CORPORATE AFFAIRS COMMISSION v DAVENPORT COMMUNITY COUNCIL INC [2025] SASC 28

Applicant: CORPORATE AFFAIRS COMMISSION Counsel: MS A DOECKE SC WITH MS E DENBIGH - Solicitor: CROWN SOLICITOR'S OFFICE Respondent: DAVENPORT COMMUNITY COUNCIL INC Counsel: MR B ROBERTS KC - Solicitor: DENTONS AUSTRALIA Interested Party: ABORIGINAL LANDS TRUST Counsel: MR S MITCHELL - Solicitor: WALLMANS LAWYERS Hearing Date/s: 03/02/2025 File No/s: CIV-24-009786 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. In the Matter of DAVENPORT COMMUNITY COUNCIL INC CORPORATE AFFAIRS COMMISSION v DAVENPORT COMMUNITY COUNCIL INC [2025] SASC 28 Decision of the Honourable Associate Justice Bochner 13 March 2025 STATUTES - ACTS OF PARLIAMENT - INTERPRETATION LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS This is an application for the winding up of Davenport Community Council Inc. Whether s 41 of the Associations Incorporation Act requires an order of the Supreme Court for the winding up of an association on the certificate of the Commission. Held: An order of the Court is required where the winding up occurs on the issue of a certificate of the Commission. Associations Incorporation Act 1985 (SA); Corporations Act 1989; Corporations Act 2001 (Cth), referred to. National Acceptance Corp Pty Ltd v Benson (1988) 13 ACLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; Disorganized Developments Pty Ltd & Ors v State of South Australia [2023] HCA 22; Duncan v Bert Farina Constructions Pty Ltd [2024] SASCA 67, considered. -- 1 of 19 -- -- 2 of 19 -- CORPORATE AFFAIRS COMMISSION v DAVENPORT COMMUNITY COUNCIL INC [2025] SASC 28 CIVIL 1 The Davenport Community Council Inc (“the DCCI”) was registered as an incorporated association in about 1974. It is based in Davenport, on the outskirts of Port Augusta, and comprises a community of about 38 houses and with a permanent population of between about 150 and 175 people. Davenport is the location of sites of cultural significance to Aboriginal people and ceremony continues on the land to this day. 2 Davenport was established in the 1930’s as Umeewarra Mission. The Misson provided a home and school for Aboriginal children who were placed there for a range of reasons, some on a voluntary basis and some on an involuntary basis. The DCCI was established in around 1974 to run the community of Davenport, while another entity ran the children’s home. Since that time, the DCCI has run the administration, municipal services, adult training centre, and homemakers’ program and has managed the services for the welfare of the community, such as housing, employment and health services. The Aboriginal Lands Trust (“the ALT”) granted 99 year leases to the DCCI with respect to 2 parcels of land in 1979 (with respect to what is referred to as Community Land) and 1981 (with respect to what is referred to as Lakeview Land). The DCCI uses some of this land for its operations and subleases some of it. 3 Since 2005, the amount of funding received by the DCCI has declined, as a result of which the services which it has been able to offer have also declined. 4 The objects of the DCCI are set out in its Constitution, which was adopted in 2021. They are to: • Establish, promote, manage, operate and co-ordinate services, facilities and programs for the advancement and welfare of the Davenport Aboriginal Community; • Strengthen relationships between the Aboriginal and non-Aboriginal community, business members and service providers; • Address and improve issues such as equity in health, finances, education, transport, housing, cultural recognition, and retention of heritage for the Davenport Aboriginal Community and its residents; • Protect and maintain Aboriginal sites within the Davenport Community; • Identify opportunities that lead to the establishment of employment through new and existing business developments, support those new businesses through provision of support in technology, business development and -- 3 of 19 -- [2025] SASC 28 Associate Justice Bochner 2 allowance of the use of Davenport Community assets that support the Davenport Community and its people; • Respond to new initiatives and opportunities for Aboriginal families, Elders and individuals that facilitate positive change and outcomes; • Work with the wider community to build relationship, opportunities, and capacity, to the mutual benefit of all parties, and to advance the organisation, its community and its people; • Secure funding, where appropriate, for the sustainability and growth of the association, its community and members.1 5 The DCCI has an active role in supporting the needs of its community. Until the end of 2024, it delivered a number of funded programs, which serviced both Davenport and Port Augusta. It also acts as a community social and cultural hub and as an advocate for the community. It is a source of support for community members, offering services such as assistance with interpreting, advocating for community members with outside agencies, mediating family disputes, and assisting with housing issues. It runs community events and manages emergencies, such as that caused by the COVID-19 pandemic. 6 On 21 May 2021, the ALT appointed a manager to manage the Community Land and the Lakeview Land. The manager required the DCCI to vacate the land immediately, which led to an interruption to the various programs and services it provided from those premises. The DCCI instructed a lawyer (who I will refer to as “the lawyer”) to act for it in relation to various issues. The lawyer acted for the DCCI from 2021 to 2024. Ultimately, a dispute developed between the DCCI and the lawyer about the lawyer’s fees, which prevented the finalisation of the 2022 audited accounts. 