the Supreme Court of Canada.

See also: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [140], 197 CLR 611 at 655; Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 110 at [13] to [15], 169 FCR 202 at 206 to 207 per Emmett, Stone and Edmonds JJ.

57    For the purposes of the present proceeding, it is concluded that a determination as to what constitutes a “reasonable period” for the purposes of s 487-10(1)(a) involves a consideration of (inter alia):

    the number of issues raised in the show cause notice;

    the factual complexity of each of those issues;

    the need to assemble factual material if any “representations” are to be meaningful;

    the need for prompt action to be taken; and

    the need or desirability of obtaining independent legal or other advice.

The “reasonableness” of the period, it is further considered, may also be gauged by reference to:

    whether the recipient of a notice to show cause has requested further time in which to respond and the basis or base upon which such further time is sought; and

    the period of time in fact prescribed in the notice itself.

It is to be noted that s 487-10(1)(a) is not expressed in terms of such a period of time as the Registrar “reasonably believes” to be an appropriate period of time. The manner in which s 487-10(1)(a) is in fact drafted, it is considered, only serves to emphasise the objective nature of the inquiry required when determining what constitutes a “reasonable period”.

58    The February Notice as given to the Applicant was certainly a detailed document – it made reference to five of the grounds identified in s 487-5(1) as being “grounds” upon which a determination could be made that a corporation was to be placed under special administration. And the factual material relied upon in support of each of those five grounds also involved a degree of detail.

59    But there was no reason upon the face of the notice why a period of over two weeks was not a “reasonable period” within which to respond. Notwithstanding the detail contained within the notice, the issues themselves to be addressed by the Applicant considerably overlapped. They were within a confined compass and were manageable and could have been the subject of submissions within the period permitted. The Applicant never sought from the delegate further time within which to respond or raised with the delegate any particular issue which may have required an extension of time. The response of the Applicant was not that it required further time within which to respond; its response was to assert the invalidity of the notice.

60    Reinforcing the conclusion otherwise reached that the period of time permitted was a “reasonable period” is the fact that the delegate’s concern as to the expenditure by the Applicant of limited funds was a matter which could have been – and should have been – the subject of prompt response. The February Notice thus drew to the attention of the Applicant the fact that for “the 2008/09 and 2009/10 financial years the corporation spent a total of $881,080 on legal costs” and that such expenditure “amounted to 50.8% of the corporation’s total expenditure”. This was a concern presumably informed by reference to the constraints imposed upon the use of the Applicant’s monies by both the Objectives and Rule 19 of the Applicant’s own Rule Book.

61    In resolving the question as to what constitutes a “reasonable period”, one of the factors to be taken into account is the period of time fixed by a notice to show cause. But that is just one of the factors to be taken into account. In the present statutory context, there is considered to be no reason to give this particular fact any greater weight – or “deference” – by reason simply of it being the time the author of the notice considered appropriate. Perhaps the delegate’s assessment as to potentially competing policy considerations relevant to fixing the time to be permitted may attract different issues. But that matter need not be further pursued.

62    The argument that there has been non-compliance with s 487-10(1)(a) by reason of the February Notice not providing a “reasonable period” within which to respond is rejected.

Apprehended Bias

63    The argument that there was a reasonable apprehension of bias was variously expressed.

64    However expressed, the principles to be applied are nevertheless comparatively well-settled.

65    It may thus be accepted that an allegation as to a reasonable apprehension of bias must be “firmly established”: Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J. It is not sufficient if a reasonable bystander merely “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission [2002] FCA 1054 at [100], 76 ALD 424 at 441 per Weinberg J. An appeal from this decision was allowed, but no reservation was expressed by the Full Court as to His Honour’s observations in respect to the allegation as to bias: Jones v Australian Competition and Consumer Commission [2003] FCAFC 164, 131 FCR 216. See also: Reece v Webber [2011] FCAFC 33 at [45].

66    What is required of an administrator is that he retains a mind open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [71] to [72], 205 CLR 507 at 531 to 532 per Gleeson CJ and Gummow J. It is equally well-accepted, however, that an administrative decision-maker need not approach his task with a “blank mind”. In Jia Legeng, Gleeson CJ and Gummow J observed:

[71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias …

[72] ... The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (footnotes omitted)

See also: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 to 554 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 at [599], 148 FCR 446 at 591 per Weinberg J.

