Adnyamathanha Traditional Lands Association v Rangelea Holdings Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION & ORS v RANGELEA HOLDINGS PTY LTD
[2023] SASC 51
Judgment of the Honourable Chief Justice Kourakis
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS
EQUITY - TRUSTS AND TRUSTEES - CLASSIFICATION OF TRUSTS
EQUITY - TRUSTS AND TRUSTEES - PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES
EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES - ACCOUNTS - LIABILITY OF TRUSTEES AND ENTITLEMENT OF CESTUI QUE TRUST
EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES - MISCELLANEOUS OTHER POWERS, DUTIES AND LIABILITIES - DUTY TO DISCLOSE DOCUMENTS
The applicants seek orders for access to trust records maintained by the respondent as trustee of the Adnyamathanha Master Trust (Master Trust) and the appointment of an inspector to investigate the administration of the Master Trust.
The first applicant, an Aboriginal corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), as agent for the Adnyamathanha people, entered into native title mining agreements under which payments of compensation for the use of Adnyamathanha land for mining purposes was to be paid into the Master Trust. The deed settling the Master Trust confers on the respondent a discretion to make distributions to ‘Sub-Groups’ of traditional owners as set out in a schedule to the deed.
The second, third and fourth applicants (the Adnyamathanha applicants) are Adnyamathanha people, common law holders of native title in Adnyamathanha land and members of a sub-group of traditional owners identified in the schedule to the deed.
The respondent has refused the applicants’ requests for access to trust records relating to its administration of the Master Trust on the basis that, inter alia, the applicants are not beneficiaries of the Master Trust, which it contends is a charitable trust.
Held:
1. The Master Trust is a private discretionary trust.
2.The Adnyamathanha applicants, as beneficiaries of the Master Trust, are entitled to inspect and copy the trust accounts showing the receipt of any income, the expenditure on administrative costs and the making of distributions for the financial years ending 2018 to 2022 under the general law as adapted by s 84B of the Trustee Act 1936 (SA).
3.The first applicant is authorised pursuant to regulation 8 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) to bring this application.
4.The applicants have a proper interest in the Master Trust entitling them to seek the appointment of an inspector pursuant to s 84C of the Trustee Act 1936.

5. It is proper to appoint an inspector to investigate the administration of the Master Trust.
6.The respondent must immediately produce for inspection by the applicants those records specified in regulation 5(1)(k) of the Trustee Regulations 2011 (SA) which would enable the receipt and disposition of property by the Master Trust to be conveniently and properly audited for the financial years ending 2018 to 2022.

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 29-5, 37-10, 42-1, 66-1, 69-1, 69-5, 69-25, 96-1, 141-10, 169-1, 169-5, 175-1, 175-15, 180-1, 243-5, 310-5, 487-1, 487-5, 487-15, 487-20, 496-1, 496-5, 499-1, 499-5; Mining Act 1971 (SA); Native Title Act 1993 (Cth) s 57; Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 7, 8, 8A, 8B; Trustee Act 1936 (SA) ss 36, 60, 67, 69A, 84B, 84C, 84D, 84E; Trustee Regulations 2011 (SA) reg 5, referred to.
Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531; Groote Eylandt Aboriginal Trust Incorporated v Deloitte Touche Tohmatsu (No 2) (2017) 169 NTR 1; Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197; Shire of Derby-West Kimberly v Yungngora Association Inc (2007) 157 LGERA 238; Re Simersall; Blackwell v Bray (1992) 35 FCR 584; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405; Re Londonderry's Settlement; Peat v Walsh [1965] Ch 918; Rouse v IOOF Australia Trustees Limited (1999) 73 SASR 484; H Stanke & Sons Pty Ltd & Anor v von Stanke & Ors (2006) 95 SASR 425; Schmidt v Rosewood Trust Ltd [2003] 3 All ER 76; Avanes v Marshall (2007) 68 NSWLR 595, considered.

ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION & ORS v RANGELEA HOLDINGS PTY LTD
[2023] SASC 51
Civil

KOURAKIS CJ: The Adnyamathanha Traditional Lands Association (ATLA) is an Aboriginal and Torres Strait Islander corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). The second, third and fourth applicants, Reginald Wilton, Sarah Taylor and Ivan McKenzie (the Adnyamathanha applicants) are Adnyamathanha people, common law holders of native title in Adnyamathanha land and members of a sub-group of traditional owners identified in the schedule to the deed settling the Master Trust (the Trust Deed). ATLA is also a prescribed body corporate for the purpose of s 57 of the Native Title Act 1993 (Cth) (the NTA) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the PBC Regulations).
In the Adnyamathanha native title claim proceedings SG 6001/98 brought in the Federal Court (the Native Title Claim) Mansfield J made a determination of native title in favour of the Adnyamathanha people on 30 March 2009. It is the statutory function of ATLA, as a prescribed body corporate, to act as the agent or representative of the native title holders as determined by the Federal Court in those proceedings.
The respondent, Rangelea Holdings Pty Ltd (Rangelea), is the trustee of the Adnyamathanha Master Trust (Master Trust).
In May 2010 ATLA, as agent for the Adnyamathanha people, entered into a Native Title Mining Agreement (NTMA) under the Mining Act 1971 (SA) (the Mining Act) known as the Beverley 2010 Agreement (the Beverley Agreement) with Heathgate Resources Pty Ltd (Heathgate). By clause 3 of the Beverley Agreement, ATLA acknowledged the validity of certain mining tenements granted to Heathgate and agreed to grant certain other tenements on the condition that Heathgate make a ‘Production Payment’ to the Master Trust calculated on two per cent of the ‘Beverley Mine Gate Value’. It was agreed that payments would be made semi‑annually in arrears at the same time as the royalty payment made by Heathgate to the State Government under the Mining Act. By clause 12.2 of the Beverley Agreement, Heathgate may, upon receipt of written instructions from ATLA, deduct the amount of any payment made to ATLA for its general administrative purposes.
Also in May 2010 ATLA entered into a similar NTMA with Quasar Resources Pty Ltd (Quasar).
The Trust Deed constituting the Master Trust is dated 22 July 2003. The Trust Deed confers a discretion on Rangelea to make distributions to the persons named as members of ‘the Sub-Groups’ set out in the schedule to the Trust Deed. I address later in these reasons the uncertainty affecting the making of distributions arising out of the various means by which the Trust Deed allows Rangelea to make those distributions to different entities associated with the Sub-Groups.
In the 2020 calendar year, approximately $4 million was paid to Rangelea in production payments by Heathgate and Quasar. Approximately $780,000 was paid to Rangelea in the first quarter of 2021.
ATLA was placed under special administration on 26 March 2020 for a fixed period pursuant to a determination of a delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar). The office of the Registrar is styled the Office of the Registrar of Indigenous Corporations (ORIC) made pursuant to the CATSI Act. The special administrators first appointed were solicitors, Messrs Bevan Mailman and Brian Bero. The special administration was extended from time to time thereafter. On 16 April 2021 the special administration was extended but with Mr Peter McQuoid as administrator. The special administration with Mr McQuoid as administrator was also extended from time to time.
On 5 May 2021 Mr McQuoid wrote to Rangelea on behalf of the common law holders requesting access to records maintained by Rangelea relating to the administration of the Master Trust for the financial years ending 2018, 2019, 2020 and for the period 1 July 2020 to 31 March 2021. The records sought included trust statements, profit and loss statements, records showing disbursements of trust property and the current register of traditional owners.
Letters requesting records of that kind were also sent by the Adnyamathanha applicants. By letter dated 3 August 2021 Ms Taylor wrote to Rangelea requesting access pursuant to s 84B of the Trustee Act 1936 (SA) (the Trustee Act) to inspect and copy the trust records for the financial years ending June 2018 to June 2021. Mr Wilton and Mr McKenzie made similar requests at about the same time.
Rangelea refused to provide the records requested by ATLA on the grounds that:
·ATLA is neither a member of Rangelea nor an eligible beneficiary of the Master Trust;
·Rangelea has no financial role or interest in the affairs of ATLA;
·neither ATLA nor a special administrator has any power to seek access to the documents of the Master Trust;
·Mr McQuoid as special administrator does not have investigative powers relating to third parties and is not authorised to look into the affairs of Rangelea and/or the Master Trust; and
·any attempt by Mr McQuoid to investigate the affairs of Rangelea is in excess of his statutory powers.
Rangelea refused the access requests by Mr Wilton, Ms Taylor and Mr McKenzie, on the grounds that:
·the Master Trust is a charitable trust;
·the Master Trust does not have beneficiaries;
·s 84B(1) of the Trustee Act does not apply to the Master Trust;
·they are not persons who may make a request pursuant to s 84B of the Trustee Act; and
·the provisions of the Trustee Act do not apply to the trust and they are not entitled to have access to the Master Trust documents.
ATLA and the Adnyamathanha applicants have brought these proceedings seeking orders for access to the records of the Master Trust. For the reasons which follow I find that the Master Trust is a private discretionary trust. I am satisfied that the Adnyamathanha applicants, as beneficiaries of the Master Trust, are entitled to orders allowing them to inspect and make copies of the trust account records showing the receipt of any income, the expenditure on administrative costs and the making of distributions for the financial years ending 2018 to 2022 under the general law as adapted by s 84B of the Trustee Act.
I find that ATLA is authorised pursuant to regulation 8 of the PBC Regulations to bring this application as agent of the common law holders in order to obtain information on the administration of the Master Trust to put before the common law holders so that they might make informed decisions about the assignment of income derived from their native title rights and interests. ATLA has standing to bring this application for an order under the general law that it be permitted to inspect and copy trust account records, by reason of its statutory functions and status as agent of both those common law holders who are beneficiaries and those who are not. I will make orders to that effect in favour of ATLA and the Adnyamathanha applicants.
I also find that the Adnyamathanha applicants and ATLA have a proper interest in the Master Trust entitling them to seek the appointment of an inspector pursuant to s 84C of the Trustee Act. On the evidence of a director of Rangelea, Mr Vincent Coulthard, there are grounds to suspect that the production of those records alone may not reveal how much of the fund which was distributed to the Sub-Groups was disseminated between the members of the Sub-Groups, and in what proportions. An inspector is likely to discover more information in that respect. I will therefore so order.
ATLA
ATLA was first registered under the CATSI Act on 12 February 2001. On 31 July 2009 ATLA was registered under the name Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC.[1]
[1] Indigenous Corporation Number: 3743.
The CATSI Act provides a comprehensive scheme for the governance of CATSI corporations.
Under the provisions of the CATSI Act, an Aboriginal and Torres Strait Islander Corporation (a CATSI corporation) is classified as a small, medium or large corporation by reference to its gross operating income and/or the value of its consolidated gross assets.[2] Section 42-1 of the CATSI Act provides that a CATSI corporation comes into existence on its registration. A CATSI corporation has all the powers of a body corporate.[3]
[2] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).
[3] CATSI Act s 96-1.
Division 60 of the CATSI Act deals with the rules of CATSI corporations and the extent to which the rules prescribed by that Division may be replaced. Section 66-1 requires that there must be a written constitution which covers those matters which the Act specifies must be included. The constitution may be subsequently altered by special resolution and by complying with any additional steps stipulated by the constitution. A court, the Registrar or a special administrator may change a constitution.[4] A special administrator need not comply with the steps prescribed by s 69-5(1)(a)-(c) of the CATSI Act for the amendment of the constitution by the members of a CATSI corporation. The special administrator must lodge a copy of any constitutional amendment he or she makes with the Registrar.[5] The Registrar may then register the amendment. Section 499‑5(3) expressly authorises a special administrator to change the corporation’s constitution, to admit or remove persons as members of the corporation, to appoint a person as a director or secretary of the corporation or terminate a person’s appointment as such.
[4] CATSI Act s 69-5.
[5] CATSI Act s 69-25.