7 In February 2024, the DCCI received a letter from Consumer and Business Services (“CBS”), which advised that the DCCI was in default of various obligations pursuant to the Associations Incorporation Act 1985 (SA) (“the Act”) and requested urgent rectification of this non-compliance. These defaults related to the failure of the DCCI to submit its Annual Information Statement of Financial Reports for both 2022 and 2023 to the Australian Charities and Not-for-profits Commission (“the ACNC”), which led, in turn, to a failure to lodge periodic returns with CBS for the same periods. CBS required rectification of these breaches by 8 March 2024. It also advised that the DCCI was in breach of the requirement that it submit audited accounts with an auditor’s report to its members at a general meeting. It required proof of rectification of this breach by 26 February 2024. It appears that, by this time, the DCCI’s relationship with the lawyer had broken down and he was unable to assist. 1 FDN 17, LN-1. -- 4 of 19 -- [2025] SASC 28 Associate Justice Bochner 3 8 On 15 May 2024, the Corporate Affairs Commission (“the applicant”) issued a notice of breach to the DCCI.2 The breaches identified by the applicant were: 1. Failure to comply with financial reporting obligations as a prescribed association under s 36 of the Act; 2. Failure to comply with the obligation to present 2022 and 2023 audited financial statements to members under s 35(6) of the Act; and 3. Failure to hold an annual general meeting in breach of s 39(1) of the Act and clause 8.1 of the DCCI’s Rules. 9 The DCCI was required to rectify all of the breaches by 31 July 2024. The notice concluded with the words: Should the Association fail to remedy the breaches as detailed above within the timeframes detailed in this notice, I foreshadow that the Commission intends to issue a certificate with the consent of the Minister to wind up the Association and will rely on this notice for that purpose. 10 I understand that, by the time it received the notice, the DCCI had held the required annual general meeting.3 11 Throughout this time, Ms Ngatokorua, the DCCI’s Chief Executive Officer was endeavouring to resolve the dispute about the lawyer’s fees. To this end, she had many discussions with the DCCI’s accountants and auditors and with the lawyer. In addition, she engaged with an organisation called Many Rivers to assist and also contacted JusticeNet to arrange alternative legal advice. 12 On 14 October 2024, the applicant issued a certificate to wind up the DCCI. Ms Ngatokorua immediately notified its funding bodies, which has led to the funding it receives for the programs that it offers being placed in jeopardy. 13 Since that time, the dispute about the lawyer’s fees has been resolved, which has led to the finalisation of the outstanding audited accounts. They were tabled at an annual general meeting on 21 January 2025. It is expected that the 2024 audited statements will be finalised by the end of February 2025. The 2023 audited statements have now been lodged with the ACNC. I understand that all of the breaches underpinning the applicant’s certificate have been rectified. This action 14 This action was commenced by the applicant on 15 October 2024, when it filed an originating application which sought the following orders: 2 Ibid, LN-15. 3 Ibid, [129]. -- 5 of 19 -- [2025] SASC 28 Associate Justice Bochner 4 1. The Respondent is wound up pursuant to s 41 of the Associations Incorporation Act 1985 (SA). 2. The Court appoint Andrejs Janis Strazdins or BRI Ferrier Adelaide Pty Ltd as liquidator for the Respondent. 3. The Respondent pay the Applicant’s costs and expenses of and incidental to this application such costs to be paid out of the property of the Respondent as costs and expenses of its winding up.4 15 On 13 November 2024, the ALT filed a notice of appearance, in which it purported to be an interested party, on the basis that it was a creditor of the DCCI, in the sum of approximately $1,000,000. It advised of its intention to support the application for winding up. 16 At the first directions hearing on 15 November 2024, I adjourned the matter to allow the DCCI time to obtain legal advice. At this time, the lawyer for the ALT advised that it might seek the appointment of a provisional liquidator if there was likely to be a significant delay in the appointment of a liquidator. 17 The directions hearing was adjourned to 5 December 2024. At this time, the applicant pressed for the appointment of a liquidator. The respondent sought a further adjournment to allow it to engage with members of parliament about its winding up. The ALT advised that it intended to apply for the appointment of a provisional liquidator on an urgent basis. I set a timetable for the filing of affidavit material, and listed the originating application for hearing on 18 March 2025. 18 On 19 December 2024, the ALT filed an application, seeking the appointment of a provisional liquidator and for the urgent hearing of the application.5 This application was listed for directions on 20 December 2024. At the commencement of the hearing, Mr Roberts KC, who appeared on behalf of the DCCI questioned the standing of the ALT to seek such an order. Ms Denbigh, who appeared on behalf of the applicant, also questioned the existence of a power to appoint a provisional liquidator, in circumstances where the applicant has issued a certificate to wind up the DCCI. It became clear in the course of the exchange between the parties that there was a fundamental difference in the interpretation of s 41(8) of the Act by the applicant and the DCCI. At the request of the parties, I brought forward the hearing date for the originating application to 3 February 2025, and adjourned for mention the ALT’s application for the appointment of a provisional liquidator to that day. The hearing on 3 February 2025 19 Before the hearing on 3 February 2025, the DCCI filed affidavits to establish its solvency and to address the breaches on which the Commissioner’s certificate 4 FDN 1. 