67    Within these constraints, it was contended on behalf of the Applicant that a reasonable apprehension of bias arose by reason of the failure to address in the February Notice submissions which had been made in response to the earlier January Notice. The Applicant’s response to the January Notice, by way of its 8 February 2011 letter, was said to contain “incontrovertible facts”. These facts centred upon submissions made in that letter in respect to:

    the expenditure of monies on legal costs;

    proceedings that had been dismissed in the Administrative Appeals Tribunal;

    “the sequence and content of correspondence following” a meeting held in July 2010; and

    “the refusal of NTSCorp to make available to DECAC directors genealogical material …”.

68    As explained in its Outline of Submissions, the Applicant’s contention was that the notice now under challenge:

… did not amend the statement of facts to remove the errors and omissions in the 31 January notice which had been drawn to his attention. The failure to include in the recitation of the facts in the 11 February notice incontrovertible facts favourable to the applicant indicates that the second respondent had already made up his mind. Consequently, a reasonable observer might conclude that the second respondent is not open to persuasion and, therefore, might not make an impartial decision.

The argument thus focussed upon a reasonable apprehension of bias arising out of the fact that the February Notice now under challenge failed to include a recitation of “incontrovertible facts” or failed to address in greater detail submissions previously advanced.

69    Two of these “incontrovertible facts” received particular attention during the course of oral submissions.

70    By way of example, oral submissions focussed particular attention upon the statements made in both the January Notice and the February Notice concerning the expenditure of monies on legal fees. The 8 February 2011 letter addressed these statements made in the January Notice as follows:

15.    Given the admission earlier in section 2.2.1 and the fact that the identified period (2008/2009 and 2009/2010) included the time when DECAC’s legal advisers were involved in drafting the new constitution and in intense and lengthy negotiations with the State government which resulted in the payment to DECAC of $6.1 million, that conclusion, which is unqualified as to any particular proportion of the legal costs, is an extraordinary statement to make and a completely unsupportable conclusion to reach.

16.    Had the Registrar requested DECAC to provide details of the legal costs he would have been made aware of the precise break-up of the legal costs, including how much was attributable to constitutional matters and to gaining for the Dunghutti people the $6.1 million paid by the State. He would have also realised that the costs incurred in the year ending 30 June 2010 included legal work going back for a number of years before that. Had the facts been ascertained, the embarrassing, unqualified conclusion in the second last dot point in section 2.2.1, based as it is on an unfounded assumption, could have been avoided.

Notwithstanding this submission, the February Notice remained in substantially the same terms as the earlier January Notice.

71    The submission now advanced was that the failure to qualify the statements previously made evidenced “a mind … so prejudiced in favour of a conclusion already formed that he will not alter that conclusion irrespective of the evidence or arguments presented …”. The submission was that the February Notice should have been re-worded so that the statement previously made was prefaced by (for example): “A part of the significant legal expenditure …”.

72    The argument is rejected for a number of reasons.

73    First, the very purpose of a notice issued under s 487-10(1) is to put a corporation on notice as to the concerns that may warrant placing a corporation under special administration and affording the corporation an opportunity to make “representations” before a decision is made. If a corporation is of the view that some facts are “incontrovertible”, it may make that very point in its “representations”. The mere fact that a delegate has had that submission previously advanced in respect to a notice that is said to be invalid, does not preclude the giving of a subsequent notice repeating facts as previously stated. The delegate may or may not regard the facts as “incontrovertible”. The repetition of the same facts in the February Notice now under challenge, it is considered, would not lead a hypothetical bystander to believe that the delegate did not have an open mind.

74    The fact that there are differences between the January Notice and the February Notice, and hence a conclusion that the delegate accepted some comments but not others, does not lead to any apprehension that further submissions would not be entertained and genuinely considered. A primary objective of the 8 February 2011 letter was to seek to have the January Notice set aside. The letter achieved that objective. But matters of concern to the delegate obviously remained. And, as pointed out in the 8 February 2011 letter, the Applicant had available to it (for example) “details of the legal costs”. Had that information been provided, there may or may not have been a revision of the terms in which the later February Notice was expressed. But no “details” were provided. The February Notice simply maintained the concern previously expressed and again extended an opportunity to the Applicant to make “representations”, including an opportunity to provide the very “details” not yet provided. Although a party is entitled to maintain a position as to the legal ineffectiveness of a notice, it is not considered that any hypothetical bystander would conclude that the delegate was biased by reason of his repeating a concern which had previously not been addressed on its merits when it could readily have been addressed. So informed, the bystander may well question why the information was not provided; but he would not conclude that the delegate had closed his mind to any further consideration.