Section 69-1 provides that a constitution of a CATSI corporation is the constitution that is registered as such. A constitutional change made by a special administrator takes effect on the day that the change is registered. The Registrar must not register an amendment to a constitution unless the Registrar is satisfied that the changed constitution complies with the internal governance rule requirements of the CATSI Act.
A CATSI corporation must have at least five members unless the Registrar grants an exemption. A person is a member of a CATSI corporation if the person is a member on its registration or subsequently agrees to become a member. A minimum number, or proportion, of the members of a CATSI corporation must ‘meet the indigeneity requirement’ which is set out in s 29-5.[6] A CATSI corporation must maintain a register of members.[7]
[6] CATSI Act s 141-10.
[7] CATSI Act s 180-1.
Members’ obligations are dealt with by Division 147. A member of a CATSI corporation is required to contribute to the property of the corporation on winding up if the constitution so provides; otherwise, the members are not so liable. The constitution may impose other obligations on its membership.
Members may seek remedies from an appropriate court for oppressive conduct in the management of a CATSI corporation.[8] A member may inspect a corporation’s books and has rights to seek orders in respect thereof. A member may request the directors to call a general meeting. Members’ meetings are generally regulated by Chapter 5 of the CATSI Act and directors’ meetings by Part 5-3. Division 265 of Part 6-4 imposes duties on directors. Division 268 imposes duties of disclosure in cases of conflicts of interest.
[8] CASTI Act Div 166.
Part 7-8 provides for keeping the books of the corporation and for their inspection. Section 175-1 in Division 175 provides that a member may apply to a court for an order authorising the inspection of the books of a CATSI corporation. The court may only make such an order if it is satisfied that the applicant is acting in good faith and the inspection is made for a purpose connected with the bringing of proceedings. A CATSI corporation, or its directors, may allow a member to inspect the books.[9] Decisions made by the Registrar under the CATSI Act are reviewable.
[9] CATSI Act s 175-15.
The CATSI Act provides that a CATSI corporation with more than two members must have at least three directors. Section 243-5 provides that a CATSI corporation must not have more than 12 directors or such other number as might be prescribed for the purpose of that section but, an application may be made to exempt the corporation from that requirement.[10] The application is made pursuant to s 310-5.
[10] CATSI Act s 310-5.
Division 265 imposes general duties on directors to exercise a reasonable degree of care and diligence and to act in good faith and for a proper purpose. A director must not improperly use his or her position or information obtained in the course of the exercise of his or her duty. Offence provisions are also enacted in respect of improper behaviour.
Section 169-1 provides that a member, the Registrar or an officer of the corporation acting under leave granted by the court under s 169-5 may bring, or intervene in, proceedings on behalf of a CATSI corporation.
I turn next to the provisions of the CATSI Act dealing with the appointment and powers of special administrators.
Section 487-1 provides that the Registrar may put a CATSI corporation under special administration for a period specified in the determination. A special administrator cannot be appointed if a liquidator has been appointed or if the CATSI corporation is being wound up. The Registrar may appoint a special administrator on the following grounds:[11]
[11] CATSI Act s 487-5.
·the CATSI corporation has traded at a loss for at least six months during the period of 12 months before the determination is made;
·the CATSI corporation or the officers of the corporation fail to comply with, or to ensure that the corporation complies with, the provisions of the CATSI Act, the internal governance rules of the corporation or a notice given by the Registrar;
·the CATSI corporation has failed to comply with an obligation under Part 7-3;
·if the CATSI corporation is a registered native title body corporate, there has been a serious failure, or a number of failures, by the CATSI corporation to comply with its obligations under native title legislation;
·the officers of the CATSI corporation have acted in their own interests or in a way that is unfair to other members;
·the affairs of the CATSI corporation are being conducted in an oppressive manner;
·disputes between the CATSI corporation’s members are interfering with the proper conduct of its affairs; and/or
·the appointment of the special administrator is otherwise required in the interests of the members of the CATSI corporation, its creditors or in the public interest.
The period of time for which a special administrator is appointed may be extended.[12] The Registrar may terminate a special administration.[13]
[12] CATSI Act s 487-15.
[13] CATSI Act s 487-20.
The Registrar may appoint a special administrator to a CATSI corporation put under administration either as the initial special administrator or to replace an earlier appointed special administrator. The appointment has effect until the end of the period of the appointment unless terminated earlier on grounds which include the appointment of a liquidator or the resignation of the special administrator.[14]
[14] CATSI Act 505-1.

On the appointment of a special administrator, the offices of each director of a CATSI corporation and of any secretary, become vacant[15] unless the Registrar otherwise determines.[16] On the commencement of a special administration, a person other than the special administrator cannot perform or exercise, or purport to perform or exercise, a function without the written approval of the special administrator.[17] On placing a CATSI corporation under special administration, only the special administrator can deal with its property.
[15] CATSI Act s 496-1.
[16] CATSI Act s 496-5.
[17] CATSI Act s 496-10.
While a CATSI corporation is under special administration, the special administrator is responsible for the conduct of its affairs.[18] The special administrator’s powers and functions include:[19]
·control and management of the corporation’s business, property and affairs;
·any function or power which the CATSI corporation or any of its officers or members could perform or exercise if it were not under special administration; and
·the powers or functions which the CATSI corporation may hold as a trustee.[20]
[18] CATSI Act s 499-1.
[19] CATSI Act s 499-5.
[20] CATSI Act s 499-5(2). Section 499-5(3) expressly empowers the special administrator to change the corporation’s constitution.
ATLA is also a prescribed body corporate for the purposes of the NTA. The Federal Court recognised the native title of the Adnyamathanha common law holders, and determined that their native title rights were to be held by ATLA, but not as a trustee. ATLA was thereafter bound by s 57(3) to perform any functions conferred on it under the NTA and any further functions conferred on it by the PBC Regulations. By regulation 7 of the PBC Regulations ATLA assumed the function of acting as an agent of the common law holders in respect of matters relating to native title and had conferred on it the function of managing the rights and interests of the common law holders as authorised by them. Regulation 7 of the PBC Regulations confers on ATLA the function of consulting with the common law holders in accordance with regulations 8, 8A, and 8B.
Regulation 7 of the PBC Regulations relevantly provides:
7 Functions of registered native title body corporate not acting as trustee
Body corporate that does not hold native title rights and interests
(1)For the purposes of section 58 of the Act, a registered native title body corporate that is an agent prescribed body corporate in relation to native title rights and interests of common law holders has the following functions:
(a)     to act as agent of the common law holders in respect of matters relating to the native title;
(b)     to manage the rights and interests of the common law holders as authorised by the common law holders;
(c)     to hold in trust money connected with the native title rights and interests (including payments received as compensation or otherwise related to those rights and interests);
(d)     to invest or otherwise apply the money held in trust as directed by the common law holders;
(e)     to consult with the common law holders in accordance with regulations 8, 8A and 8B;
(f)     to perform any other function relating to those rights and interests as directed by the common law holders.
…
General
(2)Without limiting subregulation (1) or (1A), in order to perform its functions, a registered native title body corporate may, on behalf of the common law holders or persons entitled to, or who claim to be entitled to, the compensation:
(a)     consult other persons or bodies; and
(b)     enter into agreements; and
(c)     exercise procedural rights; and
(d)     accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders or persons entitled to, or who claim to be entitled to, the compensation.
Note:An agent prescribed body corporate is also subject to regulations 8 to 10.
The phrase ‘in relation to’ in the prefatory words of regulation 7 and the phrase ‘in respect of’ in regulation 7(1)(a) should be given a wide construction. Together they include those administrative matters to which it is necessary that the prescribed body corporate attend in order to properly manage the rights and interests of common law holders and in order to put before the common law holders information material to those matters on which the prescribed body corporate is required to consult with them. Subparagraph (a) extends to this application made by ATLA because information about Rangelea’s financial administration of the Master Trust is reasonably necessary in order to meaningfully consult, in accordance with regulations 8 or 8A of the PBC Regulations, with ATLA members on how the proceeds from the Heathgate and Quasar NTMAs should be dealt with into the future.
Moreover, regulation 7(1)(a) authorises prescribed registered native title bodies corporate to act as the agent of common law holders without requiring consent or consultation unless otherwise required by the PBC Regulations. So much is made clear by the distinction between subparagraphs (a) and (b) of regulation 7(1) in that the latter is expressly limited by the requirement for express authorisation. Moreover subparagraph (e) subjects the functions of prescribed body corporates to the consultation mandated by regulations 8, 8A, and 8B but only in respect of the matters falling within each of those regulations.
Regulation 8 establishes a consultation process for the making of a native title decision by a prescribed body corporate. A native title decision is one in which the enjoyment of the native title by the common law holders is affected. Subparagraphs (a), (b), (c), and (d) of the definition of ‘native title decision’ include a decision to surrender native title rights, to enter into an Indigenous land use agreement, to allow a person who is not a common law holder to become a member of a prescribed body corporate, or to include one or more consultation processes in the constitution of a prescribed body corporate. Decisions which fall within subparagraphs (a) to (d) of the definition require consultation with members of the body corporate and carry an obligation to act with their consent. Subparagraph (e) is a catchall definition which encompasses any act which would otherwise affect the native title rights or interests of the common law holders.
Regulation 8A allows low level decisions to be made in accordance with such alternative consultation process as may have been prescribed by the constitution of the prescribed body corporate. Regulation 8B covers consultation and consent in relation to the making of compensation applications.
Mr Coulthard gave some evidence about the way in which ATLA conducted its affairs in practice. The total number of common law holders is about 3,000, which is substantially more than the membership of ATLA which is in the order of 900. To become a member of ATLA an eligible person must apply and agree to be bound by the rules. There is no requirement for a common law holder to be a member of ATLA. Mr Coulthard testified that he had access to the Master List compiled by Rangelea of common law holders whilst serving as Chief Executive of ATLA because it was on his computer. However, he claimed that he never made use of that list in his capacity as Chief Executive of ATLA to call a meeting of common law holders. He first explained that it was not necessary to do so because the Adnyamathanha people have a good knowledge of who they are because of their awareness of their genealogies. Secondly, he explained that meetings were traditionally called by placing notices in local communities and making announcements on radio and in social media. Later, Mr Coulthard testified:
A.Yeah, well what happens, I mean there's been instances where people have made an application to become members of ATLA or made applications to become a benefit for the compensation package, what happens is that they've got to go before the community, so that community meeting is called by ATLA. ATLA is the only one who does that. Rangelea hasn't really bothered and gone down that road unless - I mean, there's been when these applications are looked at by Rangelea they say if they need to come back to the community then it's - a lot of those directors that have been part of Rangelea has also been part of ATLA, so they'd raise that at the meeting to have people do a presentation before the community. ...
Q.I'm not really clear, maybe I will ask a couple of more questions. I think you told Mr O'Leary that in your time as Chief Executive ATLA did hold a meeting of its members.
A.Many, many.
Q.And at any of those meetings did you take a list of members to it.
A.Only for the -
Q.I'll ask you where the list came from in a minute, but at any of those meetings did you take on your computer or elsewhere a list of members with you.
A.Yeah, what we normally do is print up a list of members of ATLA, we print them up from a spreadsheet but that's -
Q.And why do you print them out, do you put them up somewhere at the meeting.
A.And have them checked off as people walk in the door.
Q.Perfect, that's good. So when you were Chief Executive what did you print that list from.
A.From the list that is on the register, which is with ORIC.
Q.Yes, and who would give ORIC, if anyone, the updates as more members were -
A.We do that when we add on people, yeah, ATLA. ATLA did that when ATLA added on people.
Q.When they had their own people.
A.Yeah, yeah, and also -
Q.Like when you say 'their own people' including you for example as Chief Executive.
A.Yeah.
Q.So where would you get the names to give to ORIC, where would you get those names from.
A.Well originally it came from - the original list was taken from the genealogy.
Q.I know where it came from the Federal Court case.