5 FDN 12. -- 6 of 19 -- [2025] SASC 28 Associate Justice Bochner 5 was based. The applicant objected to the admissibility of this material, on the basis that it would only be relevant to any discretionary power that the Court might have to wind up the association. The applicant’s position was that no such discretion resided in the Court, and that the DCCI was in fact already wound up (although the process itself was yet to commence with the appointment of the liquidator). The ALT, in turn, sought to rely on the material that it filed in support of its application to have a provisional liquidator appointed. The DCCI objected to the admissibility of all of this material on the basis that it impermissibly extended the scope of the hearing. 20 Ultimately, the question of the admissibility of the evidence was resolved on the basis that the matter would proceed on the question of statutory interpretation: if the applicant was successful in its interpretation of s 41 of the Act, then there was no room for the Court to exercise any discretion as to the winding up of the DCCI and the material relied on by the DCCI would be irrelevant; conversely, if the interpretation contended for by the DCCI was found to be correct, then the applicant’s originating application would be dismissed. I determined that the material relied on by the interested party was not admissible, on the basis that it dealt with matters not within the scope of the originating application. 21 Before examining the arguments of the parties, it is necessary to set out the terms of s 41 in full. It provides: 41—Winding up of incorporated associations (1) Subject to the succeeding provisions of this Part, an incorporated association may be wound up— (a) by the Supreme Court; or (b) voluntarily; or (c) on the certificate of the Commission issued with the consent of the Minister. (2) An incorporated association is declared to be an applied Corporations legislation matter for the purposes of Part 3 of the Corporations (Ancillary Provisions) Act 2001 in relation to the provisions of Parts 5.4B, 5.5, 5.6, Divisions 1 and 2 of Part 5.7B, Division 3 of Part 5.9 and Part 5A.1 of the Corporations Act 2001 of the Commonwealth, subject to the following modifications: (a) the modifications necessary to give effect to this section and the succeeding provisions of this Part; and (b) such other modifications (within the meaning of Part 3 of Corporations (Ancillary Provisions) Act 2001) as may be prescribed by the regulations. (3) The grounds on which an incorporated association may be wound up by the Supreme Court are as follows: (a) that the association has by a special resolution resolved that it be wound up by the Court; or -- 7 of 19 -- [2025] SASC 28 Associate Justice Bochner 6 (b) that— (i) the association has not commenced any activity or function; and (ii) more than one year has elapsed since the date of its incorporation; or (c) that the association is unable to pay its debts; or (d) that members of the committee of the association have acted in the affairs of the association in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members; or (e) that affairs of the association are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or in a manner that is contrary to the interests of the members as a whole; or (f) that an act or omission, or a proposed act or omission, by or on behalf of the association was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members or was or would be contrary to the interests of the members as a whole; or (g) that the Court is of the opinion that it is just and equitable that the association be wound up. (4) For the purposes of subsection (3), if— (a) a creditor, by assignment or otherwise, to whom the association is indebted in a sum exceeding $1 000 then due, has served on the association a demand, signed by or on behalf of the creditor, requiring the association to pay the sum so due and the association has, for three weeks after service of the demand, failed to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor; or (b) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the association is returned unsatisfied in whole or in part; or (c) the Court, after taking into account any contingent and prospective liabilities of the association, is satisfied that the association is unable to pay its debts, the association is to be taken to be unable to pay its debts. (5) Where an application has been filed with the Court for the winding up of an incorporated association on the ground that it is unable to pay its debts, the association is not, without the permission of the Court, entitled to resolve that it be wound up voluntarily. (6) Subject to subsection (5), an incorporated association may, by a special resolution, resolve that it be wound up voluntarily. (7) The grounds on which the Commission may issue a certificate for the winding up of an incorporated association are as follows: -- 8 of 19 -- [2025] SASC 28 Associate Justice Bochner 7 (a) that the association has contravened or failed to comply with