75    The recognition that a decision-maker need not approach his task with a “blank mind” assumes more importance in the present context where there is a statutory requirement to issue a notice to show cause and thereafter a requirement to “consider any representations the corporation makes to the Registrar” (s 487-10(1)(b)). Before issuing a notice to show cause, a view must necessarily have been formed that there is a sufficient legal and factual basis upon which such a notice should be issued. The withdrawal of one notice to show cause and the issue of a subsequent notice, in the circumstances of the present case, says little other than that there remained a continuing concern as to the conduct of the Applicant. A submission successfully advanced as to the invalidity of a notice cannot preclude the giving of a subsequent notice; nor can such a submission generate in itself a reasonable apprehension of bias if previously expressed concerns are maintained – especially where the submission withholds relevant and readily available information.

76    Nor is the manner in which the delegate addressed in the February Notice the potential relevance of the proceedings in the Administrative Appeals Tribunal the source of any reasonable apprehension of bias. The Tribunal, it may briefly be noted, had been called upon to review a decision of a delegate of the Registrar refusing to register a document titled “Notification of a change to corporation officers’ details”. There was a dispute between two groups of people who sought to be registered as directors. After two interlocutory hearings, a point of time had been reached when the period of appointment of the elected directors had expired. The Tribunal dismissed the proceeding pursuant to the power granted by s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) as being “frivolous or vexatious”: Re Mumbler; Registrar of Aboriginal and Torres Strait Islander Corporations [2009] AATA 786. Given the lack of utility in resolving an application only having arguably historical significance, the order of the Tribunal was hardly surprising.

77    The potential relevance of the Tribunal decision to a determination to be made under s 487-1 was addressed in the February Notice in section 2.1.4 under the heading “Members’ concerns regarding the governance of the corporation and AAT proceedings”. A principal concern addressed in the notice was again the cost of legal services being incurred. The February Notice thus stated:

On 14 October 2009 Mr RP Handley, Deputy President of the AAT dismissed the application for review of the Registrar’s decision and the disputes between certain members and the directors of the corporation continued. The corporation incurred significant legal costs during the AAT proceedings which are reflected in the 2008/09 and 2009/10 financial reports of the corporation. In those two financial years the corporation spent a total of $881,080 on legal costs (not all of which was related to the disputes or the AAT proceedings).

The cost of legal services to the corporation resulting from the disputes was noted by Mr RP Handley, Deputy President in the AAT proceedings at p12:

The time and costs involved in these proceedings continue to mount.

78    The failure to incorporate in the February Notice a reference to the role said to have been taken by the present Applicant in seeking to have the Tribunal proceedings quickly brought to an end and the ultimate dismissal by the Tribunal of the proceeding before it as “frivolous or vexatious”, does not provide any basis for a reasonable apprehension of bias. If the Applicant had considered it of relevance to make “representations” referring to its role in the Tribunal proceedings, and presumably “representations” seeking to emphasise its concern to minimise legal costs, it was free to do so. But the omission from the February Notice of a more extensive account of the proceeding before the Tribunal does not render the account in fact given misleading or so incomplete as to manifest any unwillingness on the part of the delegate to maintain an open mind and to genuinely consider any “representations” that may have been made. The purpose of the notice to show cause, it should be recalled, was not to set forth a complete account of past events; its purpose was to outline in as succinct a manner as appropriate the facts to be considered and to put the Applicant in a position to answer – if it wished to do so – the matters of concern to the delegate.

79    Nor do the other “incontrovertible facts” mentioned in the February Notice evidence any reasonable apprehension of bias. No support for any contrary conclusion is provided by British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2, 273 ALR 429. The nature of the comments which there founded a reasonable apprehension of bias, it is respectfully considered, are in no way comparable to the views expressed by the delegate in the January Notice and repeated in the February Notice.

80    One final aspect of the Applicant’s argument as to an apprehension of bias should be noted. This aspect concerns the extent of knowledge that should be imbued to the “informed bystander”. It was common ground that whether there was a reasonable apprehension of bias was to be judged by reference to the hypothetical informed bystander. Albeit in the context of considering a reasonable apprehension of bias and the need to ensure public confidence in the judiciary, in Johnson v Johnson [2000] HCA 48 at [12], 201 CLR 488 at 493 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated that the “hypothetical reasonable observer of the judge’s conduct is postulated in order to ensure that the test is objective …”. In other contexts this hypothetical observer has been referred to as “the fair-minded observer”: McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [72], 72 NSWLR 504 at 517 per Basten JA.