A.Hey?
Q.The Federal Court case.
A.Yes, yes. But to provide it to the Federal Court case it arrived - it came out of the genealogy.
Q.Yes, yes.
A.To be able to go into the court case, yes.
Q.All right, so we get a base case which was the genealogies and the acceptance by the community of those people as members of their community and we start with a base case of traditional owners.
A.Yes.
Q.But then that's added to from time to time.
A.Yeah.
Q.It's added to by the advisory committee for the purposes of distributions.
A.Yeah.
Q.But then you've now told me that ATLA would also get lists and do things, one, to publish lists when there was a meeting of ATLA and, two, to send stuff to ORIC. So where did ATLA, you, for example, when you were Chief Executive get those names from so you could publish a list at an ATLA meeting or update ORIC.
A.ATLA had a list of members that were part of the members that provided to ORIC and you can go on and you can go on to ORIC's website and get that membership list. There is also at the time in particular community meetings there's a lot - there's only 800 members of ATLA, ATLA members, whereas 3,000 people, almost 3,000 people are members of the common law holders. But what I'm saying there is Adnyamathanha people know each other. So we make, you know, get people to sign off and make sure of that because the common law holders meeting is different from membership, membership meetings. Common law holders is every Adnyamathanha person, every single Adnyamathanha person that can come into a common law holders meeting and participate. Now in ATLA's meetings ATLA - common law holders can't go to ATLA's meeting until - unless they are members, full members.
HIS HONOUR:      Mr O'Leary?
MR O'LEARY:      I think in fairness to the witness your Honour and the witness might have been at cross- purposes.
HIS HONOUR:      Yes, I think we are. I'll let others clear it up if it's necessary to.
MR O'LEARY:      I think it probably is out of fairness for the witness.
XXN
Q.There is a members list of ATLA, is that right.
A.Yes.
Q.And that's different from a common law holders list, is that right.
A.Yes, yes.
Q.The members list of ATLA is what's on the ORIC website.
A.Yes.
Q.It's not the common law holders list which is on the ORIC website is it.
A.No, it's not the common law holders list.
Q.So the question that we're trying to explore is whether ATLA ever used not a member list but a list of common law holders in order to call a meeting or to determine who could come to the meeting.
A.It didn't need to. It didn't need to have a list.
Q.My question isn't whether it needed to. My question is: did ATLA ever use a list of common law holders to either call a meeting or to determine who could be present and vote at a meeting.
A.What didn't ever come, didn't have a list.
The making of the 2021 Rule Book
In addition to regulation 7 of the PBC regulations, ATLA relies on the provisions of the ATLA Rule Book (2021) as authorising it to bring this application seeking access to information on the administration of the Master Trust. The validity of the making of ATLA Rule Book (2021) is challenged by Rangelea. It is appropriate, therefore, to first consider the immediately preceding rule book – the ATLA Rule Book (2017).
The ATLA Rule Book (2017) defines ‘native title holders’ as those living Aboriginal people who are the descendants of the specified apical ancestors and who identify as Adnyamathanha and are recognised as such by other native title holders under traditional laws and customs as having maintained an affiliation with and continuing to hold native title rights and interests in the determination area. ‘ATLA’ is defined as an Aboriginal and Torres Strait Islander corporation under the CATSI Act. Its objectives include acting as the registered native title body corporate in relation to any native title rights and interests awarded in favour of the Adnyamathanha people for the purposes of s 57(2) the NTA and to have functions to:
·act as an agent or representative of the common law holders; and
·manage the rights and interests of the common law holders.
The ATLA Rule Book (2017) requires ATLA to consult and obtain the consent of the common law holders in accordance with the PBC Regulations. In particular, it requires ATLA to ensure that its members and common law holders understand the purpose and nature of any proposal which may be made to surrender or otherwise affect their native title rights or interests.
The powers and duties conferred on ATLA by the ATLA Rule Book (2017) include to ‘do all such lawful things as may seem to the Directors, or the members in general meeting, necessary or convenient for carrying out the objectives of the Corporation, and to manage the affairs and functions of the Corporation’,[21] but the Rule Book does not expressly confer a power to bring legal proceedings.
[21] Rule 4.1.
Nonetheless I find that the ATLA Rule Book (2017), by necessary implication, conferred a power to bring legal proceedings because it is impossible to effectively manage the rights and interests of common law holders, and to manage the affairs of ATLA, unless there is a power to bring or defend legal proceedings. The only limit on the exercise of that power is the requirement to comply with regulation 8 of the PBC Regulations. In any event, for the reasons which follow, I find that the ATLA Rule Book (2017) was validly replaced by the ATLA Rule Book (2021) which expressly confers a power to bring and defend legal proceedings.
The ATLA Rule Book (2021) confers on ATLA the function of acting as the authorised agent or representative of the common law holders.[22]
[22] ATLA Rule Book 2021, cl 3.1(1).
Clause 3.1 confers on ATLA, in its capacity as a registered native title body corporate, in relation to the native title rights and interests of the Adnyamathanha people, those functions conferred by s 57(2) of the NTA. In respect of any other lands clause 3.2 confers on ATLA the objectives of uniting the Adnyamathanha people in attempts to have their native title rights and interests recognised, to initiate legal proceedings to protect, preserve and prevent interference with their social and cultural heritage and native title rights and interests, and to conduct research necessary for the assertion of those rights and interests. Clause 3.2 also confers on ATLA the function of entering into NTMAs and other agreements on behalf on the Adnyamathanha people or members of ATLA and to manage land of traditional cultural significance to the Adnyamathanha people.
Clause 3.3 charges ATLA with wider objectives including to provide relief from poverty, sickness and other misfortune among Aboriginal people especially the common law holders, to undertake statutory functions and to protect, preserve and advance the traditions, laws, languages, culture and customs of the Aboriginal people, especially the common law holders.
Clause 3.3(3) provides:
In carrying out its objects, the Corporation shall ensure no portion of its funds or property are paid or applied directly or indirectly by way of dividends, bonus or otherwise howsoever by way of profit to any Member, except for the payment in good faith of reasonable and proper remuneration to any Member, officer, servant, agent, consultant, contractor or employees of the Corporation for, or in return for, services actually rendered to the Corporation.
Clause 4.1 of the ATLA Rule Book (2021) confers powers to raise funds by way of public appeal, grants, bequests gifts or otherwise and a wide range of other management and contracting powers. In particular Clause 4.1(h) authorises ATLA to ‘take and defend any legal proceedings … including proceedings relating to native title, land or heritage issues and interests’. The expression ‘relating to’ must be given wide scope in the context of the conferral of an enabling power to bring legal proceedings to protect the interests of those persons for whom ATLA is a statutory agent. Legal proceedings seeking access to documents disclosing the management and disposition of funds derived from the native title rights and interests of ATLA’s members relate to those rights and interests.
Clause 4.2 provides that when acting in the capacity of the prescribed body corporate on behalf of the common law holders, the corporation must consult with, and obtain the consent of, the common law holders in accordance with the PBC Regulations before making a native title decision. Clause 4.2 requires ATLA to ensure that its members and common law holders understand the purpose and nature of any proposal which may be made to surrender native title rights and interests or for an agreement to any other act which will affect their native title rights or interests. For the reasons already given the decision to see the information about, and to commence legal proceedings to obtain access to trust account records on, the disposition of funds derived from native title rights and interests which have been assigned to a third party, do not fall within those classes of decisions for which the PBC Regulations prescribe consultation processes.
Clause 4.3 provides that ATLA’s members in general meeting may, by resolution, give directions regarding consultation with the ‘Council of Elders’ and/or with ‘Core Groups’, in which case ATLA must comply with those directions. It is difficult to see how a requirement to consult more generally can be implied in the absence of such a resolution.
Clause 5 of the ATLA Rule Book (2021) provides that a member must be at least 18 years of age, an Aboriginal person who identifies as an Adnyamathanha person, and a common law holder. ‘Common law holders’ is defined to mean, in accordance with s 56 of the NTA, ‘the persons included by the Federal Court as the native title holders in the approved determinations of native title in respect of Adnyamathanha Lands or any part of them.’ A person entitled to be a member is admitted as a member on his or her written application being accepted by the directors and entered on ATLA’s register of members.

Rangelea contends that the ATLA Rule Book (2021) was not properly made and that the ATLA Rule Book (2017) did not confer a power to bring legal proceedings like the present application to access information relating to the administration of the Master Trust. It is, therefore, necessary to set out the process by which the ATLA Rule Book (2021) was made.
On 9 April 2021 Mr Bero sent to officers of ORIC, Messrs Selwyn Button and Kevin Vu, an ATLA consolidated Rule Book. The email and its attachments detailed non‑compliance in certain respects between the ATLA Rule Book (2017) and the CATSI Act. Mr Bero reported that he had included changes in the proposed ATLA Rule Book (2021) which reflected what he considered to be ‘model provisions’ drawn from rule books of similar organisations.
Mr Vu replied on 15 April 2021 advising that ORIC had reviewed the proposed ATLA Rule Book (2021). He informed Mr Bero that he had made some tracked changes and certain other observations. He attached ORIC’s model rule book.
Mr Bero replied on 16 April 2021 with further amendments and comments. He referred to two outstanding issues and asked whether Mr Vu wanted a clean version of the document. Mr Vu responded several hours later with some comments on relatively minor matters and asked Mr Bero to make a clean version of the proposed Rule Book. He asked Mr Bero to include a cover letter which confirmed that the special administrator had exercised powers under s 499‑5(3)(a) of the CATSI Act to change ATLA’s Rule Book and to expressly request that the new Rule Book be registered.
On 16 April 2021 Mr Bero informed Mr Vu that he was drafting the letter requested and that it would be sent shortly. Mr Bero attached a clean version of the ATLA Rule Book (2021) to his email. At 7.07 pm on that day Mr Bero sent the letter as requested and again attached the ATLA Rule Book (2021). An officer of ORIC replied to Mr Bero’s correspondence on the same day and informed him that ATLA’s Rule Book (2021) had been registered as requested.
Rangelea complains that there is no evidence of any formal act of the former special administrator adopting the draft Rule Book. In particular, it contends that there was no compliance with clause 18 of the ATLA Rule Book (2017) which specified that a special resolution of the majority of not less than three-fourths of the members was required to change the Rule Book. However, Rangelea accepts that pursuant to s 499-5(1)(e)(iii) of the CATSI Act, a special administrator may perform any function that the corporation’s members could perform. It also acknowledges that subparagraph (3)(a) expressly confers a power to change the corporation’s constitution and that, by subparagraph (4), a special administrator need not comply with an obligation to pass a special resolution. Nonetheless, it makes the pedantic submission that the special administrators were required to ‘formally pass a resolution of the members of ATLA adopting the 2021 Rule Book’. I reject that submission.
The clean copy of the ATLA Rule Book (2021) attached to Mr Bero’s first email of 16 April 2021 was drawn by Mr Bero after considering the changes proposed by Mr Vu. In finalising the Rule Book in that way, Mr Bero adopted the ATLA Rule Book (2021). If there was any remaining doubt, Mr Bero’s letter of 16 April 2021 requesting that the Rule Book be changed in accordance with the attached clean copy of the proposed ATLA Rule Book (2021) also evidences its formal adoption by Messrs Bero and Mailman as the special administrators. Nothing further was required.
The Master Trust is a private discretionary trust
A trust may, by its different provisions, be partly private and partly charitable. To the extent that the combination of a private trust with charitable purposes might overwise invalidate the trust it may be saved by s 69A of the Trustee Act.
It is well settled that to be treated by the law as a charitable trust, a trust must fall within one or other of the four categories identified in Income TaxSpecial Purposes Commissioners v Pemsel:[23]
·trusts for the relief of poverty;
·trusts for the advancement of education;
·trusts for the advancement of religion; and/or
·trusts for other purposes beneficial to the community.
[23] [1891] AC 531 at 583.
