David v Johnson [2002]FCA 1161

FEDERAL COURT OF AUSTRALIA

David v Johnson [2002] FCA 1161

ABORIGINES – aboriginal corporation – winding up – representative body – loss of representative status – application for review of unspecified decisions of ATSIC Regional Manager – applicant lacking standing – application not viable on the face of it – application frivolous and vexatious – application dismissed. PRACTICE AND PROCEDURE – application frivolous and vexatious – no reasonable cause of action – applicant lacks standing – first directions hearing – application dismissed of Court's own motion. (FRANK) PETER DAVID v MR BARRY JOHNSON, REGIONAL MANAGER OF ATSIC WA W250 of 2002 FRENCH J 13 SEPTEMBER 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W250 OF 2002

BETWEEN: (FRANK) PETER DAVID

APPLICANT

AND: MR BARRY JOHNSON, REGIONAL MANAGER OF ATSIC WA

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 13 SEPTEMBER 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W250 OF 2002

BETWEEN: (FRANK) PETER DAVID

APPLICANT

AND: MR BARRY JOHNSON, REGIONAL MANAGER OF ATSIC WA

RESPONDENT

JUDGE: FRENCH J

DATE: 13 SEPTEMBER 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 On 22 August 2002, an application was filed in this Court naming (Frank) Peter David as applicant and Barry Johnson, the Regional Manager of the Aboriginal and Torres Strait Islander Commission (ATSIC) in Western Australia as respondent. It comes before the Court today for first directions. In my opinion, however, the application should not be allowed to proceed further. 2 The claim was stated thus: "On the grounds stated in the accompanying statement of claim the applicant claims: That the decisions made by Mr Barry Johnson be revoked because they breach the ATSIC Act of 1989. Causing us the Noongar people a lot of problems, the full extent of our complaint to the Federal Court is listed in the affidavit I present to the Court." There was no statement of claim and the decisions complained of are not identified in the claim. 3 There is also a claim for interlocutory relief in the following terms: "An injunction is sought by myself on behalf of the Aboriginal Corporations for the return of assets they have ceased by stealth and without permission of the Noongar Land Council membership. The registrar Jan has erred in his findings because the Grants controller Walker and Wayland Accountant's report on the financial affairs of the Noongar Language and Culture Centre was never considered by him when he reached his decision, based on insolvency of NLCC and a deficiency that was alleged by the administrator, Mr Shiavi was never substantiated. Mr Barry Johnson's affidavit proves that he has breach the ATSIC Act of 1989, and therefore his decision be revoked by the Court as it is illegal to do what Mr Johnson has chosen to do. The registrar has not taken this important breach that is clearly identified into consideration when he handed down his decision. So we want his decision stayed and a proper hearing into this matter be heard by this Court and relief be granted by form of an order of the Federal Court." There is a supporting affidavit from Mr David. It exhibits minutes of a special general meeting of the Noongar Land Council held on 13 July 2002, an extract from the Aboriginal and Torres Strait Islander Commission Act 1989 and a copy of a decision by District Registrar Jan winding up the Noongar Language and Culture Centre Aboriginal Corporation on the application of the Registrar of Aboriginal Corporations. 4 The District Registrar's decision was made on an application by the Registrar of Aboriginal Corporations under ss 62A and 63(2)(d) of the Aboriginal Councils and Associations Act 1976 (Cth). Reliance was also evidently placed upon s 63(2)(h), the just and equitable ground. Mr David appeared at the directions hearing in relation to that application on 4 July 2002 and made various submissions as to why a winding up order should not be made. No formal leave was granted to him to appear or to oppose the application. The question of his continued appearance was stood over to the hearing of 24 July 2002. At that time the District Registrar decided Mr David lacked the requisite standing and that, in any event, he had not complied with the provisions of s 465C of the Corporations Act and r 2.9 of the Corporations Rules which apply to the winding up of any incorporated Aboriginal Association (s 67 Aboriginal Councils and Associations Act 1976).