81    The extent of knowledge that Senior Counsel for the Applicant sought to attribute to the “informed bystander” in the present proceeding was extensive. As has been observed, the “knowledge to be attributed to this bystander may well significantly influence a conclusion as to whether any apprehension of bias is reasonable”: Reece v Webber [2011] FCAFC 33 at [55]. An informed bystander, at one extreme, who is informed by reference to all of the facts favourable to one conclusion, may well find any contrary conclusion unsatisfactory and may conclude that any such contrary conclusion could only be reached by a decision-maker affected by bias. But such an informed individual would necessarily cease to be a mere bystander and would certainly cease to be objective. He would be no more than an informed advocate of one party’s case.

82    In the present proceeding, it is considered that the hypothetical bystander should have attributed to him knowledge of the statutory context in which the notice to show cause has been issued, the content of both the January Notice and the February Notice, and the correspondence that those notices occasioned. So informed, he could then objectively determine – not the competing merits of the factual assertions being explored – but rather the question as to whether the delegate’s mind remained open to persuasion.

83    Rejected is the submission advanced on behalf of the Applicant that the bystander should also be imbued with knowledge of such matters as: negotiations which apparently took place in 2008/2009 with the New South Wales State Government and the payment of in excess of $6 million; the fact of the proceedings before the Administrative Appeals Tribunal and the decision of that Tribunal; and the “wider scene” including “what has happened” with New South Wales native title services. These were identified by Senior Counsel for the Applicant as being “some of the matters” to be attributed to the bystander.

84    It is concluded that such extensive knowledge should not be attributed to the hypothetical bystander. Any contrary conclusion (it should be recognised) may have the tendency for an argument as to an apprehension of bias being the occasion for a party to seek to adduce in judicial review proceedings evidence to support the factual accuracy of the knowledge sought to be attributed and an occasion for a prolonged and unnecessary review of the merits of a party’s case.

85    So informed, it is concluded that the hypothetical bystander in the present proceeding would have no concern as to the delegate’s mind being foreclosed to a proper and genuine consideration of any such “representations” the Applicant may make.

86    The argument as to an apprehension of bias is rejected.

No Evidence — Expenditure on Legal Costs

87    One matter which (not surprisingly) attracted the specific attention of the Applicant was the concern expressed in both the January Notice and the February Notice as to the expenditure of monies on legal costs.

88    The expenditure by the Applicant of considerable amounts of money on legal costs was a matter referred to in the February Notice on a number of occasions. It was, for example, referred to in section 2.1.4 when addressing the role of the Applicant in the Administrative Appeals Tribunal proceedings and was again referred to in section 2.2.1 in the context of the Applicant’s failure to comply with internal governance rules. Given the repeated references to this concern, it was readily understandable that Senior Counsel for the Applicant focussed specific attention upon these parts of the February Notice and did so by reference to different grounds of review.

89    The rejection of the Applicant’s submission that the repeated references in the January Notice and the February Notice as to expenditure on legal costs did not evidence a reasonable apprehension of bias nevertheless left unresolved a separate submission that such statements were based upon “no evidence”.

90    The statements in section 2.2.1 should be more fully set forth. The February Notice there stated in part as follows:

Section 2.2 – Potential failures to comply with the Act and the internal governance rules

2.2.1    section 265-(1)(1) of the Act (duty of care and diligence)

…

Potential failures

…

On the basis of the material available to me, I consider that the following conclusions are available to me :-

•    …;

•    The significant expenditure on legal costs by the corporation ($881,080 in 2008/09 and 2009/2010 and 50.8% of total expenditure) at the direction of directors is not in the best interests of the corporation and has not been made for a proper purpose.

The February Notice also referred in section 2.2.1 to “disputes relat[ing] to the governance of the corporation, including the use of its financial resources and the failure to deal with approximately 100 applications for membership from persons claiming to be Dunghutti people”. The notice there stated:

The corporation has incurred significant legal costs as a result of the disputes and for the financial year ended 30 June 2009 these costs contributed significantly to a trading loss (deficit) of $546,192. In the 2008/09 and 2009/10 financial years the corporation expended a total of $881,080 on legal costs. While it is not possible for the Registrar to determine how much of the total legal costs were incurred directly or indirectly as a result of the disputes, given the corporation’s historical expenditure on legal costs prior to the disputes and the proportion of total expenditure during the disputes (50.8%) I consider that a substantial proportion of the $881,080 was incurred as a result of the disputes.