Moreover, in advancing those charitable purposes, the trust must be ‘of a public nature’, that is, for ‘the benefit of the public’, or a section of it as distinct from having a ‘private’ purpose.
In Groote Eylandt Aboriginal Trust Incorporated v Deloitte Touche Tohmatsu (No 2) Hiley J explained the distinction between charitable and private trusts as follows:[24]
All charitable trusts are trusts for purposes not persons. This is a fundamental difference between charitable trusts and conventional private trusts. Whereas in the case of a conventional private trust, the persons entitled to benefit either have a fixed interest in the corpus of the trust or rights as discretionary objects of a discretionary trust, in the case of a charitable trust the persons who might benefit are no more than the potential objects of benefaction out of the trust. They are not beneficiaries in the sense in which that expression is used in the discourse of private trusts.
(Footnotes omitted)
[24] (2017) 169 NTR 1 at [101].
I respectfully adopt that distinction. Therefore, the question on this application is whether the common law holders named in the schedule to the Trust Deed have ‘rights as discretionary objects of [the Master Trust]’ to its due administration or whether they are ‘no more than the potential objects of benefaction out of [the Master Trust]’. The framing of the question in that way emphasises that the classification of the Master Trust as either a private discretionary trust or a charitable one significantly affects the rights and interests of the members of the Sub-Groups.
The extent to which the potential beneficiaries of distributions from a trust can be characterised as a section of the public may have an important bearing on the classification of a trust. That question received close consideration in the judgment of Hiley J:[25]
Nationality trusts
[157]Counsel for the third defendant submitted that this exception (conveniently described for present purposes as a nationality exception) arises in some cases because of the reference in Lowe J’s decision in Re Income Tax Acts (No. 1) to groups into which the community is divided by necessary organisation or by convention seems to countenance and accommodate a class of cases which have allowed charitable trusts to operate for the benefit of people with a particular nationality, provided the requisite charitable purpose is otherwise shown.
[158]For example, charitable bequests limited to persons connected with Ukraine were approved in Kostka v The Ukrainian Council of NSW Inc, as was a trust for the benefit of ex-servicemen who were Protestants of Scottish or British descent in Re Gillespie (dec’d). In other words the trusts were defined by nationality. In Kostka, at [38], Young AJ adopted the statement in the 9th edition of Tudor on Charities that “a trust to relieve the need of members of a particular ethnic group in a geographical area is charitable even if the number of members of that group is small”.
(Footnotes omitted)
[25] (2017) 169 NTR 1 at [157]-[158].
Hiley J accepted that a trust which limited the potential beneficiaries to Aboriginal people generally, or to a particular Aboriginal clan, fell within that exception.
Hiley J referred to the decision of Nader J in Aboriginal Hostels Ltd v Darwin City Council[26] in which Nader J held that a property which, by a deed of trust, was dedicated to the provision of places of rest for Aboriginal persons was used for a charitable purpose. Hiley J also referred to the decision of the Full Court of Western Australia in Shire of Derby-West Kimberly v Yungngora Association Inc.[27] The question in that case was whether a pastoral lease, on which a corporation controlled by the Yungngora Association operated a pastoral business, was used for a charitable purpose. Newnes AJA, who gave the reasons of the Court, explained:
[48] The condition that to be charitable a purpose must tend to benefit the public is satisfied if the purpose tends to the benefit of the public at large, or a class or section of the public: Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315 at 321 per Dixon CJ, with whom Fullagar and Kitto JJ agreed.
[49] It is difficult, and probably impossible, to formulate a satisfactory test by which to determine whether in any particular case a particular class of persons constitutes a section of the public in order to establish that the purpose is charitable. The fact that only a limited number of people can benefit does not mean that the purpose is not a public one. A purpose does not lose its public character simply because it is limited “by reference to locality, to conditions of people, to their disabilities, defects or misfortunes and by reference to many other attributes of men and thing”: Thompson v Federal Commissioner of Taxation, 321.
[50] But a purpose will not be a public one if it is merely for the benefit of particular private individuals; it must be for the benefit of the community or an appreciably important class of the community: Williams' Trustees v Inland Revenue Commissioners [1947] AC 447 at 457 per Lord Simonds. So while the inhabitants of a parish or town, or any particular class of such inhabitants, may be the objects of such a gift, private individuals, or a fluctuating body of private individuals, as such, cannot: Verge v Somerville [1924] AC 496. Thus, if the beneficiaries are defined as descendants of a named person or as employees of a named company, the purpose will not be regarded as one for the benefit of a section of the community: see Re Compton; [1945] Ch 123, Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297, cf Dingle v Turner.
…
[52] The fact that some individuals who do not fall within the class sought to be benefited may succeed in taking advantage of the benefits intended for that class, does not detract from the charitable nature of purposes which are otherwise charitable: Pemsel at 583, Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully at 174.
[53] It must also be recognised that what constitutes a charitable purpose may change as new social needs arise or old ones cease to exist: see Scottish Burial Reform and Cremation Society v Glasgow City Corporation [1968] AC 138 at 154 per Lord Wilberforce.
[54] In the present case, while it argued that the land was not used exclusively for a charitable purpose, I did not understand the Shire to contest that if land is used for the purpose of improving the economic position, social condition and traditional ties of an Aboriginal community, that will generally be a charitable use of the land. I think that that is clearly the case. There is a significant body of authority which supports that view.
[55] Thus, for instance, in Dareton Local Aboriginal Land Council v Wentworth Council (1995) 89 LGERA 120 at 125-126, Bignold J held that the provision by the applicant of housing assistance to local Aborigines could be regarded as involving the relief of poverty and other functions of the applicant “could be accommodated under the fourth head in Pemsel, especially given the widespread recognition in the common law of Australia of the plight of Aborigines in the Australian community in terms of their socio-economic status, opportunities for advancement, and the legacy of dispossession that was the inevitable result of British settlement in this country” (125). …
[26] (1985) 75 FLR 197.
[27] (2007) 157 LGERA 238 (Buss and Miller JJA, Newnes AJA).
Having accepted that the members of the Yungngora Association may constitute a section of the public, the Court nonetheless held that the pastoral lease was not used for a charitable purpose.
Whether or not the Master Trust is a charitable trust turns on an identification of the purposes for which the powers of distribution in the Trust Deed may be exercised.
The Recital to the Trust Deed records that the Adnyamathanha people have joined together to make the Native Title Claim in Federal Court proceedings SG6001/98 and declares that the trust has been created for the purposes of benefiting the ‘Traditional Owners’ in the manner set out in its provisions. The declaration of trust itself declares that the trustee stands possessed of the trust fund ‘for the benefit of the Traditional Owners’ rather than for the advancement of a charitable purpose.
Clause 3 provides that the trust is established ‘for the objects of benefiting the Traditional Owners … and their descendants’. I accept that the traditional owners of the Adnyamathanha lands are a sufficiently large group of people to be a constituent element of Australia’s multicultural society and may, therefore, be the object of benefaction of a charitable trust.
Importantly, clause 3.2 directs the trustees ‘to the extent practical’ to distribute the ‘Distributable Funds’ in the Trust Fund periodically amongst the Sub‑Groups established by the Trust Deed (as contemplated by the Deed) in order for those funds to be managed or distributed by those Sub-Groups. Clause 3.2 does not require or limit the distributions from the Master Trust to a single payment to a representative of each Sub‑Group or their ‘Eligible Entities’.
‘Distributable Funds’ is defined by clause 30 of the Trust Deed to mean ‘the funds from time to time held by the Trustee and available for distribution to the Sub-Groups’. ‘Trust Fund’, in turn, is defined to include, inter alia, monies paid under NTMAs. The connection made in the Recital between the Native Title Claim and benefiting Adnyamathanha people, and the direction to maximise distributions, suggests that the primary purpose of the Master Trust is to distribute monies derived from the Native Title Claim to common law holders.
I observe that those terms reflect Mr Coulthard’s evidence that it was the consensus of the Adnyamathanha people reached in meeting on the issue that those of them who had most directly suffered from colonial dispossession enjoy some priority in the distribution of funds derived from their native title rights in order to compensate them for that loss. Mr Coulthard testified that there had been some dispute between different members of the Adnyamathanha community in the Native Title Claim as to how the payments made by Heathgate should be distributed. A resolution of their differences was reached at two meetings of the Adnyamathanha people, one held in Copley on 21 July 2003 and one held in Port Augusta on 22 July 2003. It was agreed that the payments would be made to a trust with a corporate trustee. The payments would be divided between the various sub‑groups listed in a trust deed and all Adnyamathanha native title holders could choose which sub‑group to belong to. The royalty payments would be divided between sub‑groups in proportion to the number of members of the sub‑groups.
Mr Coulthard deposed that there was a strong sentiment amongst the Adnyamathanha people that the royalties, or as much of the royalties as possible, should be distributed to Adnyamathanha people and/or native title holders as soon after the monies were received as was reasonably practicable. There was a view that it should not be invested for future generations. The consensus was that those living Adnyamathanha people who had suffered the greatest loss from the loss of connection to the land should receive the benefits.
Guiding principle 5.1(5) of the Trust Deed reflects that consensus. It provides that the general intent is that all income comprising Distributable Funds received by the Master Trust will be distributed between the Sub-Groups on a regular basis and as soon as practicable after receipt of any significant payments. It will be noted in this respect that the evidence shows that payments made to Traditional Owners were generally made twice a year and that the NTMAs made by ATLA require the mining companies to make semi-annual payments of royalties to the Master Trust.
The concept of compensation, premised as it is on a moral or legal entitlement, stands in contrast to a gift given as an act of charity.
Importantly, the terms of the Trust Deed do not limit the distributions which Rangelea might make to those which advance a charitable purpose. It is not to the point that some of the distributions might, in part, as I suspect they often did, relieve poverty or advance education, because they could equally have done no more that augment the private wealth of the recipient.
Clause 4.3 of the Trust Deed directs the trustee, in performing its functions, to have due and proper regard to the aims and aspirations of the Traditional Owners and, in particular, their desire to ‘work towards self-determination (being the control, protection, and development of their own culture and lives)’. It also directs the trustee to have regard to the Traditional Owners’ desire to work towards self-management ‘within their own respective Sub-Groups’. Those instructions, too, reflect the notion of distributing trust monies in a way which returns to the Adnyamathanha people a level of independence and autonomy which was lost to colonial control. However, they lack any reference to the traditional charitable purposes; they are instead replete with references to material advancement, albeit within a collective, or the collectives, of the Adnyamathanha people.
Clause 4.4 empowers the trustee to convene a committee to be known as the ‘Advisory Committee’, comprising a representative of each Sub-Group, to receive recommendations from the Sub‑Groups in relation to matters relating to administration of the Master Trust.
Clause 4.5 provides that the trustee may, if directed by all the members of the Advisory Committee, distribute part of the trust fund to another trust described as the ‘Master Charitable Trust (being a charitable trust established for the benefit of the Community as a whole)’. ‘Community’ is defined to mean the Adnyamathanha People which in turn has the same meaning as Traditional Owners. This provision may be considered to be for a charitable purpose. To that extent the Master Trust may, therefore, be partly charitable and partly private. However the issue in these proceedings concerns the nature of the Master Trust insofar as it provides for the distributions to the Sub-Groups and their members.
In practice the requirement for unanimity before a distribution can be made to the Master Charitable Trust creates a significant impediment to any such distribution and serves to emphasise that the Master Trust’s primary purpose is the distribution of funds to the Adnyamathanha people to expend on their personal advancement as they see fit.
It is clause 7 of the Trust Deed which divides the Traditional Owners into the Sub-Groups. It provides that the trustees may, from time-to-time, recognise and create additional Sub-Groups. Clause 10 requires the trustee to maintain a ‘Traditional Owners Register’.
