Australian Executor Trustees Ltd v Attorney General (WA)
[2015] WASC 439
•24 NOVEMBER 2015
AUSTRALIAN EXECUTOR TRUSTEES LTD -v- ATTORNEY GENERAL (WA) [2015] WASC 439
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 439 | |
| 24/11/2015 | |||
| Case No: | CIV:2530/2015 | 30 SEPTEMBER 2015 | |
| Coram: | MARTIN CJ | 30/09/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Direction that plaintiff trustee is justified in executing deed of settlement containing certain clauses | ||
| B | |||
| PDF Version |
| Parties: | AUSTRALIAN EXECUTOR TRUSTEES LTD as trustee for the Martu Banyjima Charitable Trust ATTORNEY GENERAL (WA) MAITLAND PARKER as representative of the Beneficiaries of the Martu Idja Banyjima Charitable Trust as defined in the Trust Deed ALEC TUCKER CHARLIE SMITH STEVEN SMITH KEITH LETHBRIDGE MAITLAND PARKER TIMOTHY PARKER DAWN HICKS ARCHIE TUCKER BANJIMA NATIVE TITLE ABORIGINAL CORPORATION RNTBC BHP BILLITON IRON ORE PTY LTD |
Catchwords: | Trusts Trustee application for directions pursuant to s 92(1) of the Trustees Act 1962 (WA) Whether trustee justified in entering deed of settlement containing certain clauses Turns on own facts |
Legislation: | Charitable Trusts Act 1962 (WA), s 21 Corporations Act 2001 (Cth), s 601WBG Native Title Act 1993 (Cth) Property Law Act 1969 (WA), s 11 Rules of the Supreme Court 1971 (WA), O 58 r 2 Trustee Act 1925 (NSW), s 63 Trustees Act 1962 (WA), s 92 |
Case References: | Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 Banjima People v State of Western Australia (No 3) [2014] FCA 201 Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening [2009] EWHC 716 (Comm) Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ATTORNEY GENERAL (WA)
First Defendant
MAITLAND PARKER as representative of the Beneficiaries of the Martu Idja Banyjima Charitable Trust as defined in the Trust Deed
Second Defendant
ALEC TUCKER
CHARLIE SMITH
STEVEN SMITH
KEITH LETHBRIDGE
MAITLAND PARKER
TIMOTHY PARKER
DAWN HICKS
ARCHIE TUCKER
Third Defendants
BANJIMA NATIVE TITLE ABORIGINAL CORPORATION RNTBC
Fourth Defendant
BHP BILLITON IRON ORE PTY LTD
Fifth Defendant
Catchwords:
Trusts - Trustee application for directions pursuant to s 92(1) of the Trustees Act 1962 (WA) - Whether trustee justified in entering deed of settlement containing certain clauses - Turns on own facts
Legislation:
Charitable Trusts Act 1962 (WA), s 21
Corporations Act 2001 (Cth), s 601WBG
Native Title Act 1993 (Cth)
Property Law Act 1969 (WA), s 11
Rules of the Supreme Court 1971 (WA), O 58 r 2
Trustee Act 1925 (NSW), s 63
Trustees Act 1962 (WA), s 92
Result:
Direction that plaintiff trustee is justified in executing deed of settlement containing certain clauses
Category: B
Representation:
Counsel:
Plaintiff : Mr J L Southalan
First Defendant : Mr P D Evans
Second Defendant : Mr S J Wright
Third Defendants : Mr S J Wright
Fourth Defendant : Mr S J Wright
Fifth Defendant : Mr D J Jackson
Solicitors:
Plaintiff : Australian Executor Trustees Ltd
First Defendant : State Solicitor for Western Australia
Second Defendant : Roe Legal Services
Third Defendants : Roe Legal Services
Fourth Defendant : Roe Legal Services
Fifth Defendant : Ashurst Australia
Case(s) referred to in judgment(s):
Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185
Banjima People v State of Western Australia (No 3) [2014] FCA 201
Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening [2009] EWHC 716 (Comm)
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
- MARTIN CJ:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
Introduction
1 Australian Executor Trustees Limited (the Trustee), in its capacity as trustee for the Martu Idja Banyjima Charitable Trust (the MIB Charitable Trust), is the plaintiff in these proceedings. The Trustee applies for directions pursuant to s 92 of the Trustees Act 1962 (WA) (the Act) to the effect that it is justified in executing a deed containing three clauses, namely cl 3(g), cl 8(a)(iii) and cl 22(f). The deed in which these clauses are contained is a deed of settlement relating to proceedings in this court.