Although these concerns were addressed in the context of those matters which fell within s 487-5(1)(b), the concerns were incorporated as matters relevant to the other provisions of s 487-(5) also relied upon in the February Notice.

91    The argument of the Applicant as to “no evidence” seemed to be that the statement:

    that it was “not possible… to determine how much of the total legal costs were incurred directly or indirectly as a result of the disputes…”

necessarily had the consequence that there was “no evidence” in support of the later statement that:

    the “significant expenditure on legal costs …. is not in the best interests of the corporation and has not been made for a proper purpose”.

92    Subject to reservation, it may be accepted as a general proposition that an administrative decision should be based upon material which is relevant to the decision to be made and logically probative: eg, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 337 per Burchett J; Sagar v O’Sullivan [2011] FCA 182 at [60] per Tracey J. The common law thus recognised that a decision-maker must base his decision “upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined”: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 per Diplock LJ. And the Administrative Decisions (Judicial Review) Act 1977 (Cth) in ss 5(1)(h) and 5(3) now expressly recognises a “no evidence” ground of review. But caution must be exercised “in considering administrative decisions impugned on the basis of ‘no evidence’ submissions and/or unreasonableness so as not to cross over into the prohibited area of merits review”: Hendy v Repatriation Commission [2002] FCA 602 at [58], 72 ALD 112 at 125 per Madgwick J. For subsequent proceedings not affecting this observation, see Repatriation Commission v Hendy [2002] FCAFC 424, 76 ALD 47.

93    Differences between the ground of “no evidence” at common law (and s 39B of the Judiciary Act) and under the Judicial Review Act initially received no attention in the submissions advanced on behalf of the Applicant. But the differences cannot be ignored: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, 148 FCR 446. Weinberg J there relevantly observed:

[574] In dealing with the no evidence ground, it must first be noted that there are differences, in respect of findings of fact, between judicial review under the common law, and review under the ADJR Act.

[575] Under s 39B of the Judiciary Act (which reflects the common law), the “no evidence” ground requires that there be simply no evidence or other material to justify the findings of fact made. Aronson suggests, at p 239, that “no evidence” means “not a skerrick of evidence”. If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356]:

So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

[576] The position under the ADJR Act is more complex …

Nor was there any examination of the application of any principle as to “no evidence” where the decision under challenge is a decision to issue a notice to show cause as opposed to a decision subsequent in any future decision-making process.

94    The outer limits of a ground of judicial review founded upon “no evidence” and the need for caution in the application of the ground, however, need not be explored in the present proceeding.

95    The argument is rejected.

96    Why the earlier statement in the February Notice as to the manner in which legal costs had been incurred would mean that the later conclusion would be based upon “no evidence” was not self-evident. The Applicant by this part of the notice was informed as to the sums said to have been incurred and to the difficulty being experienced in determining how much of the total had been “incurred directly or indirectly as a result of the disputes…”. If the Applicant wished to supplement the available factual material so that a more informed conclusion could be drawn, it was free to do so. Indeed, that was the very purpose of giving to the Applicant a notice to show cause.

97    Moreover, even if attention is confined to the information set forth in the February Notice, there would appear to be a more than sufficient factual basis upon which a concern could be expressed as to the expenditure of monies on legal costs. Even if attention is confined to the quantum of expenditure on legal costs and its percentage to total expenditure, the “conclusion” expressed in the notice was founded upon logically probative material.

Section 487-5(1)(b)

98    There were a number of discrete arguments as to the inability to rely upon s 487-5(1)(b) in the February Notice.

99    First, it was submitted that at least that part of the notice which purported to rely upon s 487-5(1)(b) was vitiated by reason of the failure in the notice to allege “that the corporation itself has failed to comply with a provision of the Act or the rule book”. Statements in the notice that it was merely “suspected” that the Applicant may have committed a breach, it was submitted, were insufficient.

100    A second argument was that the notice did not recite any prior request made by the Registrar “to give … a satisfactory explanation for the failure”. Without a prior request to explain, it was submitted that the Applicant could not be said to have “failed to give … a satisfactory explanation”.

101    It was also submitted that the course which should have been pursued was the seeking of a declaration of contravention pursuant to s 386-1 of the Act.