The Sub‑Groups and their membership as at the execution of the Trust Deed in July 2003 are as follows:
1.the Angelina Stuarts group with 109 members;
2.the Stewart and Beverley Patterson group with 191 members;
3.the Geraldine Anderson group with 103 members;
4.the Gordon Coulthard group with 74 members;
5.May’s group with 103 members;
6.the Vince Coulthard (ATLA) group with 427 members;
7.Aunty Gertie’s group with 76 members; and
8.the Kuyani group with 292 members.
Clause 7.3 charges the trustee with responsibility to determine how Distributable Funds are to be shared between the Sub‑Groups and directs it ‘to allocate the Distributable Funds in accordance with Guiding Principle 5.1(4)’. Clause 5.1(4) requires the trustee in that allocation to ‘generally’ treat the Traditional Owners ‘equally’ in the sense that each Sub‑Group will participate in benefits in proportion to the size which its membership bears to the total number of Traditional Owners in all Sub‑Groups. In order to do so, the trustee is to determine the ‘Allocated Share’ of each Sub‑Group in proportion to the Traditional Owners affiliated with that Sub‑Group. Clause 30 defines the Allocated Share to be the share of the Distributed Funds to be enjoyed by each Sub-Group. However, clause 5.1(4) does not mandate equality of distribution to each member of a Sub‑Group or as between all of the persons named in the schedule.

The use of the word ‘allocate’, in clause 7.3, instead of ‘distribute’, is problematic. In context it is properly understood to mean a hypothecation of the Distributable Funds for each Sub-Group as a preliminary step to the distribution of those funds to beneficiaries in accordance with the provisions of the Trust Deed.
Before proceeding further with a discussion of clause 7, it is necessary to set out some defined terms. Clause 30 defines an ‘Eligible Trust’ to be a trust or settlement established for the benefit of Traditional Owners generally or of a particular Sub-Group and an ‘Eligible Corporation’ to be a corporation all of the shares of which are beneficially held by the Traditional Owner members of a Sub‑Group. An ‘Eligible Entity’ is an Eligible Corporation or Eligible Trust which has been nominated by a Sub-Group to receive any part of its Allocated Share. Clause 11 authorises the trustee to assist a Sub-Group to constitute a Representative Corporation to represent the Sub-Group, provide advice to the trustee and mediate between members of the Sub-Group. Clauses 5.3 and 11.2(4) assimilate a Representative Corporation with those Eligible Entities which may receive a payment of part of the Allocated Share of a Sub-Group. The provision for payments to be made by Rangelea to an Eligible Entity, which need not have a charitable purpose, and which need not account to Rangelea for the further distribution of the funds, is fundamentally inconsistent with Rangelea’s contention that the Master Trust is a charitable trust.
Clause 7.4 provides that once the Allocated Share has been determined by the trustee each Sub-Group will direct, through its representative on the Advisory Committee, how it wants the trustee to apply its share. Clause 7.5, by way of elaboration, provides that each Sub-Group may direct the trustee to pay its Allocated Share as it determines including to an Eligible Entity or Eligible Trust, or to designated members or any ‘mixture of the above’. It follows from the processes established by clauses 7.4 and 7.5, by which a ‘Sub‑Group’s representative on the Advisory Group ‘directs the Trustee to apply’, and Sub‑Groups direct the trustee to ‘pay’ any part of the Allocated Share, that it is the application of the Allocated Share in that way which is the distribution from the Master Trust.
Mr Coulthard gave evidence about the way Rangelea operates in practice and deposed that each director of Rangelea ‘represents a sub‑group of the Adnyamathanha people’. He described the rationale for selecting directors in that way is to give each Sub-Group a say in the administration of the Master Trust. He explained that Rangelea had retained Wakefield Chartered Accountants (Wakefields) for administration and accounting services for many years. He deposed that the Advisory Committee, which is constituted under the Master Trust by one representative from each Sub‑Group, meets immediately prior to the meeting of directors. The meeting normally takes place about twice a year but was interrupted by COVID.
Rangelea maintains a ‘Master List’. Membership is limited to persons recognised as a ‘Common Law Holder’ at the commencement of the Master Trust, or a descendent of such a person. They must also identify as Adnyamathanha, be recognised as such by the Adnyamathanha people in accordance with traditional laws and custom and have maintained an affiliation with the traditional land and culture.
The Advisory Committee provides a recommendation to the directors as to whether a person who has applied for inclusion as a member should be added. Mr Coulthard testified that each Sub-Group provides two members to the Advisory Committee, one of whom is a director of Rangelea. Mr Coulthard is one of the two representatives for his Sub-Group. Persons who have passed away or who are discovered not to be qualified are removed by directors on the advice of the Advisory Committee. It has been Rangelea’s policy to make one final payment to a person on the Master List who has passed away, which payment is paid to his or her family. Mr Coulthard testified that he had been engaged, and paid, by Rangelea to update the members’ register known by him as the Master List. The Master List is maintained digitally on an excel spreadsheet on a dedicated computer in his custody.
Electronic lists of members are provided to Sub-Group representatives on USBs.
Persons must choose a Sub‑Group and can only appear on the Master List once. However, they are free to transfer from one group to another.
Mr Coulthard gave evidence of the actual practice of Rangelea in making distributions. He testified that Rangelea’s accountants, Wakefields, attend meetings of its board with a budget and proposed budgets as to Rangelea’s operating costs in order to advise the board of the funds which are available for distribution. That amount is divided by the number of beneficiaries in the Sub‑Groups and the Allocated Share for each Sub-Group is then determined. Rangelea’s directors then instruct Wakefields to transfer the respective amounts into the accounts of the Sub-Groups.
Mr Coulthard explained:
Q.Yes, as of July 2017, there were about 2,600 members.
A.Individuals, yep, yep.
Q.People who might get some money.
A.Yes.
Q.How did those people get the money. Would Rangelea pay the amount that the subgroup told Rangelea to pay -
A.Yep.
Q.- to each of those 2,600 or something less than that, or would it pay a lump of money to, say, a head of the subgroup whose job it was to then share it between individual members of his or her subgroup.
A.Yeah. Yeah, well, the way it has been designed to happen, and it's been happening like this since day one, if we go back to look at these minutes here, 17447, 1747, there is a list of names. They're the list of subgroups and the numbers are listed down on the right-hand side. There's a total in 2017, I think it's 2017.
Q.Yes, July.
A.There was 2,631 people. Now, what would happen, those numbers there would have been given to Rangelea after the advisory meeting. We would have the advisory meeting and the agreed number that came out of the advisory meeting, we'd provide that to Rangelea and -
Q.And the names, in fact.
A.Yeah, and the list, that list that I've talked about that's - yeah. Then the accountant will calculate the distribution and Angelina would receive 157 units.
Q.Yes, so 157 times 120 if that's the payment.
A.Yeah, yeah, yeah, and Anderson would receive 95. It's done on a per capita basis.
Q.95 units.
A.Yeah, per capita.
Q.And a unit, you mean what the per capita is supposed to be.
A.Yeah, yes, yes, and then Rangelea accountants will go - those numbers are put forward, the board accepts it and then the Rangelea accountants will then go and pay those units to those subgroups, and those subgroups -
Q.Yes, now, here's the thing that I find difficult to follow. Once a payment of, say, for Angelina of 157 times the unit is paid by the trust -
A.Mm-hmm.
Q.- on the face of it, it looks like a distribution to a person entitled to distribution, namely, Angelina, of 157 times 120, and the trust job's done.
A.Done, yeah.
Q.And that's how you saw it.
A.That's it, that's it, yep, the trust is -
Q.Yes, and so what was then to - then it was up to the honour, was it, of the person who got all that money -
A.Mm-hmm.
Q.- to share it as was intended -
A.Yep.
Q.- per person.
A.Yes.
Q.Is that how it works.
A.Yes.
I understand Mr Coulthard’s evidence to be that, in practice, a single payment of the Allocated Share is made by Rangelea to a member of a Sub‑Group, or to an Eligible Entity, who may then distribute some part of the amount to other members. The nature of the trust or equitable obligations assumed by the recipient in that context, if any, is problematic and was not explored by evidence or submissions in these proceedings.
To some extent the difficulty as to the nature of the payment may be resolved by the Trust Deed itself in respect of a payment to a Representative Corporation. Clause 5.3 confers a discretion on the trustee to pay all or part of the benefits to which a Sub-Group is entitled to a Representative Corporation of a Sub‑Group ‘in its own capacity’ or as ‘a trustee’ for administration and distribution on behalf of the Sub-Group. Presumably, Rangelea may stipulate on the making of a distribution whether it is made to the Representative Corporation in its own capacity or as trustee for the Sub-Group members.
I make three observations about the payment of the Allocated Share pursuant to the provisions of the Trust Deed. First, the payment to an Eligible Entity, in its own right, as agent for the members of the Sub-Group, or as a trustee for them, must be a distribution of trust funds by Rangelea just as a payment to a named member of a Sub‑Group would be. Indeed clause 15, which confers specific powers on the trustee, provides by clause 15.1(38) that the trustee has the power to distribute in any year all or part of the monies from time-to-time forming the Trust Fund to the trustee from time to time of any trusts established for the benefit of the Sub-Groups or any part thereof, as though the Sub‑Groups were themselves a Traditional Owner and therefore a beneficiary under the deed. That language also suggests that the Master Trust is a private trust with beneficiaries, who are more than mere objects of benefaction.
Secondly, presumably the discretion conferred by clause 5.3 is only exercisable when a direction pursuant to clause 7.4 or clause 7.5 has not been given.
Thirdly, it is difficult to see how the Master Trust can be classified as a Master Trust when its provisions authorise distributions to an Eligible Entity which need not be a trustee of a charitable trust.
Clause 28 provides that the trust created by the deed is ‘discretionary in nature and except to the extent that the Trustee may otherwise specifically determine and declare in writing in accordance with this Deed, no Traditional Owner has a vested interest in any portion of the Trust Fund and no Traditional Owner is entitled to call for the Trust Fund or any part thereof’. The conferral on the trustee of a power to vest an interest in the Trust Fund on any one of more members of a group is difficult to reconcile with a classification of the Master Trust as a charitable trust.
No provision of the Trust Deed describes the trust as a charitable trust or identifies any particular charitable purpose. No clause of the Trust Deed requires the trustee to have regard to the needs which the members of the Sub-Group may have for a relief from poverty, to be educated, or to engage in spiritual or cultural observances.
Indeed, the Board of Rangelea did not appear to consider at least some members of the Sub‑Group as mere objects of benefaction. For example on 15 July 2017, it was resolved by majority against ‘strong protest’ to stop royalty payments to one member, and ‘remove’ another from the Adnyamathanha members list for posting culturally offensive material on social media and disrespecting elders, respectively. It was also resolved that letters be written to both members informing them that they would be re-instated if they publicly apologised.
I have identified in my summary of the clauses of the Trust Deed those terms which are indicative of a private discretionary trust, the absence of any express reference to charitable purpose except insofar as a payment may by made into the Master Charitable Trust, and the absence of any guiding principle in clause 5 which directs the attention of the trustee to consider a charitable purpose which may be served by a distribution to a particular member of a Sub-Group or the Sub-Group as a whole. Indeed, there is no provision which limits the power of Rangelea to make distributions to the members of Sub‑Groups or to their Eligible Entities for non‑charitable purposes.
Those features unequivocally support the conclusion that the Master Trust is a private discretionary trust and I so find. If there were any ambiguity, it is necessarily dispelled by the undisputed context in which the Master Trust was constituted. The Trust Deed itself recognises the Trust Fund is comprised largely of monies received under NTMAs and it is common ground that the Master Trust was established to distribute amongst the Traditional Owners income derived from the exploitation of their property rights.
There are several consequences of my finding which should be noted. First, as beneficiaries of a private trust, each of the named group members are entitled to the due administration of the Master Trust by Rangelea. The due administration of the Master Trust includes:
·making distributions to the Sub-Groups in proportion to their membership;
·making distributions as soon as practicable after receipt of significant payments; and
·having regard to the aspirations of Traditional Owners for self‑determination when making decisions.