Urgency
2 Although the settlement deed has not yet been executed by all parties, it contains terms specifying dates upon which a number of matters are to have occurred. One of those matters is the asserted requirement that the Trustee obtain the directions now sought on or before 30 September 2015. At least some of the parties interested in the deed of settlement contend that if the court's approval is not obtained by that date, an entitlement to the payment of interest under the terms of the deed will be lost, to the detriment of the parties entitled to those payments.
3 For that reason, these proceedings, which commenced on Friday 25 September 2015, have been listed and heard as a matter of urgency - indeed within two business days of their commencement. Although not all parties to these proceedings concede the consequences asserted to flow under the terms of the proposed deed of settlement if court approval is not obtained by today, none have opposed the urgent hearing of this application. Accordingly, my resolution of these proceedings as a matter of urgency should not be taken to connote a finding to the effect that the proper construction of the proposed deed of settlement is as asserted, but merely reflects the parties' consensus that it was desirable to resolve these proceedings as a matter of urgency.
The facts
4 I turn now to the facts established by the evidence which I have received.
The MIB Charitable Trust
5 The MIB Charitable Trust was created by a deed of settlement dated 17 February 2005. The beneficiaries of the trust are individual members of the MIB People, a term defined in the trust deed to mean:
the people who are from time to time members of the Aboriginal peoples known as the Martu Idja Banyjima People being the persons who are by Aboriginal Tradition entitled to the use or occupation of the Lands irrespective of whether or not the traditional entitlement is qualified as to place, time, circumstances, purpose or permission and includes those persons, if any, having native title thereto under common law.
6 Pursuant to the terms of the settlement deed, the settlor, Mr Anthony John Pike, settled an amount of $10 on Kingsworld Pty Ltd as the original trustee of the MIB Charitable Trust. Clause 4.1 of the deed provides that the trustee may, from time to time, accept further money or real or personal property by way of contributions to the trust. The deed further provides that the trust fund is to be applied exclusively for the promotion of the charitable objects specified in the deed.
7 It is unnecessary to set out those objects in detail and sufficient to observe that they generally correspond to charitable objects recognised by the common law. Within that general constraint, the deed contains specific provisions regulating the use to which trust income can be put in any accounting period. It will be necessary to return to some of the particular provisions of the trust deed in the context of the Trustee's request for directions with respect to actions which would have the effect of amending that deed.
The native title claims
8 Mr Maitland Parker is the second defendant to these proceedings in his capacity as representative of the beneficiaries of the MIB Charitable Trust. From 1998 until 3 June 2011, Mr Parker was an applicant in a claim for native title made on behalf of the Martu Idja Banjima People (MIB People). On 3 June 2011, that claim was combined with other native title claims to become the Banjima People native title claim. Mr Parker remained an applicant in the combined claim, together with Mr Timothy Parker, Mr Archie Tucker, Ms Dawn Hicks, Mr Alec Tucker, Mr Steven Smith, Mr Keith Lethbridge and Mr Charlie Smith. Those people are the third defendants in these proceedings. As one would expect given the history of the native title proceedings, the Banjima People, being the group advancing the merged claim, is a wider group than the Martu Idja Banjima group, which can be regarded as a subset of the Banjima People.
9 On 11 March 2014, the Federal Court made orders1 to the effect that native title exists in respect of the combined claim area; that the persons holding native title to the claim area are the Banjima People, as defined in the orders of the court; and that native title was to be held on trust for those people by the Banjima Native Title Aboriginal Corporation RNTBC (ICN 7971), which is the fourth defendant to these proceedings.