102    None of the arguments should prevail. Section 487-10(1) provides for the giving of a notice to show cause and s 487-5 provides the “grounds” upon which a determination may be made as to a corporation being placed under special administration. Neither s 487-10, nor any other provision that has been referred to, constrains the power to give a notice to show cause in the manner submitted by the Applicant.

103    Moreover, even if a prior request for an explanation was required, it is not at all clear that a request had not been made. Again the Applicant pursued a forensic course of trying to make out its own case by recourse to the Respondents’ records rather than simply providing its own evidence (if it wished to do so) that no “request” had been made. The manner in which a party may wish to make out its case remains, of course, a matter for its own judgment. But a “call” upon the Respondents was apparently made during the evening preceding final submissions for the production of any document recording any request for an explanation. In the time between the making of the call at 6.15 pm and the hearing the following day at 10.15 am one document could be found. Whether or not there were other documents that could have been provided, had greater notice been given, is unknown. The document produced was a copy of the Minutes of a meeting between the First Respondent and the Applicant’s directors and its legal advisors on 25 May 2010. It stated in part:

Registrar outlined some of the matters of concern that have been going on within DECAC for the last couple of years. These largely related to the admission of members and the cash burn rate at the corporation and the need to use the compensation for the long term benefit of all Dunghutti, rather than operational expenses of the corporation.

Directors commented about the concerns. They stated that they are going to use the money wisely for all Dunghutti, not for themselves. They are looking to secure new premises for the corporation: proper space so that they can hold their general meetings and not have to hire out facilities for this purpose. Also they are considering education funds and language revival programs.

Registrar started to discuss the ‘money story’ of the corporation, particularly the amount of cash that had decreased dramatically from 2008 to 2009 and liabilities increasing from almost $0 in 2007 to almost $80,000 in 2008. Also, discussions were had about the losses that began from 2004 (approx $4,000) to about $546,000 in 2009 and membership issues, particularly the genealogy of prospective members. Prior to 2004 the corporation made a profit each year.

RCM: spoke about the costs increasing for legal fees for when they were fighting the legal case against the other group.

“RCM” was a reference to a director of the Applicant, Ms Ruth Campbell Maruca. The reference to the “money story” was a reference to a column diagram showing (inter alia) expenditure.

104    In the face of such a document, any suggestion that the Applicant had not long known of the “matters of concern” seems difficult to sustain. The extent of prior knowledge of these “matters of concern” also undermines in part any allegation as to a denial of procedural fairness. And, even a separate argument that it was not being called upon – or “requested” – to provide an explanation is equally difficult to sustain. To contend that no “request” as such had been made for an explanation during the course of the meeting on 25 May 2010 is, with respect, to ignore the reality of what was happening. The Registrar was present at that meeting and explained the “matters of concern” presumably for the very purpose of soliciting a response from the Applicant.

Section 487-5(1)(d) and (e)

105    The argument as to s 487-5(1)(d) and (e) focuses upon s 487-5(2) and the constraint imposed by s 487-5(2) upon those provisions not applying to the “doing (or refraining from doing) a particular act” if the officer was acting:

    “in good faith”; and

    “with the belief that the doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation”.

106    It is submitted on behalf of the Applicant both that:

    the February Notice is invalid by reason of the failure in the notice to assert a lack of good faith and the absence of the requisite belief; and

    the “availability of s 487-(5)(1)(d) and (e) is dependent on the establishment as a jurisdictional fact that the officers … have done the act in question in the absence of good faith and in the absence of a belief that doing (or refraining from doing) the act is necessary to ensure that the corporation complies with a Native Title legislation obligation”.

Both arguments are rejected.

107    There is no express requirement in s 487-10(1) as to what may or must be asserted in a notice to show cause. It should not be subject to any constraint dictating what may or must be included. It remains open to a recipient of a notice to show cause to make “representations” either submitting that acts were being done (for example) in good faith (and providing evidence or other materials in support of such a submission) or to seek to impugn any final decision that may be made placing it into special administration on the basis that reliance has been wrongly placed upon s 487-(5)(1)(d) and/or (e).

108    Nor is it considered that s 487-5(2) can be characterised as a “jurisdictional fact” or even as a pre-condition to the issuing of a notice to show cause.