If the group members were only objects of benefaction they could not seek the assistance of this Court to ensure that Rangelea administered the Master Trust in that way.
Secondly, it is likely that Rangelea has administered the Master Trust on the premise that it is a charitable trust. Rangelea’s solicitor, Townsends, asserted as much in denying the personal applicants’ requests for access to trust records. I set out the circumstances of the denial of those requests in paragraphs[156], [165] and [169] below. That is also the position it has put in these proceedings. In the absence of any clear evidence that Rangelea has been duplicitous in denying access on the basis that the Master Trust is a charitable trust I find that it has administered the Trust, including the treatment of taxation matters, on the basis that it is a charitable trust.
Thirdly, and as a necessary consequence of my last finding, there may be adverse consequences for Rangelea and the members of the Sub‑Groups and any of their Eligible Entities who have received monies from Rangelea because of the mistaken premise on which the Master Trust has been administered.
Fourthly, the distribution of the Allocated Share of each Sub‑Group by a single payment for a member of a Sub‑Group or an Eligible Entity means that there is no transparency as to any further distribution. In exercising such discretions as Rangelea may have as to the entity to which the payment is made, or in determining whether to seek the assistance of the Court in the administration of the Master Trust, Rangelea was bound by the fiduciary duty it owed all members of the Sub‑Groups to seek and maintain records of the way in which the recipient of the payment for the Sub‑Group dealt with the funds. Rangelea’s refusal to provide any information as to its management of the Master Trust deprives members of the Sub‑Groups of information they would require to determine whether to bring an action against the member of the Sub-Group or an Eligible Entity who received trust funds from Rangelea.
Finally, the erroneous treatment of the Master Trust may affect the after tax value of the payments made under the NTMAs. That is a matter in which the personal applicants and ATLA, as their agent, in reviewing the benefits to the Traditional Owners of the arrangements with the Master Trust have an interest.
All of the above considerations provide strong reason to exercise such discretions as there may be in favour of making the trust accounts of the Master Trust available to the Adnyamathanha applicants and ATLA and for the appointment of an inspector pursuant to s 84C of the Trustee Act.
The Trustee Act
There is no claim made on this application that Rangelea should be removed as trustee. However, it assists in understanding the other provisions of the Trustee Act which hold trustees accountable for their administration of trusts, to have in mind the scope of the power of this Court to remove a trustee.
Section 36 of the Trustee Act relevantly provides:
36—Power of the Court to appoint new trustee
(1) The Supreme Court may, on the application of a person referred to in subsection (1c), make—
(a)     an order removing one or more of the trustees of a trust; or
(b)     an order replacing one or more of the trustees of a trust; or
(c)     an order appointing a trustee or trustees, or an additional trustee or trustees, of a trust; or
(d)     any other order that in its opinion is necessary or desirable.
(1a) The Court may make the order if it is satisfied that the order is desirable—
(a)     in the interests of the persons (whether identified or not) who are to benefit from the trust; or
(b)     to advance the purposes of the trust.
(1b) There is no need for the Court to find any fault or inadequacy on the part of the existing trustees before making an order under this section.
(1c) The following persons may apply for an order under this section:
(a)     the Attorney-General; or
(b)     a trustee of the trust; or
(c)     a beneficiary of the trust; or
(d)     in the case of a trust established wholly or partly for charitable purposes the following persons may apply for an order in addition to those referred to in the other paragraphs of this subsection:
(i) a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or
(ii) a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or
(iii) a person who in the past has received money or other property from the trustees for the purposes of the trust; or
(iv)    a person of a class that the trust is intended to benefit; or
(e)     any other person who satisfies the Court that he or she has a proper interest in the trust.
…
It should first be noted that it is sufficient that removal is desirable in the interest of the persons who are to benefit from the trust, or to advance its purposes; it is not necessary to show fault or inadequacy on the part of the existing trustee. Secondly, a beneficiary of a private trust, a person who has received a distribution from a charitable trust, a person of a class that the trust is intended to benefit, or a person who otherwise has a proper interest in the trust has standing to seek an order of removal. The power is therefore a wide one which is calculated to advance the purposes of the trust itself rather than protect the interests or expectations of individuals.
The claims made by ATLA and the Adnyamathanha applicants invoke the following provisions of the Trustee Act.
Section 60 of the Trustee Act is the first section of Part 4 of the Trustee Act which Part deals with charitable trusts. Section 60 (1) of the Trustee Act empowers the Court to make orders for the administration or to the advantage or benefit of a charitable trust in the case of a breach or supposed breach of trust on an application brought by a person falling within s 60 (2) of the Trustee Act:
60—Applications to Supreme Court
(1)In every case of breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of the Supreme Court shall be deemed necessary for the administration or management or to the advantage or benefit of any trust created for charitable purposes, it shall be lawful for a person referred to in subsection (2) to apply to the Supreme Court, stating such breach or supposed breach, or the grounds upon which such direction or order is necessary, as the case may be, and seeking such relief as the nature of the case may require.
(2)An application may be made by any of the following persons:
(a)     the Attorney-General; or
(b)     a trustee of the trust; or
(c)     a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or
(d)     a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or
(e)     a person who has in the past received money or other property from the trustees for the purposes of the trust; or
(f)     a person of a class that the trust is intended to benefit; or
(g)     any other person who satisfies the Court that he or she has a proper interest in the trust.

A consideration of the motives of the Registrar and the special administrators he appointed must commence with the history of dissension within ATLA. There was dissatisfaction with the management of ATLA before the appointment of special administrators. A meeting of ATLA to discuss the issues was scheduled for 23 February 2019. On 18 February 2019 ORIC granted ATLA an exemption from the time requirement for the AGM permitting ATLA to hold it on 30 November 2019. A number of Adnyamathanha people complained to ORIC about the extension. They circulated a petition which declared a lack of confidence in the current directors and complained of the cancellation of three previous annual general meetings. The petitioners proposed a resolution that the directors be removed and that elections for new directors be held. In October 2019 a complaint about the lack of transparency in the conduct of both ATLA’s and Rangelea’s affairs was emailed to ORIC.
Mr Coulthard was chair of ATLA when it was first incorporated and continued to hold that office until 2015 when he decided to stand down as chair but he continued as a director. He later accepted the position of part‑time Chief Executive Officer. His position as Chief Executive was made redundant by the then directors of ATLA on 8 July 2019. The reason given for his redundancy and that of another staff member was lack of funds.
From 8 July 2019 until 23 November 2019 Mr Coulthard had no formal position in ATLA but was elected as chair again on 23 November 2019, a position he held until ORIC appointed Messrs Bero and Mailman in 2020. Mr Coulthard claims that when he resumed as chair he became aware of anomalies in the management of ATLA’s financial affairs in the period 8 July 2019 to 23 November 2019.
Mr Coulthard’s evidence was that ATLA was poorly run, and proper financial records were not kept in the period after his redundancy. Mr Coulthard deposed that in the four month period between the time he was made redundant as Chief Executive Officer and his re‑election as chairperson, some $60,000 was paid to ATLA’s chairperson and vice‑chairperson and legal fees in the sum of $70,000 incurred. He was distressed by the financial position in which he found ATLA. Acting on the advice he had received he referred matters to SAPOL for investigation and advised ORIC of his suspected breaches of the Act.
In other respects Mr Coulthard deposed that ATLA had paid its debts as they fell due and had money in the bank at the time that ORIC appointed special administrators. Mr Coulthard also deposed that apart from the mismanagement for a short period after his redundancy ATLA was financially responsible and well governed. Nonetheless there is some tension between Mr Coulthard’s decision to report mismanagement to police and ORIC and the position Rangelea now puts that the special administration was initiated and continued for an improper purpose.
Messrs Mailman and Bero were first appointed as special administrators of ATLA by ORIC on 25 March 2020 for the period 26 March 2020 until 30 June 2020. They provided a special administration preliminary report on 6 April 2020 and an ATLA solvency report dated 13 May 2020 which concluded that ATLA was solvent. On 30 June 2020 the special administration was extended to 25 September 2020 and on that date it was again extended to 18 December 2020 and extended again on that date to 16 April 2021.
On 15 April 2021 Messrs Bero and Mailman wrote to ORIC requesting an extension of the special administration until 30 June 2021 for the following reasons:
1.The proposed members of the new ATLA Board had requested a four‑week handover period beginning on 19 April 2021 and that it would be necessary to fill Board positions on the proposed new trustee ATLA 1 Pty Ltd.
2.The special administrators still held Board positions on related companies: Cramond Pty Ltd, ATLA 1 Pty Ltd, Ikara Wilpena Enterprises Pty Ltd, and Wilpena Pound Aerodrome Services Pty Ltd.
3.Making changes to signatories on bank accounts.
4.Continuing concern that ATLA was trading insolvent and the need to negotiate arrangements for the payments of some royalties to ATLA to fund its operation.
5.The need for further investigation of unauthorised or inequitable funds.
6.The ACNC wished to investigate the operations of ATLA.
7.The prospect that the special administrators would be invited to give evidence before a South Australian Parliamentary Inquiry into the corporate governance of Aboriginal corporations in South Australia.
8.The desirability of reporting back to the community on the special administration.
9.The need to complete the appointment of a new trustee to the Adnyamathanha Master Trust.
10.The need for more time to handover on operational matters.
The requested extension was not granted and Messrs Bero and Mailman provided their final handover report on 23 April 2021 in which they reported:
·ATLA had approximately 850 members and approximately 30 agreements with mining companies, including for the conduct of heritage survey work;
·they had established a special administration advisory group;
·they terminated the professional services with Johnston Withers Lawyers and engaged MPS Law in their stead and engaged Moore Australia as bookkeepers and accountants;
·they had removed the directors who had sat on ATLA’s investment and trustee companies and made new board appointments on Ikara Wilpena Enterprises Pty Ltd and Wilpena Pound Aerodrome Services Pty Ltd;
·many provisions of the Trust Deed were calculated to minimise outside scrutiny and limit duties of care, diligence, skill and prudence;
·they had discussed with Heathgate a proposal to have payments made to a newly incorporated trustee company known as ATLA 1 Pty Ltd in order to ‘inject greater transparency and ensure that consistent practices are exercised in relation to the management and use of such funds’.
Messrs Mailman and Bero reported that they had circulated a draft resolution to be put to ATLA members at a meeting to be held on 20 April 2021 proposing the removal of Rangelea as trustee of the Master Trust. They then listed the following as outstanding issues:
·completion of the operational handover to new directors over a four‑week period;
·transition from a number of board positions still held by them as special administrators on ATLA 1 Pty Ltd, Ikara Wilpena Enterprises Pty Ltd and Wilpena Pound Aerodrome Services Pty Ltd;
·reporting back to the community regarding findings on the inappropriate use of funds within ATLA and the ATLA Trust;
·complete the restructuring of the Adnyamathanha Master Trust; and
·settle the amended Native Title Mining Agreements with Heathgate Resources.
Mr McQuoid is a certified practising accountant and a member of the Australian Institute of Company Directors. He has worked with ORIC for 18 years supervising special administrations, examinations, and other functions for CATSI corporations.
On Friday 16 April 2021 an officer of ORIC, Mr Vu, asked Mr McQuoid whether he would accept an appointment as ATLA’s special administrator for what was expected to be just a matter of days to conclude the administration which had been commenced with the appointment of Messrs Bero and Mailman. In particular, his task would be to procure consents from persons who were to become the new directors of ATLA on the termination of the administration. Mr McQuoid consented and was appointed on that day.
The delegate of the Registrar appointed Mr McQuoid special administrator for the period from 12.00 am on 17 April 2021 to 11.59 pm on 20 April 2021. On that appointment Mr McQuoid became ATLA’s sole director. The appointment was later extended to 30 June 2021 and extended again to 31 December 2021.
