Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Corporations (Aboriginal and Torres Strait Islander) Bill 2006

Part 14-1 Powers of courts

Division 576 Powers of courts

576-1   Power to grant relief

             (1)  If, in any civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity as such a person, it appears to the court before which the proceedings are taken:

                     (a)  that the person is or may be liable in respect of the negligence, default or breach but that the person has acted honestly; and

                     (b)  that, having regard to all the circumstances of the case, including those connected with the person’s appointment, the person ought fairly to be excused for the negligence, default or breach;

the court may relieve the person either wholly or partly from liability on such terms as the court thinks fit.

             (2)  If a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, breach of trust or breach of duty in a capacity as such a person:

                     (a)  the person may apply to the Court for relief; and

                     (b)  the Court has the same power to relieve the person as it would have had under subsection (1) if it had been a court before which proceedings against the person for negligence, default, breach of trust or breach of duty had been brought.

             (3)  If a case to which subsection (1) applies is being tried by a judge with a jury, the judge after hearing the evidence may, if he or she is satisfied that the defendant ought, pursuant to that subsection, to be relieved either wholly or partly from the liability sought to be enforced against the person:

                     (a)  withdraw the case in whole or in part from the jury; and

                     (b)  forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge thinks proper.

             (4)  This section applies to a person who is:

                     (a)  an officer or employee of an Aboriginal and Torres Strait Islander corporation; or

                     (b)  an auditor of an Aboriginal and Torres Strait Islander corporation (whether or not the person is an officer or employee of the corporation); or

                     (c)  an expert in relation to a matter:

                              (i)  relating to an Aboriginal and Torres Strait Islander corporation; and

                             (ii)  in relation to which the civil proceeding has been taken or the claim will or might arise; or

                     (d)  a receiver, receiver and manager, liquidator or other person appointed or directed by the Court to carry out any duty under this Act in relation to an Aboriginal and Torres Strait Islander corporation; or

                     (e)  a special administrator for an Aboriginal and Torres Strait Islander corporation.

576-5   Power of Court to give directions with respect to meetings ordered by the Court

                   If, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to:

                     (a)  the convening, holding or conduct of the meeting; and

                     (b)  such ancillary or consequential directions in relation to the meeting as it thinks fit.

576-10   Appeals from decisions of receivers, liquidators etc.

             (1)  A person aggrieved by any act, omission or decision of:

                     (a)  a special administrator for an Aboriginal and Torres Strait Islander corporation; or

                     (b)  a receiver, or a receiver and manager, of property of an Aboriginal and Torres Strait Islander corporation; or

                     (c)  an administrator of an Aboriginal and Torres Strait Islander corporation; or

                     (d)  an administrator of a deed of corporation arrangement executed by an Aboriginal and Torres Strait Islander corporation; or

                     (e)  a liquidator or provisional liquidator of an Aboriginal and Torres Strait Islander corporation;

may appeal to the Court in respect of the act, omission or decision.

             (2)  The Court may confirm, reverse or modify the act or decision, or remedy the omission, as the case may be, and make such orders and give such directions as it thinks fit.

576-15   Irregularities

             (1)  In this section:

                     (a)  a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and

                     (b)  a reference to a procedural irregularity includes a reference to:

                              (i)  the absence of a quorum at a meeting of an Aboriginal and Torres Strait Islander corporation, at a meeting of directors or creditors of an Aboriginal and Torres Strait Islander corporation, or at a joint meeting of creditors and members of an Aboriginal and Torres Strait Islander corporation; and

                             (ii)  a defect, irregularity or deficiency of notice or time.

             (2)  A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court:

                     (a)  is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court; and

                     (b)  by order declares the proceeding to be invalid.

             (3)  A meeting held for the purposes of this Act, or a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such a meeting, is not invalidated merely because of:

                     (a)  the accidental omission to give notice of the meeting; or

                     (b)  the non-receipt by any person of notice of the meeting;

unless the Court, on the application of the person concerned, a person entitled to attend the meeting or the Registrar, declares proceedings at the meeting to be void.

             (4)  A meeting held for the purposes of this Act, or a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such a meeting, is not invalidated merely because of the inability of a person to access the notice of meeting, unless the Court, on the application of the person concerned, a person entitled to attend the meeting or the Registrar, declares proceedings at the meeting to be void.

Note:          Under paragraph 201-25(3)(e), an Aboriginal and Torres Strait Islander corporation may, in certain circumstances, give a member notice of a meeting by notifying the member that the notice of meeting is available and how the member may access the notice of meeting.

             (5)  If a member does not have a reasonable opportunity to participate in a meeting of members, or part of a meeting of members, held at 2 or more venues, the meeting will only be invalid on that ground if:

                     (a)  the Court is of the opinion that:

                              (i)  a substantial injustice has been caused or may be caused; and

                             (ii)  the injustice cannot be remedied by any order of the Court; and

                     (b)  the Court declares the meeting or proceeding (or that part of it) invalid.

             (6)  Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

                     (a)  an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to an Aboriginal and Torres Strait Islander corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of an Aboriginal and Torres Strait Islander corporation;

                     (b)  an order directing the rectification of any register kept by the Registrar under this Act;

                     (c)  an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);

                     (d)  an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to an Aboriginal and Torres Strait Islander corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

             (7)  An order may be made under paragraph (6)(a) or (c) despite that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence.

             (8)  The Court must not make an order under this section unless it is satisfied:

                     (a)  in the case of an order referred to in paragraph (6)(a):

                              (i)  that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; or

                             (ii)  that the person or persons concerned in or party to the contravention or failure acted honestly; or

                            (iii)  that it is just and equitable that the order be made; and

                     (b)  in the case of an order referred to in paragraph (6)(c)—that the person subject to the civil liability concerned acted honestly; and

                     (c)  in every case—that no substantial injustice has been or is likely to be caused to any person.

576-20   Power of Court to prohibit payment or transfer of money, financial products or other property

             (1)  If:

                     (a)  an investigation is being carried out under this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act; or

                     (b)  a prosecution has been begun against a person for a contravention of this Act; or

                     (c)  a civil proceeding has been begun against a person under this Act;

and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (an aggrieved person ) to whom the person referred to in paragraph (a), (b) or (c), as the case may be, (the relevant person ), is liable, or may be or become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for financial products or other property, the Court may, on application by the Registrar or by an aggrieved person, make one or more of the following orders:

                     (d)  an order prohibiting a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed;

                     (e)  an order prohibiting a person holding money, financial products or other property, on behalf of the relevant person, or on behalf of an associate of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the financial products or other property, to, or to another person at the direction or request of, the person on whose behalf the money, financial products or other property, is or are held;

                      (f)  an order prohibiting the taking or sending out of this jurisdiction, or out of Australia, by a person of money of the relevant person or of an associate of the relevant person;

                     (g)  an order prohibiting the taking, sending or transfer by a person of financial products or other property of the relevant person, or of an associate of the relevant person:

                              (i)  from a place in this jurisdiction to a place outside this jurisdiction (including the transfer of financial products from a register in this jurisdiction to a register outside this jurisdiction); or

                             (ii)  from a place in Australia to a place outside Australia (including the transfer of financial products from a register in Australia to a register outside Australia);

                     (h)  an order appointing:

                              (i)  if the relevant person is a natural person—a receiver or trustee, having such powers as the Court orders, of the property or of part of the property of that person; or

                             (ii)  if the relevant person is a body corporate—a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person;

                      (i)  if the relevant person is a natural person—an order requiring that person to deliver up to the Court his or her passport and such other documents as the Court thinks fit;

                      (j)  if the relevant person is a natural person—an order prohibiting that person from leaving this jurisdiction, or Australia, without the consent of the Court.

             (2)  A reference in paragraph (1)(g) or (h) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example:

                     (a)  as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or

                     (b)  in a fiduciary capacity.

             (3)  Subsection (2) is to avoid doubt, is not to limit the generality of anything in subsection (1) and is not to affect by implication the interpretation of any other provision of this Act.

             (4)  An order under subsection (1) prohibiting conduct may prohibit the conduct either absolutely or subject to conditions.

             (5)  If an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

             (6)  On an application under subsection (1), the Court must not require the applicant or any other person, as a condition of granting an interim order under subsection (5), to give an undertaking as to damages.

             (7)  If the Court has made an order under this section on a person’s application, the Court may, on application by that person or by any person affected by the order, make a further order discharging or varying the first-mentioned order.

             (8)  An order made under subsection (1) or (5) may be expressed to operate for a specified period or until the order is discharged by a further order under this section.

             (9)  Nothing in this section affects the powers that the Court has apart from this section.

           (10)  This section has effect subject to the Bankruptcy Act 1966 .

           (11)  A person must not contravene an order by the Court under this section that is applicable to the person.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

           (12)  An offence against subsection (11) is an offence of strict liability.

Note:          For strict liability , see section 6.1 of the Criminal Code .

576-25   Injunctions

             (1)  If a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:

                     (a)  a contravention of this Act; or

                     (b)  attempting to contravene this Act; or

                     (c)  aiding, abetting, counselling or procuring a person to contravene this Act; or

                     (d)  inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or

                     (e)  being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or

                      (f)  conspiring with others to contravene this Act;

the Court may, on the application of the Registrar, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.

             (2)  If a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of:

                     (a)  the Registrar; or

                     (b)  any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

grant an injunction, on such terms as the Court thinks appropriate, requiring the first-mentioned person to do that act or thing.

             (3)  If an application for an injunction under subsection (1) or (2) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.

             (4)  If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

             (5)  The Court may discharge or vary an injunction granted under subsection (1), (2) or (4).

             (6)  The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

             (7)  The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

                     (b)  whether or not the person has previously refused or failed to do that act or thing; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

             (8)  If the Registrar applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

             (9)  In proceedings under this section against a person the Court may make an order under section 576-20 in respect of the person.

           (10)  If the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

576-30   Effect of sections 576-20 and 576-25

                   Nothing in either of sections 576-20 or 576-25 limits the generality of anything else in either of those sections.

576-35   Power of Court to punish for contempt of Court

                   Nothing in a provision of this Act that provides:

                     (a)  that a person must not contravene an order of the Court; or

                     (b)  that a person who contravenes an order of the Court contravenes a provision of this Act or commits an offence;

affects the powers of the Court in relation to the punishment of contempts of the Court.