Federal Court of Australia

Greer v Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC [2025] FCA 1217

ORDERS

THE COURT ORDERS THAT:

1.    Sparke Helmore be relieved from its obligation to provide seven days’ notice of its intention to cease acting under r 4.05(1).

2.    The applicant’s Urgent Application Before Start of a Proceeding, dated 15 September 2025 be adjourned to 9 October 2025 on the undertaking that the respondent will not terminate the applicant’s employment until the hearing and determination of that application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

DOWLING J

1    On 15 September 2025, the applicant, Ms Rebecca Fiona Greer, filed an “urgent application before start of a proceeding” seeking orders that the “respondent be restrained from taking any action adverse to the applicant, including but not limited to termination of the applicant’s employment”, until the determination of the Originating Application or further order.

2    That application came before Rangiah J on 18 September 2025. Mr Nairn of Spark Helmore appeared for the respondent at that hearing. Ms Takira Khan also sought to appear on behalf of the respondent. Ms Khan introduced herself as interim Chief Executive Officer of the respondent. Mr Nairn said that he had been notified of the proceedings the day before, on 17 September 2025. Mr Nairn explained that he received instructions from Ms Tara Mercy, the chairperson of the board of the respondent, and the solicitors acting for the respondent, “NTS Corp”. He said that there was a board meeting on 16 September 2025 and resolutions were passed to instruct Sparke Helmore to act in this matter. Justice Rangiah accepted that Mr Nairn represented the respondent, and, on that basis, declined to hear from Ms Khan on that day. Ultimately, Rangiah J made orders adjourning the interlocutory application to 25 September 2025, upon the respondent’s undertaking “that it will not terminate the applicant’s employment prior to the conclusion of that hearing”.

3    Following the hearing before Rangiah J, Ms Takira Khan emailed Rangiah J’s chambers on 18 September 2025 stating, amongst other things, that the appointment of Mr Nairn of Sparke Helmore presents a conflict of interest. She wrote that this was so because:

(1)    On 10 September 2025, Bandjalang members resolved to appoint Eddy Neumann Lawyers as the corporation’s legal representatives.

(2)    Neither members nor the validly appointed directors have authorised Sparke Helmore to act.

(3)    The engagement of Sparke Helmore was orchestrated by Ms Greer and Ms Tara Mercy, both of whom were removed by valid resolutions of the directors (on 12 August 2025) and members (on 10 September 2025).

4    On 24 September 2025, Mr Nairn of Sparke Helmore wrote to my chambers stating that, “in circumstances where we are unable to ascertain who can provide instructions [on behalf of the prospective respondent corporation], we anticipate seeking leave of the Court on 25 September 2025 to cease to act”.

5    My chambers was copied into further correspondence on 24 September 2025 from Ms Sylvia Khan to Mr Nairn which noted, among other things, that there is a conflict of interest between Ms Mercy and the applicant as Ms Mercy reports directly to the applicant.

6    My chambers also received correspondence on 24 September 2025 from Ms Takira Khan indicating that Sparke Helmore was briefed by Ms Tara Mercy, Ms Margaret Yuke, and Ms Rebecca Cowan of the Bandjalang Aboriginal Corporation. Ms Khan stated that instructions were received by Sparke Helmore from persons without proper authority. She said that the engagement of Sparke Helmore was “deeply problematic” because:

(1)    Ms Mercy ceased to be a director and chairperson on 10 September 2025 following more than 21 days’ notice to members and a valid general meeting resolution. That change was submitted to the Office of the Registrar of Indigenous Corporations on 12 September 2025.

(2)    The respondent’s internal governance rules require that instructions to lawyers come from the board through the chairperson or a named director. There is no record of a valid board resolution authorising Sparke Helmore after 10 September 2025.

(3)    Reliance on instructions from Ms Mercy, who at the time was an employee reporting directly to Ms Greer, constitutes a direct conflict of interest and a breach of duties under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ('CATSI Act') ss 265-5 and 265-10.

7    It is clear from the matters above and the correspondence summarised above that the respondent has some present disagreement surrounding its internal governance and engagement of legal representatives. At the hearing before me, Ms Sylvia Khan, Ms Takira Khan, Ms Mercy and Mr Nairn all appeared. Mr Nairn confirmed that he sought to cease acting for the respondent. Ms Mercy introduced herself as the chairperson of the respondent. Ms Sylvia Khan introduced herself as the director of the respondent. Ms Takira Khan has introduced herself in correspondence as interim chief executive officer and contact person for the respondent. I allowed Ms Sylvia Khan, Ms Takira Khan and Ms Mercy to address the Court on the limited issue of how the respondent wishes to proceed if I accepted Mr Nairn’s application to cease acting for the respondent. Those three people sought that the applicant’s application be adjourned for 14 days to allow the respondent to engage legal representation. They all made an undertaking on behalf of the respondent that the respondent will not terminate the applicant’s employment until the hearing and determination of the applicant’s interlocutory application.