On Mr McQuoid’s appointment he was provided with a copy of a report on ATLA dated 8 December 2019 prepared pursuant to s 453-1 of the CATSI Act. The report identified a number of concerns regarding the management of ATLA including a failure to maintain proper records and the misuse of funds. Mr McQuoid was also provided with the statement of reasons for the delegate of the Registrar’s decision dated 6 May 2020 to place ATLA under special administration.
Prior to his appointment Mr McQuoid had not seen any reports concerning ATLA but his advice had been sought on the ATLA Rule Book proposed by Messrs Bero and Mailman.
On Mr McQuoid’s appointment Mr Vu sent him by email a copy of the ATLA Rule Book (2021) and the names of the proposed directors. He suggested that Mr McQuoid make arrangements to attend meetings in South Australia on 20 April 2021 with the proposed directors. On 19 April 2021 Mr Vu wrote a letter to persons who may have had an interest in attending the meeting on 20 April 2021. The letter included the names of persons who the special administrator had indicated may be suitable and willing to act as directors of ATLA from amongst its members and the names of two independent directors. It also gave names of persons who might act as directors of ATLA 1 Pty Ltd. It provided Mr McQuoid’s phone number. It informed the addressees that the purposes of the meeting were to:
·discuss with the proposed directors next steps following the end of the special administration of ATLA and the support services which ORIC may provide for the new Board;
·discuss and confirm the appointment of directors to ATLA and ATLA 1 Pty Ltd;
·discuss the delegation of signatories to bank accounts; and
·discuss the progress of the forensic audit and next steps.
Mr McQuoid urgently made arrangements to attend meetings to be held on 20 April 2021 in Port Augusta and Adelaide in order to obtain consents to act as director from the persons identified by Messrs Mailman and Bero. The meetings were held. Mr Vu and, the Registrar Mr Button, dialled into the meetings. It became apparent to Mr McQuoid that the administration could not be concluded within that time because the proposed directors were concerned about the ‘lack of transparency’ in respect of the payment of monies by Heathgate and Quasar to Rangelea. They were also anxious to have an assurance that funds would be available for the proper administration of ATLA.
Mr McQuoid decided that pursuing the resolution which had been circulated by Messrs Mailman and Bero to remove Rangelea was premature. He considered it more prudent, and more consistent with his statutory duties as a special administrator, to first seek and obtain information on the administration of the Master Trust to put before the common law holders in order to allow them to make an informed decision concerning the future administration of the Master Trust and ATLA. He sought an extension of his administration for that purpose.
On 22 April 2021 Heathgate sent Mr McQuoid a copy of an email it had provided to Messrs Mailman and Bero. It informed the former administrators that the NTMAs made with Heathgate and Quasar implicitly acknowledged that the trustee of the Master Trust may change in that it provided that the trustee was the trustee of the Master Trust from time to time. They advised that Heathgate saw no difficulty in making payments to ATLA 1 Pty Ltd if it were to properly replace Rangelea as the trustee. In respect of the making of payments to some other community organisation, Heathgate advised that those payments could not be made to ATLA unless there was an amendment of the NTMA. Rangelea contend that Messrs Mailman and Bero had set themselves the objective of replacing Rangelea as trustee of the Master Trust with ATLA 1 Pty Ltd. That can be accepted but it could only be achieved with Rangelea’s consent or by order of this Court. In any event their objective could not bind their successors as special administrators and Mr McQuoid disavowed their strategy.
Heathgate had also proposed in its letter to Messrs Bero and Mailman that ATLA could give a notice of temporary waiver of the requirement to make payments to Rangelea on the condition that Heathgate accrued the payments to be paid as a lump sum following any amendments.
On 7 April 2021 Messrs Bero and Mailman were sent the advice of counsel by a solicitor appointed by them. That advice was sent to Mr McQuoid on 27 April 2021. The advice related to amendments of the Quasar NTMA which the former administrators had hoped to replicate in the Heathgate NTMA. The amendments to the Quasar and Heathgate NTMAs provided for semi-annual payments to the ATLA trust paid semi-annually and an administrative allowance to be paid to ATLA. The ATLA trust was the Master Charitable Trust referred to in the Trust Deed. The deed of the Master Charitable Trust was dated 27 February 2002 and made between Robert William Ellis as the settlor and ATLA as the trustee. Mr McQuoid sent the advice to Mr Vu at ORIC on the same day.
On 29 April 2021 Mr McQuoid made the following queries of Messrs Mailman and Bero:
1.Were you supplied with any books and records, data files, etc for the period March 2013 to the date of your appointment for ATLA and its subsidiaries;
2.If yes to 1 above, where are these records now;
3.Will you please provide me with copies of the requests for books and records sent to the former directors and the relevant service providers;
4.Please advise the reason for transferring all of the assets held by Cramond Pty Ltd to the new company established by you called ATLA 1 Pty Ltd;
5.Is there a reason you chose not to keep Cramond and change its directors to people of your choice;
6.Is there a reason why ATLA 1 is not a registered charity;
7.In reference to your proposal to change the NTMA to, amongst other things, replace the Master Trust with the ATLA Trust:
(a) Is the ATLA trust a proposed new entity or is it a reference to the existing Adnyamathanha Traditional Lands Trust (ATLT);
(b) If 7(a) above is the ATLT, does the Deed cover all those native title things covered in the Master Trust;
8.Are you able to provide a copy of the constitutions for Rangelea Holdings Pty Ltd, Ikara Wilpena Enterprises Pty Ltd, Wilpena Aerodrome Services Pty Ltd and the trust deeds for the ATLT and Ikara Wilpena Holdings Trust; and
9.Has Yurlu been deregistered or has that process been commenced.
Messrs Mailman and Bero replied on 29 April 2021 as follows:
1.Such records as they had were with Moore Australia (ATLA’s accountants);
2.Such records as they had were with Moore Australia;
3.Such records as they had were with Moore Australia;
4.The assets were transferred to Cramond Pty Ltd on legal advice. ATLA 1 had not been registered as a charity because Cramond Pty Ltd was not;
5.The ATLA Trust was a reference to the Adnyamathanha Traditional Lands Trust. The constitutions of the companies, as requested, were attached; and
6.Applications to deregister Yurlu had been filed with ASIC.
Mr McQuoid forwarded the reply from the former administrators to Mr Vu.
On 5 May 2021 Mr McQuoid wrote to Rangelea. He requested access to trust documents in his capacity as special administrator. The documents were listed in a schedule to the letter and included:
1.Trust statements showing receipts and payments, property received or transferred, and assets and liabilities;
2.Profit and loss statements;
3.Records of disbursements of trust property; and
4.The register of traditional owners.
His letter asserted that ATLA acted as the agent prescribed body corporate for common law holders and as such was responsible for managing native title rights and interests. It referred to payments by Rangelea under the NTMAs with Quasar and Heathgate which provide for payments for activities in the determination areas which affect or impair the rights and interests of common law holders. The letter claimed that the monies paid to the Master Trust pursuant to those agreements were intended to be for the benefit of all common law holders.
It put ATLA’s interest in the Master Trust and its entitlement to the documents sought in this way:
While ATLA is not a beneficiary, standing to seek access to trust documents is not confined to those with a beneficial interest in the trust. As the prescribed body corporate for the Common Law Holders, ATLA has a strong interest in how the trust is administered.
In late May 2021 Mr McQuoid drew a plan of action for himself which he entitled ‘ATLA – v – Rangelea Strategy’. It reads as follows:
Overview
The next meeting of Rangelea is scheduled for Monday 7 June.
1.Send further letter to ATLA [probably meaning Rangelea] directors advising solicitors should be avoided as they will simply incur further costs and in the long run it is a fundamental duty of a trustee to report to the beneficiaries and how the trust funds had been administered, etc. To be tabled at the 7/6/2021 directors meeting. Expect a negative response;
2.When response is received from Rangelea:
3.ORIC to send formal notices for ATLA books to all past stakeholders;
4.Freeze all compensation payments from Heathgate;
5.Newsletter to all common law holders with request and response letter summaries;
6.Appoint Raelene Webb for advice – draft new master trust deed;
7.Prepare papers for CLH meeting advising a change to the master trust;
8.ORIC/ATLA to launch s 36 Trustee Act – appoint new trustee;
9.ORIC/ATLA to launch s 83c Trustee Act – court appointed inspector;
10.Commence negotiations with Heathgate re new NTMA;
11.Announce extension of special administration to December 2021 or in January 2022;
12.Call for beneficiaries of master trust to detail complaints re distribution;
13.Hold meeting of CLH/ATLA members to change the master trust;
14.Divert compensation payments to ATLA to pay for BAU activities.
In cross-examination Mr McQuoid agreed that the document may have been prepared before 27 May 2021, the date on which he sent an email to Heathgate about suspending payments.
Mr McQuoid agreed that he did not plan to hold a common law holders’ meeting prior to the launch of proceedings under the Trustee Act.
Mr McQuoid explained that the reference in (13) to a meeting of common law holders and ATLA to change the Master Trust was premised on the holders/members agreeing to do so. His position was the same in respect of (14) which concerned the diversion of payments to ATLA for BAU (meaning business as usual) activities. He meant by that the everyday running costs of ATLA. He hoped to make up what was a monthly shortfall between ATLA’s income and expenditure of about $30,000 each month. A major part of that expenditure was in employment costs to cover managers of ATLA’s native title business, heritage surveys and the like.
Mr McQuoid gave evidence that he wanted to develop a comprehensive plan governing ATLA’s activities with a budget to support those activities, after consultation which he would table at a common law holders meeting for their support. He proposed to provide that information at the same meeting at which he would provide information about the management and administration of the Master Trust by Rangelea. His intention was to give the common law holders and members of ATLA an opportunity to make an informed decision about the distribution of royalties between the Master Trust and ATLA. He acknowledged that his personal belief was that it would not be a good outcome if all of the money payable under the NTMAs was paid to the Master Trust with the consequence that ATLA would go into liquidation.
Townsends replied to Mr McQuoid on 19 May 2021. Townsends informed Mr McQuoid that the next meeting of Rangelea would be held on 7 June 2021 and that Townsends would ‘advise the directors that any attempt by [Mr McQuoid] to probe into the affairs of Rangelea would arguably constitute conduct in excess of [his] statutory powers under the Act and could potentially (if necessary) be the subject of an application for an injunction to restrain [him] from undertaking any such conduct (or any, and threatened or foreshadowed conduct)’. It took issue with certain authorities on which Mr McQuoid had relied in his letter for the proposition that standing to access trust documents was not limited to beneficiaries.

Mr McQuoid responded to Townsend’s letter on 1 June 2021. He informed Townsends that pending provision of the information he had requested, he had issued instructions to Heathgate and Quasar to immediately freeze all payments.
The documents requested by Mr McQuoid included a copy of the Traditional Owners Register maintained and held by Rangelea in its capacity as trustee of the Master Trust. Prior to the special administration, ATLA and Rangelea shared common directors and, accordingly, ATLA had access to that register in order to conduct its affairs, including calling meetings of the common law holders. The register maintained by Rangelea is the only updated register of Adnyamathanha native title holders. Those native title holders are comprised of both common law holders of ATLA and the Traditional Owners, as that term is defined in the Trust Deed.
From investigations conducted by Mr McQuoid in late April and early May 2021, he ascertained that in 2020 more than $4 million was paid into the Master Trust pursuant NTMAs to which ATLA is a party. There was little other information available to Mr McQuoid as special administrator or to the common law holders as to the funds paid to Rangelea pursuant to the Heathgate and Quasar NTMAs.
Rangelea’s refusal to respond positively to Mr McQuoid’s request led him to request Heathgate and Quasar to suspend payments made under the NTMAs. The reasons for requesting the suspension were set out in an ATLA newsletter and published on the ORIC website. The primary reason given was the lack of transparency about payments made to Rangelea by Heathgate and Quasar and that Mr McQuoid, as a representative of ATLA members, who are native title holders, was seeking information on how Rangelea was using and distributing those funds.
