Foster J
Dunghutti Elders Council had challenged the validity of a notice issued by the Registrar of Aboriginal and Torres Strait Islander Corporations (now known as the registrar of Indigenous Corporations), which required the Council to ‘show cause’ as to why it should not be put under special administration. That challenge, heard by Flick J, was unsuccessful, and an appeal against Flick J’s decision was dismissed by the Full Court. The Full Court ordered that this dismissal would not take effect for 3 weeks, and the Registrar undertook not to put the Council under special administration for that period. The Council has applied to the High Court for special leave to appeal against the Full Court’s dismissal.
In the current judgment, by Foster J, the Council had applied for orders that would prevent the Full Court’s dismissal from taking effect until the Council’s application for special leave had been decided. The Council also applied for an injunction preventing the Registrar from putting it under special administration during that time. Foster J held that a stay of the Full Court’s decision (which only had the effect of putting Flick J’s orders back on track) was not the appropriate remedy to seek in any case, and concentrated on whether an injunction should be granted. His Honour considered that an injunction was not appropriate for the following reasons:
The prospects of the High Court granting special leave to appeal are slim, since the Council’s substantive arguments are weak and further the special leave application does not raise any point of general importance applicable beyond the facts of this single case.
The grounds for the Registrar’s original ‘show cause’ notice involve serious allegations, and there was a significant public interest in ensuring that the native title compensation funds paid to the Council were spent wisely in the interests of the people the funds were intended to aid.
There is an ongoing risk, if an injunction were granted, that the Council’s assets will be further dissipated in litigation that will not benefit its members.
His Honour did not consider the prospect of further damage to the reputation of the incumbent directors to be a matter of much weight in favour of an injunction when compared with these other matters.