109    It may be accepted that jurisdiction to exercise a power cannot be assumed by a wrongful construction of a statutory provision: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 606. Latham CJ there observed:

An authority with a limited jurisdiction cannot give itself jurisdiction by a wrong determination as to the existence of a fact upon which its jurisdiction depends, or by placing a wrong construction upon a statute upon which its jurisdiction depends, unless by a valid provision the authority is given power to act upon its own opinion in relation to the existence of the fact or in relation to the construction of the statute.

And it may further be accepted that a variety of different errors may constitute jurisdictional error: Craig v The State of South Australia (1995) 184 CLR 163 at 179. Brennan, Deane, Toohey, Gaudron and McHugh JJ there thus observed:

If such an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it ...

This list is not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at 82, 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ. But not every wrongful construction of a statutory provision or other legal error necessarily constitutes jurisdictional error.

110    The difficulty confronting this aspect of the Applicant’s case is that s 487-5(2) is simply not a statutory constraint upon the power to issue a notice to show cause under s 487-10(1). It is the particular statutory provision which confers the power that is the starting point for any analysis as to whether those exercising the power have exceeded the jurisdiction entrusted to them. In the present statutory context, s 487-5(2) is a qualification to the ambit of operation of ss 487-(5)(1)(d) and (e). It is erroneous to construe s 487-5(2) as imposing a constraint which must first be in effect negatived before the jurisdiction or power to issue a notice to show cause may be exercised.

Section 487-5(1)(f)

111    The February Notice states in part as follows:

1.4    A further ground that I consider may exist to enable the making of the determination arises under section 487-5(1)(f) of the Act, namely:

(f)    disputes between:

(ii)    the corporation’s members and the corporation’s officers,

are interfering with the proper conduct of the corporation’s affairs.

I can determine that the corporation is to be under special administration if I am satisfied that the appointment of the special administrator is required because of disputes between the corporation’s members and officers.

112    The reference in the notice to the ability to make a determination if “satisfied” of the matters there mentioned is said to constitute legal error and it is then contended that “this erroneous statement of the law is a ground to restrain you from purporting to make a determination under s 487-1 of the Act based on the ground stated in section 1.4 of the notice”.

113    It is not at all clear that the notice suffers from the fatal defect being advanced on behalf of the Applicant. Nor is it considered appropriate that the notice to show cause should be construed in the same manner as (for example) a complaint or charge in criminal proceedings.

114    A separate argument asserted a lack of precision in the identification of the “disputes” being referred to. But there is no ambiguity or lack of precision. The February Notice, it is concluded, when read in its entirety sufficiently identifies the matters in respect to which the Applicant may make a “representation”. It should be noted that the February Notice, when directing the Applicant’s attention to s 487-5(1)(f), also drew its attention to “section 2.5 below” which section provided in part as follows:

Section 2.5—Disputes between the corporation’s members and officers are interfering with the proper conduct of the corporation’s affairs

2.5.1    Disputes

From 2007 to 2011 the Registrar has received a large number of complaints from members of the corporation indicating that they are in dispute with the directors of the corporation. The complaints were made to the Registrar in confidence and under section 604-5 of the Act the information is deemed to be protected information. Pursuant to section 604-10 of the Act and the provisions of the Privacy Act 1988 the name of the complainant and copies of the complaints must be protected by the Registrar.

However, the following is a summary of the substance of the complaints made to the Registrar by members of the corporation:

•    the failure to deal with the processing of outstanding membership applications made in 2008

•    the failure to conduct annual general meetings of the corporation by the time required under the Act and the corporation’s rule book

•     the failure to hold general meetings of the corporation at a reasonable time and place

•    the conduct of general meetings of the corporation on Saturdays, which are not appropriate for members who are Seventh Day Adventists

•    the attendance of ‘the corporation’s lawyer and accountant at general meetings which was an unfair cost on the corporation’

•    the failure to table the financial reports and auditor’s reports at annual general meetings of the corporation

•    the use of ‘native title claim funds’ for the personal benefit of the directors and legal advisers to the corporation

•    excessive expenditure on legal costs and travel for directors

•    failure to respond to correspondence requesting information on ‘when a general meeting would be convened in order to pass new members that were reviewed at a joint meeting’

•    the removal of members from the register of members by the directors of the corporation

•    the rejection of applicants for membership by the directors of the corporation as they were not considered to be of Dunghutti descent

•    the ‘misappropriation of funds and nepotism’, and

•    that ‘there won’t be any money left’.

I do not rely on the substance of the complaints as potential grounds for a determination, unless otherwise specified in this notice, but as an indication of the existence of disputes between members and directors of the corporation.