Mr McQuoid deposed that on 16 July 2021 he received a complaint from an Adnyamathanha person asking what had happened with the royalties and whether Rangelea’s directors could be removed. He also sighted a petition signed by 220 Adnyamathanha people who were beneficiaries of the Master Trust calling for Rangelea to provide financial information.
Mr McQuoid deposed that he came to learn of a complaint made of a lack of transparency as to Rangelea’s financial management of the Master Trust and Rangelea’s refusal to provide financial records in October 2019.
Mr McQuoid deposed that it was the refusal of Rangelea to provide the information he had requested which precipitated the applications he brought. He deposed that he sought the information in order to provide an appropriate level of transparency to the common law holders and if that were not achieved to have an inspector appointed to investigate the administration of the Master Trust.
A petition signed by about 220 people who identified themselves as Adnyamathanha persons and beneficiaries of the Master Trust was sent to Mr McQuoid’s office and also to ORIC in about August 2021. It called on Rangelea and its directors to provide ATLA and the special administrator with financial information and records so that the beneficiaries could be fully informed.
In June 2021 Mr McQuoid caused to be published a newsletter on behalf of ATLA. He informed the readers of the newsletter that he would send regular newsletters whilst administrator. He explained that one of the challenges he faced was ‘working with the directors of Rangelea to provide transparency’ on the management of mining royalties and why he had suspended payments. He gave an assurance that as special administrator he was representing the interests of ATLA members and Adnyamathanha native title holders by seeking information from Rangelea on the use and distribution of the payments made by Heathgate and Quasar.
The newsletter stated that ‘Not all Adnyamathanha native title holders know how the payments made by Heathgate and Quasar have been allocated or used by Rangelea’ and that ‘Rangelea has not released that financial information’. It argued that Rangelea should provide the information and warned that if Rangelea took legal action to prevent the disclosure of the information, large sums of Adnyamathanha money may be paid to expensive lawyers instead of Adnyamathanha native title holders. Mr McQuoid invited Adnyamathanha people concerned about their share of the payment to contact him and called for nominations to an advisory group.
Mr Keith MacKay is a consultant with a degree in engineering. He often works in collaboration with Mr McQuoid. He worked with him following his appointment as special administrator. He deposed that he received complaints from Adnyamathanha persons in relation to the administration of Master Trust in early July 2021, 14 July 2021, 29 July 2021, 2 August 2021, 13 August 2021 and mid-August 2021. On 13 August 2021 he spoke to four different persons, only one of whom was not on the ATLA membership register. He has since made checks and has confirmed that each person’s name and all persons to whom he spoke were on the Traditional Owner Register at the Schedule to the Trust Deed of the Master Trust dated 27 July 2003, save for Ms Taylor.
ORIC issued a public statement on the suspension of payments to Rangelea stating that the Registrar of Indigenous Corporations, Selwyn Button, welcomed the decision of the special administrator of ATLA to suspend mining royalty payments until access to information about trust performance was resolved.
Mr McQuoid issued another newsletter in August 2021. He explained that the main reason ATLA remained under special administration was that Rangelea had not been transparent about payments received from Quasar and Heathgate. He explained that attempts had been made to mediate the dispute.
He asserted that:
The only request that has been made of the directors of Rangelea Holdings Pty Ltd is for them to report to the Adnyamathanha beneficiaries on how they have spent the compensation monies received by the Adnyamathanha Master Trust since 1 July 2017.
He addressed certain rumours which he suspected were being circulated by explaining that:
·ATLA has never asked for access to Adnyamathanha compensation money;
·ATLA does not want to control the Adnyamathanha compensation money;
·The special administrator does not want to control Adnyamathanha compensation money; and
·ATLA and ATLA 1 Pty Ltd do not distribute compensation money. That is the job of the directors of Rangelea.
Mr Coulthard deposed that he was a director of Rangelea. He is an Aboriginal person of the Adnyamathanha people. He was a representative of the Adnyamathanha people in claims made for native title in the Federal Court in the 1990s.
Mr Coulthard gave evidence that in 2010 he participated in negotiations with Heathgate and Quasar for the making of new agreements. The negotiations culminated in the Beverley Agreement dated 12 May 2010 and an agreement with Quasar known as the Four Mile Native Mining Agreement also dated 12 May 2010.
Mr Coulthard deposed that ATLA initially had 32 board members to represent the very many ‘factions’ of the Adnyamathanha community. That number was reduced over time to 24 members but was still more than the 12 directors allowed by the CATSI Act.
Mr Coulthard complained about the activities of the Adnyamathanha Reform Group, later known as the Aboriginal Reform Group of SA. He said he was targeted by members of that group who bore him considerable hostility. He claimed that the Reform Group had the ‘ear of ORIC’, the first and current administrators of ATLA. He described them as a small dissident group who had otherwise shown very little interest in ATLA or native title and attended only a very few meetings.
Mr Coulthard deposed that a meeting of common law holders was arranged by Rangelea and it was held on 20 February 2021. Resolutions were passed by that meeting that it had no confidence in the special administration and that the Adnyamathanha people did not want any change to the agreement with Heathgate and the distribution of royalties. The motion was carried 117 for to three against. Mr Coulthard deposed that Mr McKenzie was not one of the three who voted against it. Mr Coulthard was one of four people elected by that meeting to act as a representative of the common law holders.
Mr Coulthard deposed that in early April 2021 he received a notice from ATLA of the AGM of ATLA to be held at 9.30 am at the Central Oval in Port Augusta on 10 April 2021. He also received a notice of meeting of the Adnyamathanha native title holders to be held at the same location but from 1.00 pm. Exhibited to the notice for the 1.00 pm meeting were four proposed resolutions namely:
·Resolution 1: that Rangelea Holdings be removed as the trustee of the Adnyamathanha Master Trust;
·Resolution 2: that ATLA 1 Pty Ltd be appointed as trustee of the Adnyamathanha Master Trust and that royalty payments be made to ATLA 1 Trust;
·Resolution 3 sought to have administrative allowances identified in the Heathgate and Quasar Resources to be paid to ATLA on a monthly basis;
·Resolution 4: this related to agreements with Heathgate and ATLA and amended to provide greater opportunities for Adnyamathanha people.
Mr Coulthard deposed that he attended the meeting but none of the resolutions were voted upon. He deposed that the second meeting was not held and that Mr Mailman advised the people present at the oval in the afternoon that the meeting was a continuation of the one which had commenced earlier for ATLA members on 10 April 2021. Mr Coulthard deposed that many of the people at the afternoon meeting were not ATLA members.
I accept Mr Coulthard’s evidence as to events at those meetings. I also accept that it shows that Messrs Mailman and Bero had set upon a course of obtaining the consent of the ATLA members to pursue those objectives by whatever lawful means were available to them. However, that evidence does not persuade me that Mr McQuoid had adopted their objectives or stratagems.
Mr Coulthard deposed as to a meeting that was held on 27 November 2021 of common law holders at the Institute Building in Hawker. The common law holders had asked Rangelea to arrange the meeting. Resolutions were passed:
·Motion of no confidence in the special administrators;
·That the Adnyamathanha people do not want any change to the agreement with Heathgate and they wanted royalties to continue to be given out.
Mr Coulthard deposed that Mr McQuoid had not been instructed by the common law holders to interfere with the arrangements to the payments of royalties into the Master Trust by mining companies. He deposed that Mr McQuoid had never sought instructions from the common law holders to request information or documents, nor approval for the institution of these proceedings.
On 20 April 2021 the Registrar extended the special administration of the ATLA to 30 June 2021 after it was first placed under special administration on 26 March 2020. Mr McQuoid was appointed the special administrator.
The criticisms made of Mr McQuoid which were said to affect his unreliability were overstated and often proceeded along misunderstanding of both his evidence and the material which were said to be inconsistent with it. For example, a submission was made that Mr McQuoid’s testimony that the operation of the Sub-Group was only recently becoming clear to him contrasted with the request made of Rangelea in his letter of 5 May 2021 that it provide records showing in relation to each payment inter alia ‘Sub-Group, eligible entity, eligible trust or other reference to which the transaction relates’.
The letter clearly relies on the terms of the Trust Deed itself. It is quite another thing to understand how those provisions operated in practice. I have set out the evidence of Mr Coulthard in that respect. Moreover, the complexity of those provisions and their inter-relationship is the subject of paragraphs [86] to [101] above. It is not at surprising to me that Mr McQuoid has only, through this litigation, come to appreciate more about how the Sub-Groups operated.
Similarly, Mr McQuoid’s evidence that the insolvency of ATLA is not his priority and that the insolvency of ATLA was not material was contrasted with his statement in the April 2021 newsletter that ‘My first priority is to ensure that ATLA is financially sound and has ongoing money coming into its bank account’. It is quite consistent for Mr McQuoid to take the responsible financial position described in the newsletter but yet explain, as he did in his evidence, that the extent of the possible shortfall in revenue was important before concerns of insolvent trading became great. He explained that he was in negotiations with the Commonwealth Government to pay out the creditors of ATLA and solve any issue as to ‘insolvency’.
Rangelea also relies on what was said to have been a strategy to replace it as trustee. However, as I have explained, there is no evidence of that. Although prefacing its submissions on the testimony of the witnesses by putting the position that Mr McQuoid’s evidence was unreliable, later in its written submissions Rangelea took the position that Mr McQuoid had ‘adopted a pretence of having been morally affronted by the idea that the formal Special Administrators had intended [to remove Rangelea] in order to cause the court to infer that such an outcome was not a part of his strategy’. I reject that submission. Whatever Mr McQuoid’s personal view might have been as to the replacement of Rangelea, I am satisfied that his intention in seeking the documents was to do no more than obtain information which may or may not reveal Rangelea was properly administering the Master Trust so that he could have put it before the members.
Rangelea also submitted that Mr McQuoid’s evidence that he never pursued a change to the NTMAs was at the least disingenuous by reason of the strategy that he had set out. I reject that submission.
I accept the evidence of Mr McQuoid. I am not persuaded that he has brought the application for an improper or collateral purpose.
I will make an order for inspection of the trust records prescribed by regulation 5B of the Trustee Regulations in favour of ATLA for two reasons. First, by reason of its statutory function as agent for the common law holders who are beneficiaries it should be accorded the standing of a beneficiary to seek an order for the purposes of providing that information to its principals. The evidence that a number of ATLA’s members and common law holders who are also beneficiaries may not be in favour of the application is not a reason to decline to make those orders. I am not satisfied that such opposition as there may be to ATLA’s application is universal or fully informed. Secondly, I would accord ATLA standing to bring the application in its capacity as the holder of the native title rights and interests from which the income of the Master Trust is derived. Moreover, in that capacity, I would accord ATLA an entitlement under the general law to take access to the trust records prescribed by regulation 5B of the Trustee Act. ATLA is entitled to know how Rangelea has distributed the income ATLA has assigned to it so that it might consider whatever not to continue to do so.
Conclusion
For the above reasons, I am satisfied that it is in the interests of the administration of the Master Trust and the members of the Sub-Groups and, in order to expedite the inspection, I will order that Rangelea immediately produce for inspection by the Adnyamathanha applicants and ATLA:
(a)those records specified in regulation 5(1)(k) of the Trustee Regulations which would enable the receipt and disposition of property by the Master Trust to be conveniently and properly audited for the financial years ending 2018 to 2022.
For the above reasons I am also satisfied that it is proper to appoint an inspector to investigate the administration of the Master Trust so that the secondary dissemination of the distributions made to Sub-Groups can be identified. I refer and rely in this respect to paragraphs [105]-[111] above. Additionally, I am satisfied that an inspector should be appointed to investigate the of mismanagement which Mr Coulthard complained and the reasons for ATLA’s strained financial state.

[2023] SASC 51

6 April 2023