a condition imposed in relation to the association by the Commission or the Minister under this Act; (b) that the incorporation of the association has been obtained by mistake or fraud; (c) that the association has, after notice by the Commission of any breach of this Act or the rules of the association, failed, within the time referred to in the notice, to remedy the breach; (d) that the association has not, within three months of notice being given by the Commission under section 42, requested the Commission to transfer its undertaking to another body corporate; (e) that the association is defunct. (8) For the purposes of this Act, the winding up of an incorporated association on the certificate of the Commission commences on application to the Supreme Court by the Commission and lodgement with the Court of a copy of the certificate and is to proceed as if the association had by special resolution resolved that it be wound up by the Court. (9) The Supreme Court may, on an order being made for the winding up of an incorporated association by the Court (including a winding up on the certificate of the Commission), if the Commission nominates a person who is not a registered company liquidator for appointment as the liquidator of the association, appoint the person so nominated as the liquidator of the association. (10) The Commission may, in relation to the voluntary winding up of an incorporated association, approve the appointment of a person who is not a registered company liquidator as the liquidator of the association. (11) The reasonable costs of a winding up are payable out of the property of the association. 22 Two points are worth noting. 23 First, subs 41(1) treats winding up by the Supreme Court, voluntary winding up and winding up on the certificate of the Commission as separate processes. This is, however, subject to the succeeding provisions of the Part including the other subsections of s 41 itself. Indeed, subs 41(6) infers that, while voluntary winding up and winding up by the Court appear as separate methods of winding up in subs 41(1), voluntary winding up is, in reality, a subset of winding up by the Supreme Court. This is on the basis that subs 41(6) provides that voluntary winding up of an incorporated association requires a special resolution of its members, which then leads back to subs 41(3)(a), which provides that the passing of a special resolution by the members of an incorporated association to the effect that it be wound up, is one of the grounds on which an incorporated association may be wound up by the Court. -- 9 of 19 -- [2025] SASC 28 Associate Justice Bochner 8 24 Thus, it is clear that, while presented as separate methods of winding up in subs 41(1), voluntary winding up is a subset of the broader category of winding up by the Supreme Court. 25 Second, the grounds for winding up by the Court and those for winding up on the certificate of the Commission are different. 26 The applicant contends that the winding up of an incorporated association on the certificate of the Commission commences when the Commission files an application to the Supreme Court with the lodgement of the certificate. The decision to wind up is made by the Commission, with the consent of the Minister; that decision is then given effect by the Court. The decision to wind up is made first, and the winding up commences at a later date, as specified by subs 41(8). The Court’s role is limited to giving effect to the administrative decision made by the Commission. The Court retains no discretion as to whether the winding up should commence. 27 The applicant says that s 41(8) of the Act serves two purposes. It identifies the time that the winding up on the certificate of the Commission commences and it specifies the process by which the winding up is to occur. The process is identified by deeming the winding up to occur as if it had occurred by way of a special resolution to wind up. This means that, once the application has been filed by the Commission and the certificate has been lodged, the application is to be treated as if the association had resolved by special resolution that it be wound up. 28 This deeming provision allows the Court to treat the application as a non-contentious application and to oversee the winding up process. The applicant acknowledges that this interpretation may lead to there being a period of time, in between the filing of the application, and the appointment of a liquidator, when no one is in control of the assets of the association. 29 The applicant contends that the winding up of the DCCI commenced on 14 October 2024, the date on which the originating application was filed and the certificate was lodged with the Court. The Court has no role in the process save to appoint a liquidator and then oversee the liquidation as necessary; it has no discretion with respect to the decision to wind up. Nor does the DCCI have a role, save, perhaps to contend that a different liquidator be appointed to the one nominated by the applicant. 30 The DCCI takes a very different view to the interpretation of s 41 of the Act. It says that the winding up of the DCCI has not commenced and it will only be wound up if an order for winding up is made by the Court. Whether the winding up order is made is within the discretion of the Court. 31 Mr Roberts submits that s 41(8) is a deeming provision which creates two legal fictions. The first is that the winding up of an incorporated association on the certificate of the Commission is to proceed as if the association had passed a -- 10 of 19 -- [2025] SASC 28 Associate Justice Bochner 9 special resolution that it be wound. The second is that, regardless of the date on which the winding up order is made, the winding up is deemed to have commenced on the date that the application for winding up was filed. 