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CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER) ACT 2006 - SECT 169.5

Applying for and granting leave

Who may apply for leave?

  (1)   A person referred to in paragraph   169 - 1(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings.

Court to grant the application in certain circumstances

  (2)   The Court must grant the application if it is satisfied that:

  (a)   it is probable that the corporation will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and

  (b)   the applicant is acting in good faith; and

  (c)   it is in the best interests of the corporation that the applicant be granted leave; and

  (d)   if the applicant is applying for leave to bring proceedings--there is a serious question to be tried; and

  (e)   either:

  (i)   at least 14 days before making the application, the applicant gave written notice to the corporation of the intention to apply for leave and of the reasons for applying; or

  (ii)   it is appropriate to grant leave even though subparagraph   (i) is not satisfied.

This subsection has effect subject to subsections   (3) and (5).

When leave is not in the best interests of the corporation

  (3)   A rebuttable presumption that granting leave is not in the best interests of the corporation arises if it is established that:

  (a)   the proceedings are:

  (i)   by the corporation against a person who is not a related party of the corporation; or

  (ii)   by such a person against the corporation;

    (including any appeal from a decision made in proceedings by or against the corporation); and

  (b)   the corporation has decided:

  (i)   not to bring the proceedings; or

  (ii)   not to defend the proceedings; or

  (iii)   to discontinue, settle or compromise the proceedings; and

  (c)   all of the directors who participated in that decision:

  (i)   acted in good faith for a proper purpose; and

  (ii)   did not have a material personal interest in the decision; and

  (iii)   informed themselves about the subject matter of the decision to the extent they reasonably believed to be appropriate; and

  (iv)   rationally believed that the decision was in the best interests of the corporation.

Note:   Related party is defined in section   293 - 1.

  (4)   A director's belief that the decision was in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in his or her position would hold.

Decision taken to give effect to Native Title legislation obligation

  (5)   The Court must not grant the application if:

  (a)   the corporation has decided:

  (i)   not to bring the proceedings; or

  (ii)   not to defend the proceedings; or

  (iii)   to discontinue, settle or compromise the proceedings; and

  (b)   an officer or employee of the corporation made that decision:

  (i)   in good faith; and

  (ii)   with the belief that making the decision was necessary to ensure that the corporation complies with a Native Title legislation obligation.


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