8    For the reasons that follow, I will, first, allow Mr Nairn to cease acting for the respondent upon him filing a notice of ceasing to act pursuant to r 4.05 of the Federal Court Rules 2011 (Cth). Pursuant to r 1.34, I will dispense with the procedural requirements of r 4.05 such that Mr Nairn and Sparke Helmore do not need to serve on the respondent a notice of intention of ceasing to act or to then wait at least seven days to file a notice of ceasing to act. Second, I will adjourn the present interlocutory application until 9 October 2025, noting the undertaking given by Ms Sylvia Khan, Ms Takira Khan and Ms Mercy on behalf of the respondent that it will not terminate the applicant’s employment until the hearing and determination of the interlocutory application.

9    I am satisfied that the undertaking is properly given on behalf of the respondent.

ceasing to act

10    As discussed above, Mr Nairn’s email to my chambers of 24 September 2025 said that:

Unfortunately, we are unable to satisfy ourselves as to who can provide instructions on behalf of the Respondent with respect to the proceedings.  

I will appear on 25 September 2025 and in circumstances where we are unable to ascertain who can provide instructions, we anticipate seeking leave of the Court on 25 September 2025 to cease to act.

11    At the hearing before me, Mr Nairn reiterated that in circumstances where Sparke Helmore cannot be satisfied from whom they are entitled to receive instructions, he sought to cease to act for the respondent. He agreed that he could file a notice of ceasing to act if the Court waived compliance with the procedural requirements of r 4.05 by way of r 1.34. In the alternative, Mr Nairn said that the Court could make an order that he cease to act by way of the Court’s power under r 1.32 to make any orders it considers appropriate in the interests of justice.

12    Rule 4.05(1) provides that if a party’s lawyer terminates the retainer, the lawyer must serve on the party a “notice of intention of ceasing to act” in accordance with Form 7, and at least seven days after serving that notice file a “notice of ceasing to act” in accordance with Form 8. The Court has not received a notice of ceasing to act from Mr Nairn, or confirmation that the respondent was served with a notice of intention of ceasing to act in accordance with Form 7. This is perhaps understandable, given Sparke Helmore say that it only received notice of the proceedings and the application eight days ago, on 17 September 2025.

13    There is no mention in r 4.05 that termination of retainer by a lawyer can be done by seeking the Court’s leave to cease to act. This aspect of the Rules contrasts with rules in other jurisdictions which grant an express power for the relevant court to grant leave to a solicitor to cease to act in certain specific circumstances: see High Court Rules 2004 (Cth) r 6.02.5(c); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3) and (4). In Jiangyin Yinying Goods & Materials Trade Co Ltd v Australia Victoria Capital Pty Ltd [2012] FCA 274 at [8], Gray J said: “There appears to be no provision in the rules by reference to which it would be open to me to grant leave to a legal practitioner to cease to act for a party to a proceeding, so far as the court record is concerned” and declined to make an order for the second respondent in that case to cease to act.

14    That said, the Court has a power to dispense with compliance with the Rules under r 1.34. The Court also has a power to make any order it considers appropriate in the interests of justice: see r 1.32. Given these rules, I am satisfied that, notwithstanding r 4.05(1), I am able to waive compliance with that part of r 4.05(1) that requires the respondent to effectively give seven days’ notice of its intention to cease to act. The practical consequence of that waiver is that a notice of ceasing to act filed by Sparke Helmore will take effect despite Sparke Helmore’s failure to serve on the respondent a notice of intention to cease acting in accordance with Form 7.

15    If I do not permit Sparke Helmore to cease acting, the consequence would be that Mr Nairn and Sparke Helmore are retained in circumstances where there is present internal division within the respondent about who has the authority to give instructions to Sparke Helmore or a lawyer more generally. There is the possibility that this confusion within the respondent may continue and the proceedings not progress in a timely or efficient manner. I note also that the applicant does not oppose Sparke Helmore’s application to cease to act.