32 The DCCI says that it is clear from the terms of s 41(3)(a) that, where an association passes a special resolution that it be wound up, the resolution does not become effective and the winding up does not commence until an order for winding up is made by the Supreme Court. Consequently, if winding up on the certificate of the Commission is to be treated as a winding up on the basis of a special resolution, then it, too, requires an order of the Court before the winding up commences. Once that order has been made, the date of the commencement of the winding up is back dated to the date on which the application was filed. 33 Mr Roberts submits that the construction contended for by the applicant fails to address the question of the purpose of the application to the Court. The application serves no purpose if no exercise of judicial power is required to make an order for winding up. The fact that an application to the Court must be made indicates that an exercise of judicial power is required before winding up commences; if it were otherwise, there would be no need for an application to be filed with the Court. 34 Mr Roberts further submits that, if the construction contended for by the applicant were correct, the result would be strange. The applicant’s interpretation leads to the commencement of winding up before a liquidator has been appointed. Winding up requires the appointment of a liquidator; it makes no sense to have a winding up commencing before there is a person in place to carry out the functions of a liquidator. Further, if s 41(8) was doing no more than providing the mechanism by which a liquidator is appointed, different language would be used. 35 Mr Roberts says that the applicant has ignored the use of the word “may” in the chapeau to s 41(3). Both the applicant and the DCCI agree that, pursuant to s 41(8), winding up on a certificate is to proceed as if the association had been wound up by a special resolution. In light of that, it cannot be maintained that the Court does not retain a discretion as to the making of the winding up order. Section 41(3) makes it clear that the Court retains such a discretion, even where the members of the association have passed a special resolution for its winding up. It follows that the Court must retain a discretion as to the making of an order to wind up on the Commission’s certificate, because if such a winding up is to proceed as if the members had passed a special resolution, the order for winding up must still be made by the Court. It has not occurred administratively. 36 The DCCI contends that the applicant’s interpretation of s 41(8) leads to incongruity. In its own originating application, the first order sought by the applicant is for the winding up of the DCCI. At the same time, it says that the winding up has already commenced, albeit without the appointment of liquidator. The DCCI submits that the legislature cannot have intended the Act to operate in such a way, so as to limit the involvement of the Court to a mere administrative -- 11 of 19 -- [2025] SASC 28 Associate Justice Bochner 10 matter. If the legislature had wished to make the winding up of an association on the Commission’s certificate an extra-curial act, then it would have given the Commission the power to appoint a liquidator. 37 Further, the interpretation place on the legislation by the Commission leads to uncertainty, because it leads to the inevitability of a period of time when no one is in control of the association’s assets. Between the period that the application is filed with the Court, and the appointment of the liquidator, there is no one in control of the company, because the association’s management committee has lost its authority, but no liquidator has been appointed. The difficulty caused by this construction is evident in this matter, where the ALT has sought to have a provisional liquidator appointed to fill this gap in the DCCI’s management. 38 The DCCI further submits that the applicant’s interpretation leads to a strange outcome in that it would allow the winding up of an association regardless of the seriousness or triviality of the grounds on which the certificate has been issued, or whether the breach which led to the issuing of the certificate has been rectified. Given that there are a broad range of grounds on which the Commission can issue a certificate, discretion must lie with the Court to determine whether winding up is appropriate. 39 Mr Roberts submits that the Act must be considered in its historical context. At the time that it came into effect, the Corporations Act 1989 provided that the winding up of a company was deemed to commence on the date that the application for winding up was filed with the Court, although it was clear that the winding up itself was only effected by the court order. The process was deemed to commence on a date earlier than the order to ensure that the relation back date was not affected by any delay in the making of the order to wind up. This was explained by the New South Wales Court of Appeal in National Acceptance Corp Pty Ltd v Benson,6 where the Priestley JA said: Section 365(2) deems the winding up to have commenced at the time of the filing of the application for the winding up. Thus, at the time of any disposition, transfer or alteration which takes place after the filing of the application for the winding up but before the making of a winding up order, there is in fact no winding up on foot. Once the winding up order has been made however, the statute requires that the commencement of the winding up must be treated as being the time of the filing of the application for the winding up. This seems to me to mean that the commencement of the winding up must be so treated at least for all purposes incidental to the working of the Companies Code. So, for the actual fact that the transaction took place when there was no winding up on foot there must be substituted the legal fact for Code purposes that the transaction took place after the commencement of the winding up.7 40 While this is no longer the situation prevailing under the Corporations Act 2001, the provision remains in the Act. 6 (1988) 13 ACLR 1. 7 Ibid, 7-8. -- 12 of 19 -- [2025] SASC 28 Associate Justice Bochner 11 41 I note that, in examining the terms of s 41 of the Act, the DCCI made reference to a number of cases from other jurisdictions. As the regime in other jurisdictions is quite different to that in South Australia, I will not spend time considering those cases here. 42 Mr Roberts contends that the winding up of the DCCI has not commenced, nor will it commence until a court order to that effect is made. Once that court order is made, the date of the winding up is back dated to the date of the filing of the application. It is for the Court to determine whether it should exercise the discretion as to whether the DCCI should be wound up. 43 In its written submissions, the DCCI addressed the exercise of the Court’s discretion to wind up. At the commencement of the hearing, the parties agreed that the fate of the originating application rested on the interpretation of s 41 of the Act. If I accepted the interpretation contended for by the applicant, then the DCCI should be (and in fact has already been) wound up; if I accepted the interpretation promoted by the DCCI, then I should dismiss the originating application. As a result, I do not consider the matters raised by the DCCI in relation to the discretion to wind it up. Consideration 44 In CIC Insurance Ltd v Bankstown Football Club Ltd,8 the High Court said: Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.9 (footnotes omitted) 45 In the case of SZTAL v Minister for Immigration and Border Protection & Anor,10 Kiefel CJ, Nettle and Gordon JJ said: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of 8 (1997) 187 CLR 384. 9 Ibid, 408. 10 [2017] HCA 34. -- 13 of 19 -- [2025] SASC 28 Associate Justice Bochner 12 construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. … Statutes in pari materia, in the sense that they deal with the same subject matter along the same lines, may form part of the context for the process of construction. Acts of this kind are said to form a kind of code or scheme, which arises from the degree of similarity involved. Without this feature there is no warrant to transpose the meaning of a word from one statute to another or to assume, where the same words are used in a subsequent statute, that the legislature intended to attach the same meaning to the same words. 11 (footnotes omitted) 46 Gageler J quoted with approval the passage from CIC Insurance that I have set out, and then went on to say: The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies". Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle".12 (footnotes omitted) 47 In Disorganized Developments Pty Ltd & Ors v State of South Australia,13 the High Court considered the question of statutory construction against the background of the Legislation Interpretation Act 2021 (SA). It said: A purposive approach to the interpretative task is required by s 14(1) of the Legislation Interpretation Act 2021 (SA), which provides that "the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation". The court may consider the purposes of the relevant legislation in determining whether there is more than one possible construction but may not rewrite legislation in the light of its purposes. Any meaning must be consistent with the language in fact used in the relevant legislation.14 11 Ibid, [14] – [24]. 12 Ibid, [38] – [39]. 13 [2023] HCA 22. 14 Ibid, [15]. -- 14 of 19 -- [2025] SASC 28 Associate Justice Bochner 13 48 All of these principles were applied by the Court of Appeal in South Australia in the recent case of Duncan v Bert Farina Constructions Pty Ltd,15 where, after referring to CIC Insurance and SZTAL, the Court said: In the case of South Australian statutes, s 14 of the Legislation Interpretation Act 2021 (SA) expressly provides that the interpretation that best achieves the purpose or object of the Act (even if not expressly stated in the Act) is to be preferred to any other interpretation. Any inconvenience or improbability in the result of a construction may indicate a meaning other than the literal meaning of the relevant provision. Whether a particular construction assists or interferes with the coherent operation of the relevant legislation scheme may also be a relevant consideration. At the same time, contextual and purposive indications may not be used to rewrite the legislation; the meaning derived must be consistent with the language in fact used in the relevant legislation. Further, the purpose must be one which may be discerned from the legislation itself, read in the context of any relevant extrinsic material. Legislation must not be construed on the basis of some a priori assumption as to the statutory purpose, or as to the desirable reach or operation of the relevant provision.16 (footnotes omitted) 49 All of these cases make it clear that, when determining the true meaning of s 41, it is appropriate to consider the legislative framework that was in place at the time that s 41 of the Act came into effect. 50 When the Act first came into operation on 28 June 1985, s 41 was in the following terms: 41.(1) Subject to the succeeding provisions of this Part, an incorporated association may be wound up- (a) by the Supreme Court; (b) voluntarily; or (c) on the certificate of the Commission issued with the consent of the Minister. (2) The regulations may provide that the provisions of Part XII of the Companies (South Australia) Code apply, with such modifications as may be necessary for the purpose or as may be prescribed, to a winding up under this section as if an incorporated association were a company as defined in the Code. (3) The grounds on which an incorporated association may be wound up by the Supreme Court are as follows: (a) that the association has by a resolution passed in accordance with subsection (4) resolved that it be wound up by the Court; (b) that- 15 [2024] SASCA 67. 16 Ibid, [42] – [44]. -- 15 of 19 -- [2025] SASC 28 Associate Justice Bochner 14 (i) the association has not commenced any activity or function; and (ii) more than one year has elapsed since the date of its incorporation; (c) that the association is unable to pay its debts; (d) that the members of the committee of the association have acted in the affairs of the association in their own interests rather than in the interests of the members as a whole, or in any other manner that appears to be oppressive or unreasonable to other members; or Winding up of incorporated association. (e) that the Court is of the opinion that it is just and equitable that the association be wound up. (4) A resolution of an incorporated association that the association be wound up by the Court- (a) where the rules of the association provide for the membership of the association-must be passed by a special resolution of the association or in such other manner as the rules of the association may provide; (b) where the rules of the association do not provide for the membership of the association-subject to the rules of the association, may be passed in such manner as the association may determine. (5) For the purposes of subsection (3), if- (a) a creditor by assignment or otherwise to whom an association is indebted in a sum exceeding one thousand dollars then due has served on the association a demand, signed by or on behalf of the creditor, requiring the association to pay the sum so due and the association has, for three weeks after service of the demand, failed to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor; (b) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of an association is returned unsatisfied in whole or in part; or (c) the Court, after taking into account any contingent and prospective liabilities of an association, is satisfied that the association is unable to pay its debts, the association shall be deemed to be unable to pay its debts. (6) The grounds on which the Commission may issue a certificate for the winding up of an incorporated association are as follows: (a) that the association has contravened or failed to comply with a condition imposed in relation to the association by the Commission or the Minister under this Act; (b) that the incorporation of the association has been obtained by mistake or fraud; (c) that the association has, after notice by the Commission of any breach of this Act or the rules of the association, failed, within the time referred to in the notice, to remedy the breach; -- 16 of 19 -- [2025] SASC 28 Associate Justice Bochner 15 (d) that the association has not, within three months of notice being given by the Commission under section 42, requested the Commission to transfer its undertaking to another body corporate. (7) The Commission may, in relation to the voluntary winding up of an incorporated association under this section, approve the appointment of a person to act as liquidator who is not a registered company liquidator. (8) The Commission may, in relation to a winding up of an incorporated association by the Commission under this section, appoint a person (who may, but need not, be a registered company liquidator) to act as liquidator. (9) The Commission shall cause notice of a decision to appoint a liquidator under subsection (8) to be published in the Gazette and in a daily newspaper circulating generally throughout the State. (10) The reasonable costs of a winding up shall be payable out of the property of the association. (11) A member of an incorporated association is not liable, except as may be provided in the rules of the association, for the costs and expenses of a winding up of the association. 51 As can be seen the winding up of an association on the certificate of the Commission was an administrative action. The Commission had the power both to appoint and to approve the appointment of a liquidator. No involvement of the Court was required. The Act was silent on the question of the date of commencement of the winding up. 52 Section 41 in its current form was introduced by amendments which came into effect in 1992. This amendment introduced the need for an application to the Supreme Court to give effect to a Commission’s certificate to wind up an association. It also removed the Commission’s power to appoint or approve the appointment of a liquidator. 