The detail there provided as to the “disputes” denies any substance to a submission of the Applicant that it could not meaningfully respond to the concerns being raised. There is no reason to question the concluding statement as to what had in fact been relied upon. No question, it is concluded, arises as to the delegate considering potentially further prejudicial material and there being a “subconscious influence of non-disclosed material”: Billabong Aboriginal Corporation v Registrar of Aboriginal Corporations [2007] FCA 1496 at [41], 100 ALD 42 at 50.

Section 487-5(1)(j)

115    The final provision relied upon in disputing the February Notice to show cause is s 487-5(1)(j).

116    To the extent that the Applicant submits that this is a “derivative ground dependent on the making out of the earlier grounds”, the lack of success of those earlier grounds leads to an equal lack of success of this ground.

117    The submission directed to this provision in reliance upon a reasonable apprehension of bias is also rejected.

Discretionary Refusal of Relief?

118    Any determination that may be made under s 487-1(1) to place a corporation under special administration is defined in s 617-1 as a “reviewable decision”.

119    As such, a request may be made for the Registrar “to reconsider the decision” (s 620-5) and thereafter an application for review may be made to the Administrative Appeals Tribunal (s 623-1).

120    The availability for such review is relied upon by the Respondents as a discretionary reason to refuse any relief to the Applicant – even if a ground of review is made out. The availability of internal and external review, it is contended, will “cure” any denial of procedural fairness: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [145]-[146]. A right of appeal to the Administrative Appeals Tribunal may be a reason to conclude that the rules of procedural fairness have been impliedly excluded: cf. Whittaker v Child Support Registrar [2010] FCA 43 at [251] to [261], 264 ALR 473 at 518 to 519 per Lindgren J.

121    Considerable reservation is expressed with any general proposition that a denial of procedural fairness at one stage of an administrative decision-making process can necessarily be “cured” or remedied by affording procedural fairness to those affected at a subsequent stage in that process. Where a decision-making process has been set forth in a statutory context, it is not self-evident why any exercise of statutory power in a procedurally unfair manner should be left for later rectification. The consequences of not complying with any express or implied requirement of procedural fairness at any stage of such a statutory process must nevertheless primarily be addressed by recourse to the statutory context in issue.

122    It may, however, be accepted that the availability of alternative means of review may provide – in an appropriate case – a discretionary reason to refuse relief. Although unnecessary to express any concluded view, it should be noted that relief may well have been refused in the circumstances of the present case had any of the variety of arguments as to there being a denial of procedural fairness been made out. Each of the factual matters of concern to the Registrar or his delegate has been a matter long canvassed. The time has come, it is respectfully concluded, for a decision to be made as to whether any of the grounds set forth in s 487-5 have been made out and, if so, whether the Applicant should be placed under special administration pursuant to s 487-1(1).

123    But this final bastion in the Respondents’ resistance to the grounds of review being raised against them need not be further pursued.

Conclusions

124    Each of the three “procedural points” relied upon by the Applicant has been rejected. Had the Applicant succeeded in establishing that there had been a denial of procedural fairness, that insufficient time had been permitted in which to make a submission, or that there had been a reasonable apprehension of bias, it may have been appropriate to grant relief restraining any further reliance upon the February Notice. But no such error has been made out.

125    Each of the remaining grounds of review has also been rejected. Success on one or other of these grounds may only have entitled the Applicant to relief restraining reliance upon a particular part of the February Notice. Any litigant is, of course, entitled to have access to this Court for the purpose of resolving grievances which can be brought within the jurisdiction of the Court. And, having invoked the jurisdiction of the Court with respect to the three “procedural points”, the resolution of any other grievance may well have been a convenient way in which to proceed. Whether or not these remaining grounds could best have been left to be made in “representations” made pursuant to s 487-10(1) need not be resolved. But a course of seeking judicial review of each and every aspect of a decision-making process only fragments that process and is a course which should not be encouraged.

126    It is regrettable that yet further legal costs have been incurred and a response to the concerns expressed in the February Notice further delayed.

127    The Application is to be dismissed. There is no reason why the normal rule as to costs should not prevail such that costs follow the event.

ORDERS

128    The Orders of the Court are:

1.    The Application as filed on 24 February 2011 is dismissed.

2.    The Applicant is to pay the costs of the Respondents of and incidental to the proceeding.

Associate:

Dated:    14 April 2011