16    In those circumstances, and having regard to the overarching purpose in s 37M of the Federal Court Act 1976 (Cth) to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible, I am satisfied it is in the interests of justice to waive the notice requirement of r 4.05(1) of the Rules, having the effect that any notice of ceasing to act filed by Sparke Helmore under r 4.05(1)(b) will take effect despite Sparke Helmore’s failure to comply with its obligation to give seven days’ notice of its intention of ceasing to act under r 4.05(1). I understand and expect that Sparke Helmore will file its notice of ceasing to act immediately.

adjournment application

17    The respondent makes an application for an adjournment in order to enable it to seek legal representation.

18    Rule 4.01(2) of the Rules provides that a “corporation must not proceed in the Court other than by a lawyer”. In the circumstances where I propose to grant, and have since granted, Sparke Helmore’s application to waive compliance with the Rules and cease to act, it was necessary for me to hear from those that sought to represent the respondent. As explained, that was Ms Mercy, Ms Sylvia Khan and Ms Takira Khan. I am prepared, in the very limited circumstances of this application, to hear from those persons in their capacity as representatives of the respondent. While the position of Ms Mercy, Ms Sylvia Khan and Ms Takira Khan varied at certain points in the hearing, they ultimately all put the same submission on the adjournment application. That was:

(1)    That the matter be adjourned for a period of two weeks to enable the respondent to obtain legal representation; and

(2)    That the respondent gave an undertaking not to terminate the employment of the applicant prior to the hearing and determination of the applicant’s interlocutory application.

19    The types of matters that should be considered in an adjournment application were stated by the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 to include, (a) the explanation for the adjournment; (b) the detriment to the other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. It is for the applicant for the adjournment to persuade the Court, on sufficient material, that an adjournment is appropriate. If an application that would result in an adjournment is sought and no, or no sufficient explanation is given, then an application should be refused: AON at [103], [106], [107] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also Zetta Jet Pte. Ltd v Ship "Dragon Pearl" [2018] FCA 878 at [37]-[38] (Burley J).

20    As to its explanation for the adjournment, the respondent says that it is necessary to obtain the adjournment in order that it obtain legal representation in circumstances where Sparke Helmore no longer represents the respondent. Whilst there was some uncertainty before the hearing on 25 September about Sparke Helmore’s ability to represent the respondent, it was not until the hearing of the application on 25 September that it became certain that they would cease to act. The effect of the respondent’s submission is that it would be unfair to proceed in circumstances where they have no representation and have not filed any material. That, I accept, would be a significant prejudice to the respondent.

21    Where the applicant proffers the undertaking that it does, the effect of the respondent’s position is that there is limited detriment or prejudice to the applicant. Further, it seems to me that any prejudice to the applicant in the circumstances of the undertaking would be outweighed by requiring the respondent to proceed without any legal representation or material filed in support of its position.

22    I should add that Court would also be assisted, in the circumstances of this case, if the respondent was given the opportunity to obtain legal representation and able to cogently put any submissions and material in opposition to the interlocutory application.

23    The respondent seeks a period of 14 days to enable it to obtain legal representation and, as I understood it, to put on material in support of any opposition to the applicant’s interlocutory application.

24    The applicant opposed the adjournment application. She raised three considerations against the adjournment.

25    First, she said that the respondent has already had an opportunity to provide instructions to a solicitor or lawyer. To this, it should be noted that the respondent’s solicitor effectively ceased to act for the respondent as the consequence of the hearing on 25 September 2025. It appears that it was 24 September 2025 that Sparke Helmore first advised the respondent that it intended to cease to act. In those circumstances, the respondent has had some, but limited opportunity to seek new legal representation. In the circumstances, I consider that the prejudice to the respondent is significant, and that the opportunity they previously had to instruct new or different solicitors does not justify refusing the adjournment application.

26    Second, the applicant said that the prejudice of ongoing costs to be incurred by the applicant should be a matter against the adjournment. I consider that this factor is a matter against the granting of the adjournment. However, I must balance this factor against the prejudice that the respondent will suffer if they are to proceed without any legal representation.

27    Third, the applicant raised the concern that the limited time for which an adjournment was proposed was insufficient for the respondent to provide adequate instructions to represent its best interests and put on any material it wished to rely upon. This, she said, might result in a repeat of the events which occurred at the hearing before me. At the time the applicant made this submission, the timeframe under consideration for the adjournment was seven days. In light of the prejudice that the respondent would suffer if they were to proceed without representation, and to ensure sufficient time to protect both parties’ positions, I consider this factor weighs in favour of granting the adjournment for a period close to 14 days.

28    In weighing all of the above matters and considerations, including the undertaking referred to above, I am persuaded that it is appropriate to grant the adjournment application for a duration of approximately two weeks, such that the hearing of the application will occur on 9 October 2025.

Associate:

Dated:    3 October 2025