53 At the time that these amendments came into effect, the Corporations Act 1989 dealt with the winding up of companies. The time for the commencement of winding up was provided for in Section 465 of that Act in the following terms: 465. (1) Where, before the filing of the application, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution and, unless the Court on proof of fraud or mistake thinks fit otherwise to direct, all proceeding taken in the voluntary winding up shall be deemed to have been validly taken. (2) In any other case the winding up shall be deemed to have commenced at the time of the filing of the application for the winding up. 54 Thus it is clear that, in the context of a company incorporated under the Corporations Act 1989, where an application to the Court is required to effect a winding up of the company, while the process itself does not commence until the -- 17 of 19 -- [2025] SASC 28 Associate Justice Bochner 16 order for winding up is made, a legal fiction is created whereby the winding up is deemed to have commenced at the time that the application was filed. 55 I consider that this historical context is of assistance in determining the true construction of s 41 in its current form. It is clear that the legislature sought to depart from the original formulation of s 41, which allowed such winding up to occur purely as an administrative action by the Commission on the occurrence of certain events. It specifically introduced the need for there to be an application to the Court, and removed from the Commission the power to appoint a liquidator, a necessary prerequisite to the commencement of any winding up process. This must lead to the inference that the Court was expected to exercise judicial power in the winding up process, not merely undertake the administrative task of appointing a liquidator, which until that time, had fallen within the power of the Commission. 56 The introduction of the time for the commencement of the winding up is also a new feature of the 1991 amendments. One must assume that, prior to those amendments, the winding up commenced at the time that the Commission issued the certificate. On the introduction of the amendments, three times become available for the commencement of the winding up: the date on which the certificate is issued, the date that the application is filed with the Court, or the date on which the Court appoints a liquidator. The legislature has chosen the date on which the application is filed with the Court as the date on which the winding up is deemed to commence. This is clearly a legal fiction of the same type as that created by s 465 of the Corporations Act 1989: given the need for Court involvement, and the fact that, in reality, winding up cannot commence until a liquidator has been appointed, any commencement date earlier than this must be a legal fiction. It is an artificial ante-dating of the commencement of the winding up. 57 The second reading speech of the 1991 amendments is silent on the purpose of the amendments to s 41. It must be inferred, however, that the purpose was to introduce the involvement of the Court in a winding up of an association on the certificate of the Commission in a way that required an exercise of judicial power. Otherwise, the amendments would achieve no useful purpose. If the only role of the Court was to appoint the liquidator, then the amendment appears largely pointless; it does no more than add an extra layer of complexity and expense to the previously streamlined process that was established by the original text of s 41. The only way to give meaning to the amendment is to read it as vesting in the Court the discretion whether or not to make the winding up order. 58 I consider that the balance of s 41(8) and s 41(9) support this interpretation. The balance of s 41(8) provides that the winding up on the certificate of the Commission “is to proceed as if the association had by special resolution resolved that it be wound up by the Court”. The only process that s 41 requires of a special resolution to wind up an association is that it be effected by way of a Court order: s 41(3)(a) provides that the association’s having passed a special resolution that it be wound up is one of the grounds on which the Court may wind up an association. This term would be rendered meaningless if it was not interpreted as requiring an -- 18 of 19 -- [2025] SASC 28 Associate Justice Bochner 17 order of the Supreme Court for the winding up of an association on the certificate of the Commission. 59 Consideration of s 41(9) leads to the same conclusion. Subsection (9) deals with the appointment of a liquidator, and reads: The Supreme Court may, on an order being made for the winding up of an incorporated association by the Court (including a winding up on the certificate of the Commission)… 60 This can only mean that an order of the Court is required where the winding up occurs on the issue of a certificate of the Commission. If the Court had no role to play other than the appointment of a liquidator, then the inclusion of the words in parentheses would be otiose. This must lead to the conclusion that, as with winding up on the passing of a special resolution by the association, winding up on the certificate of the Commission requires an order of the Supreme Court. 61 Following this analysis, I must conclude that the construction contended for by the DCCI is the correct one. While there is no doubt that the applicant has issued a certificate for the winding up of the DCCI, it has not yet been wound up. There remains a discretion with the Court as to whether such an order should be made. 62 As agreed between the parties, on reaching this conclusion, I must dismiss the originating application. -- 19 of 19 --