Acting Registrar Plowman, in the matter of Kooma Aboriginal Corporation for Land v Kooma Aboriginal Corporation for Land [2001] FCA 272

FEDERAL COURT OF AUSTRALIA

Acting Registrar Plowman, in the matter of Kooma Aboriginal Corporation

for Land v Kooma Aboriginal Corporation for Land [2001] FCA 272 IN THE MATTER OF KOOMA ABORIGINAL CORPORATION FOR LAND COLIN PLOWMAN, THE ACTING REGISTRAR OF ABORIGINAL CORPORATIONS v KOOMA ABORIGINAL CORPORATION FOR LAND Q 8 OF 2001

DRUMMOND J BRISBANE 9 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 8 OF 2001

IN THE MATTER OF KOOMA ABORIGINAL CORPORATION FOR LAND

BETWEEN: COLIN PLOWMAN, THE ACTING REGISTRAR OF ABORIGINAL CORPORATIONS

APPLICANT

AND: KOOMA ABORIGINAL CORPORATION FOR LAND

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 9 MARCH 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Kooma Aboriginal Corporation for Land be wound up.

2. Mr Ian Richard Hall, Official Liquidator, be appointed liquidator of Kooma Aboriginal Corporation for Land.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 8 OF 2001

IN THE MATTER OF KOOMA ABORIGINAL CORPORATION FOR LAND

BETWEEN: COLIN PLOWMAN, THE ACTING REGISTRAR OF ABORIGINAL CORPORATIONS

APPLICANT

AND: KOOMA ABORIGINAL CORPORATION FOR LAND

RESPONDENT

JUDGE: DRUMMOND J

DATE: 9 MARCH 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 I have before me an application under s 62A the Aboriginal Councils and Associations Act 1976 (Cth) ("the Act") to wind up the Kooma Aboriginal Corporation for Land ("Kooma") on the grounds that it is insolvent and that it is just and equitable that it should be wound up. Kooma's difficulties started in 1998 with Goolburri Regional Council ("Goolburri") of the Aboriginal and Torres Strait Islander Commission ("ATSIC") refusing to fund it. Spender J, in a judgment given in February 1999, held that Goolburri's decision to de-fund Kooma was unlawful. 2 Kooma did not sue Goolburri following that decision in respect of its unlawful actions in de-funding it and has never sought to sue Goolburri. Instead, understandably, it reopened discussions with ATSIC to obtain the funding necessary to conduct its operations. 3 The evidence indicates that Kooma's only effective source of income is grants from ATSIC. But by November 1999, those discussions between Kooma and ATSIC for a resumption of funding had broken down and Kooma has not received any grants funding since prior to the Goolburri decision in September 1998, ie, the decision invalidated by Spender J. It has, on the evidence, no prospect now of obtaining grants funding or other income of any significant amount. 4 On the most favourable view of the evidence for Kooma, it owed as at 30 June 1998 a minimum of about $33,000 to the Australian Taxation Office ("ATO") in respect of unremitted group tax. That is the figure given by Mr Fraser of Fraser Hooker Aitken in his July 1998 review into Kooma's operations. Mr Wharton, the General Manager of Kooma, in late 2000 advised Mr Jepsen, who was appointed by the Registrar to conduct an examination into Kooma under s 60 of the Act, that Kooma's liability to the ATO was of the order of $70,000 to $80,000. Mr Wharton gave that information at a time when the ATO was claiming a debt due by Kooma in respect of notices of assessment issued and served on Kooma amounting to about $121,000. 5 Mr Wharton in his affidavit explains his position as to what he had to say to Mr Jepsen about what he referred to as "the limited extent of Kooma's indebtedness to the ATO $70,000 to $80,000" in this way: