Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844

Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844

There is a serious question to be tried as to whether the Minister is obliged to accord the tenants affected by a proposed notice under s 47(1) of the NER Act clear information about the extinguishment of their tenancy rights and a fair opportunity to be heard. The current measures have not adequately discharged that obligation. There is also a serious question to be tried in respect of whether the execution of the proposed sub-leases by Housing Associations is contrary to the interests of members as a whole in the absence of the compulsion threat. The balance of convenience favours restraining the Minister and the other parties from acting as proposed until the affected persons are...

Parties
Applicant: Barbara Rachel Shaw; Applicant: George Robertson Jampitjinpa; Applicant: Gwen Gillen; Applicant: Warren Tonkin; Applicant: Melissa Brown; Applicant: Marlene Hayes; Applicant: Kevin Wirri; Applicant: Vanessa Kruger; Applicant: Maureen Williams; Applicant: Rachel Jurra; Applicant: Rosemary Rubuntja; Applicant: Audrey McCormack; Applicant: Pamela Sampson; Applicant: Cheryl McMillan; Respondent / First Respondent: Minister for Families, Housing, Community Services and Indigenous Affairs; Second Respondent: Executive Director of Township Leasing; Third Respondent: Northern Territory of Australia; Fourth Respondent: Iiparpa Aboriginal Corporation; Fourth Respondent: Karnte Aboriginal Corporation; Fourth Respondent: Anthepe Housing Association; Fourth Respondent: Ilyperenye Association Inc; Fourth Respondent: Inarlange Community Inc; Fourth Respondent: Mpwetyerre Aboriginal Corporation; Fourth Respondent: Yarrrenyte Arltere Association Inc; Fourth Respondent: Akngwertnarre Association Inc; Fourth Respondent: Nyewente Association Inc; Fourth Respondent: Anthelk Ewlpaye Association Inc; Fourth Respondent: Aper Alwerrknge Association Inc; Fourth Respondent: Mt Nancy Housing Association Inc; Fourth Respondent: Ilperle Tyathe Association Inc; Fourth Respondent: Ilpeye Ilpeye Aboriginal Corporation; Fourth Respondent: Ewyenper Atwatye Association Inc; Fourth Respondent: Anhelke Aboriginal Corporation; Fourth Respondent: Lhenpe Artnew Aboriginal Corporation
Jurisdiction
Australia
Judgment Date
06 August 2009
Procedural Posture
Representative/interlocutory Injunction Applications / Interlocutory Applications
Outcome
Interlocutory injunctions granted
Legal Topics
Natural Justice / Procedural Fairness, Compulsory Acquisition, Interlocutory Injunctions, Statutory Construction, Oppression and Members' Interests in Associations, Sub Leases and Rights of Occupancy in Aboriginal Town Camps
Administrative Law Injunctions Aboriginal and Torres Strait Islander Law Land Law Corporations Law Natural Justice / Procedural Fairness Compulsory Acquisition Interlocutory Injunctions +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 17 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Barbara Rachel Shaw

Applicant

George Robertson Jampitjinpa

Applicant

Gwen Gillen

Applicant

Warren Tonkin

Applicant

Melissa Brown

Applicant

Marlene Hayes

Applicant

Kevin Wirri

Applicant

Vanessa Kruger

Applicant

Maureen Williams

Applicant

Rachel Jurra

Applicant

Rosemary Rubuntja

Applicant

Audrey McCormack

Applicant

Pamela Sampson

Applicant

Cheryl McMillan

Applicant

Minister for Families, Housing, Community Services and Indigenous Affairs

Respondent / First Respondent

Executive Director of Township Leasing

Second Respondent

Northern Territory of Australia

Third Respondent

Iiparpa Aboriginal Corporation

Fourth Respondent

Karnte Aboriginal Corporation

Fourth Respondent

Anthepe Housing Association

Fourth Respondent

Ilyperenye Association Inc

Fourth Respondent

Inarlange Community Inc

Fourth Respondent

Mpwetyerre Aboriginal Corporation

Fourth Respondent

Yarrrenyte Arltere Association Inc

Fourth Respondent

Akngwertnarre Association Inc

Fourth Respondent

Nyewente Association Inc

Fourth Respondent

Anthelk Ewlpaye Association Inc

Fourth Respondent

Aper Alwerrknge Association Inc

Fourth Respondent

Mt Nancy Housing Association Inc

Fourth Respondent

Ilperle Tyathe Association Inc

Fourth Respondent

Ilpeye Ilpeye Aboriginal Corporation

Fourth Respondent

Ewyenper Atwatye Association Inc

Fourth Respondent

Anhelke Aboriginal Corporation

Fourth Respondent

Lhenpe Artnew Aboriginal Corporation

Fourth Respondent

Procedural Posture

Representative/interlocutory Injunction Applications / Interlocutory Applications

Legal Issues

  1. 1 Whether the Minister is obliged to accord procedural fairness/natural justice to tenants before issuing a notice under s 47(1) of the Northern Territory National Emergency Response Act 2007 (Cth)
  2. 2 Whether entering into 40 year sub-leases is contrary to the interests of members of the Housing Associations as a whole and actionable under s 109 of the Associations Act 2003 (NT) and s 166 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
  3. 3 Whether interlocutory relief (injunctions) should be granted restraining the Minister, Housing Associations, and other parties from taking certain actions pending final determination

Ratio Decidendi

There is a serious question to be tried as to whether the Minister is obliged to accord the tenants affected by a proposed notice under s 47(1) of the NER Act clear information about the extinguishment of their tenancy rights and a fair opportunity to be heard. The current measures have not adequately discharged that obligation. There is also a serious question to be tried in respect of whether the execution of the proposed sub-leases by Housing Associations is contrary to the interests of members as a whole in the absence of the compulsion threat. The balance of convenience favours restraining the Minister and the other parties from acting as proposed until the affected persons are...

Court Disposition

Interlocutory injunctions granted

Orders

  • Minister restrained from giving a notice under s 47(1) of the Northern Territory National Emergency Response Act 2007 (Cth) until further order, pending satisfaction of procedural fairness obligations.
  • Housing Associations, Director, and Northern Territory restrained from entering into/giving effect to sub-leases of specified lands with each other until trial or further order.