"S41 CATCHWORODS PRACTICE AND PROCEDURE - interlocutory injunction - application for review under Administrative Decision (Judicial Review) Act 1977 - s.13 reasons not yet supplied - whether injunction should be granted until expiry of limited time after receipt of reasons. Administrative Decision (Judicial Review) Act 1977 s.13 Aboriginal Development Commission Act 1980 3s.8, 12, 27, 28, & 29 Federal Court Rules Order 54 r 4. RALKON AGRICULTURAL COMPANY PTY. LIMITED Applicant - and - ABORIGINAL DEVELOPMENT COMMISSION Respondent FISHER J. ADELAIDE 19 NOVEMBER 1986. IN COURT OF AUST IA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G75 of 1986 ) ) GENERAL DIVISION JUDGE MAKING ORDER BETWEEN: RALKON AGRICULTURAL COMPANY PTY. LIMITED Applicant - and - ABORIGINAL DEVELOPMENT COMMISSION Respondent MINUTE OF ORDER FISHER J. WHERE MADE 2 ADELAIDE DATE OF ORDER 12 NOVEMBER 1986 THE COURT ORDERS THAT, upon the applicant giving the usual undertaking as to damages - The respondent be restrained from accepting any tender for the purchase of Bartlett's Farm or from entering into an enforceable obligation with any prospective purchaser for a period which expires 14 days after service upon the applicant's solicitors of its reasons for decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 or until further order. There be liberty to either party to apply on 48 hours notice to the other party to vary or discharge this order. The respondent be granted leave to appeal from this order and that the time for service of any notice of appeal run from this day. 4. Costs of this notice of motion be reserved. THE COURT FURTHER DIRECTS THAT; The applicant supply further and better particulars of the grounds of its application for a review within 10 days of the receipt by it of reasons pursuant to s.13. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE OURT OF AUSTRALI ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No.G75 of 1986 ) GENERAL DIVISION ) BETWEEN: RALKON AGRICULTURAL COMPANY PTY. LIMITED ¥ Applicant - and - ABORIGINAL DEVELOPMENT COMMISSION Respondent REASONS FOR JUDGMENT CORAM: Fisher J. 19 November 1986 This application for an interlocutory injunction is a further chapter in the never ending and bitter litigation between the parties. I need only refer to the decision of Keely J. reported (1982) 43 A.L.R.535, my decision reported (1984) 1 F.C.R. 211 and the decision of the Full Court of this Court reported (1984) 57 A.L.R. 143. There has also been much peripheral litigation in this Court and also in the Supreme Court. On 12 November 1986 I made certain orders and undertook subsequently to give my reasons. On this occasion Ralkon Agricultural Company Pty. Limited ("Ralkon") made application pursuant to s.5 of the 2. Administrative Decisions (Judicial Review) Act 1977 ("the A.D.J.R. Act") for anorder of review of a decision of the Aboriginal Development Commission ("the A.D.C."). The decision to be reviewed was pleaded as being the decision of the A.D.C. to sell certain farming land in this State known as Bartlett's Farm. Ralkon also sought a review of the A.D.C's conduct in relation to the proposed sale. At the same time as Ralkon filed on 3 November 1986 its application for a review supported by an affidavit, it filed a notice of motion seeking an interlocutory order restraining the A.D.C. from any further action in relation to its offer to sell Bartlett's Farm. On 6 November 1986 the A.D.C. filed a notice of objection to competency pursuant to O 54 r 4 of the Rules of this Court. Objection was taken on the ground that the A.D.C. had not made the decision alleged in the application for an order of review or alternatively that this decision was not made under an enactment. Two affidavits were filed by the A.D.C. in support of the objection to competency and in opposition to the application for an interlocutory injunction. In one of the affidavits the deponent referred to the fact that two leases each for 99 years granted by the A.D.C. to Point McLeay Community Council Incorporated of Bartlett's Farm had been recently surrendered. On 6 November both the application for interlocutory relief and the objection to competency were adjourned to 11 November 1986 on the A.D.C. undertaking to take no further steps prior to the latter date in respect of the proposed sale. The relevant facts, the background to which were set out in great detail in my decision previously referred to, can be briefly stated. Ralkon is and has been since 1975 1n occupation of Bartlett's Farm. It carries on business there and on other land as a grazier with approximately 2,000 head of cattle. I was informed that Ralkon 1s now an Aboriginal body as defined in the Aboriginal Development Commission Act 1980. Pursuant to the provisions of that Act the A.D.C. acquired and presently holds title to Bartlett's Farm. The nature of the interest of Ralkon in Bartlett's Farm has been earlier and somewhat loosely described by me and by the Full Court as a licence to occupy Bartlett's Farm subject to reasonable notice. The requisite term of such notice has not been identified. In April 1985 the A.D.C. served notice to quit upon Ralkon requiring it to give up possession of Bartlett's Farm to the then lessee the abovementioned Community Council. When Ralkon did not give up possession the A.D.C. sought from the Supreme Court orders for possession. These proceedings were dismissed on 4 December 1985 on the ground that the A.D.C. did not have standing to make application for possession. On or about 9 October 1986 Ralkon became aware that the A.D.C. was offering Bartlett's Farm for sale by tender. On 27 October Ralkon sought from the A.D.C. reasons for its decision to sell pursuant to s.13 of the A.D.J.R. Act. In its affidavit in 4. support of the application for interlocutory relief the chairman of directors of Ralkon deposed to the fact that Ralkon and the Aboriginal people at Point McLeay would suffer irreparable harm if Bartlett's Farm were sold by the A.D.C. Counsel for the A.D.C. did not seek to cross-examine on this affidavit or contest this contention. Prior to or at the commencement of the hearing of the application for interlocutory relief I was informed by the A.D.C. that 1t did not propose in its opposition to such relief to rely upon the surrender of the leases by the Community Council. Likewise the A.D.C. did not wish to proceed at that stage with its objection to competency but to reserve its position thereon until a subsequent date. I am of opinion that I should proceed to determine the application for interlocutory relief on the assumption, at this stage, that the A.D.C. does not wish to challenge Ralkon's contention that it is a person aggrieved by a decision of A.D.C., which decision I can assume for present purposes is a decision of an administrative character under an enactment. In these circumstances it seemed appropriate that I should preserve the status quo at least until such time as_ the A.D.C. had given its reasons for its decision and Ralkon has in relation thereto defined with greater particularity its grounds for a review. However counsel for the A.D.C. very strenuously opposed such an order. He contended that in the light of all the earlier 5. litigation in relation to Bartlett's Farm it was obvious. that Ralkon's application was entirely without merit and that it was once again made in an attempt by Ralkon to delay and manipulate. He submitted that Ralkon had no prospects of ultimate success and no right in law or on the merits to remain in possession. In consequence of my previous involvement in litigation between the parties I have much sympathy with his contentions. It is a great pity that the legislature has not produced a process whereby at the outset the merits and probable ultimate conclusion can be investigated. However in accordance with the accepted interpretation of the expression "person aggrieved" I must accept at this stage, at least in the absence of an objection to competency, that the interest of Ralkon ina decision by the A.D.C. to sell could be beyond that which an ordinary member of the public would have in that decision. I refer to dicta of Ellicott J., as he still was, in Tooheys Limited v Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at p.79. Furthermore, there are difficult questions which arise in respect of the power of the A.D.C. to sell without reference to the interests of the Aboriginal body which is occupying Bartlett's Farm. Admittedly under s.12 of the Aboriginal Development Commission Act 1980 it has power to acquire hold and dispose of real and personal property. However the function of the Commission is stated by 3.8 as the furtherance of the 6. economic and social development of Aboriginals and to assist communities and groups of Aboriginals to acquire land and engage in business enterprises. Sections 27,28 and 29 of that Act have doubtless been enacted in furtherance of this function. If one is required to decide whether a serious question arises 1t is at this stage, in the absence of reasons and particulars of the grounds for a review, hard to answer in the negative. On the second ground for consideration in the exercise of my discretion, namely balance of convenience or inconvenience, there was no evidence of such from the A.D.C. and Ralkon's contentions in its affidavit in support are not challenged. It is my opinion that I should at least until reasons have been supplied by the A.D.C. make an order preserving the status quo and restraining any action amounting to a sale to or an enforceable obligation 1n favour of a purchaser of Bartlett's Farm. On this score the propriety of a restraining order might have to be reconsidered after Ralkon has had an opportunity to apply particulars of the grounds upon which it seeks an order of review. Such cannot effectively be given until the reasons have been supplied. I propose, in the absence of any undertaking from the A.D.C., to restrain 1t until 14 days after the supply by it of reasons pursuant to s.13 of the Act. Counsel for the A.D.C. sought leave to appeal my decision. It is appropriate in my view that I grant such leave 7. and this was not opposed by Ralkon. The A.D.C. raised matters of substance and of general importance and is entitled if it wishes to the views of the Full Court thereon. This 1s not a matter of mere practice and procedure. Ralkon is prepared to give the usual undertaking as_ to damages. The orders that I made were that the A.D.C. be restrained from accepting any tender for the purchase of Bartlett's Farm or from entering into any enforceable arrangement with a prospective purchaser for a period which expires 14 days after service upon the solicitors for Ralkon of its reasons for decision pursuant to s.13 of the A.D.J.R. Act or further order. Each party has liberty to apply on 48 hours notice to vary or discharge this order. I granted to the A.D.C. leave to appeal to the Full Court against my order, the time for filing and serving notice of any such appeal to run from the date of publication of these reasons. The question of costs was reserved. I directed Ralkon to supply further and better particulars of the grounds of its application for review within 10 days of the receipt of the A.D.C's reasons for decision. I certify that this and the G preceding pages are a true copy of the Reasons for Judgment of Mr Justice Fisher. associate LY Cong Dated: 19 November 1986.