The Attorney General
10 I digress to observe that the first defendant in these proceedings is the Attorney General for Western Australia. Given the charitable nature of the MIB Charitable Trust, the Attorney General was a necessary and proper party to these proceedings. However, he has advised the court through counsel that he does not wish to take any active part in these proceedings and neither consents to nor opposes the relief sought.
The Project Development Agreement
11 Mr Maitland Parker, Mr Winston Parker and Mr Wobby Parker entered into a deed dated 12 December 2000 known as the Project Development Agreement or sometimes as the MIB MAC Agreement. The other parties to the deed were the MIB People said to comprise the native title claim group, being at the time the smaller group than the Banjima People on whose behalf the merged claim was later advanced; and the company then known as BHP Iron Ore Pty Ltd and which is now known as BHP Billiton Iron Ore Pty Ltd (BHP Iron) in its capacity as manager and agent for a joint venture comprising other mining companies. BHP Iron is the fifth defendant in these proceedings.
12 In very general and somewhat imprecise terms, the Project Development Agreement recorded the MIB People's consent to the development and operation of a mine within the area of the native title claim and contains terms under which compensation was to be paid to the MIB People.
13 Pursuant to cl 7.2 and cl 7.3 of the Project Development Agreement, compensation is to be paid in two separate forms. The first form of payment, which is dealt with by cl 7.2, concerns certain milestone payments of specified amounts to be paid upon the occurrence of certain events in the course of the development of the mining project. The second form of payments are dealt with by cl 7.3 of the agreement and are described as project payments. These payments are calculated in accordance with a formula contained in a schedule to the agreement which contains components relating to the quantity and price achieved by the sale of iron ore produced from mining operations conducted within the native title claim area.
14 Each of those clauses provides that payments are to be made to the MIB Charitable Trust. However, neither the MIB Charitable Trust nor the Trustee of that trust were parties to the Project Development Agreement. Further, because the description of the beneficiaries to the MIB Charitable Trust is cast in terms which might extend more broadly than the native title claim group at the time the Project Development Agreement was signed, it cannot be assumed that there is an exact coincidence between the beneficiaries of that trust and the parties to the Project Development Agreement.
15 As I have noted, under the Project Development Agreement, as executed, payments due under the Project Development Agreement were to be made to the MIB Charitable Trust and, therefore, for the benefit of the beneficiaries of that trust. However, by a deed of variation dated 6 December 2001, the parties to the Project Development Agreement agreed to vary its terms by amending cl 8.2, under which the Messrs Parker who were parties to the deed and to whom I referred earlier, could request BHP Iron to pay the sums due pursuant to cl 7.2 and cl 7.3 of the Project Development Agreement to a person other than the MIB Charitable Trust or for some other purpose. Under the same clause, BHP Iron was given an absolute discretion to either agree to such a request with or without conditions or to refuse the request.
The suspension of payments under the Project Development Agreement
16 The Project Development Agreement also contains provisions relating to the suspension of payments due under its terms upon the occurrence of certain events. On 28 April 2009, BHP Iron gave notice to the MIB People that it was suspending payments under the Project Development Agreement, asserting its entitlement to do so in accordance with the terms of that agreement. Those assertions included allegations with respect to a failure to comply with the terms of the Project Development Agreement.
The change of trustee
17 On 27 April 2011, a new trustee was appointed in place of the original trustee of the MIB Charitable Trust. That trustee was Plan B Trustees Ltd (Plan B). On 2 April 2014, the Australian Securities and Investments Commission issued a certificate of transfer under s 601WBG of the Corporations Act 2001 (Cth) to the effect that, as of 1 May 2014, the estate assets and liabilities of Plan B, including those assets relating to the MIB Charitable Trust, are vested in the Trustee.
The proceedings relating to the suspended payments
18 In 2012, Mr Maitland Parker commenced proceedings in this court against BHP Iron and other parties in relation to the suspended payments. The then trustee of the MIB Charitable Trust, Plan B, was originally joined as a party to those proceedings. However, on 30 May 2012, Edelman J made an order that the proceedings against Plan B be discontinued.
19 In correspondence prior to that order being made, the solicitors for Plan B asserted that it was not a party to the Project Development Agreement and, as such, could not pursue any claim under that agreement in its capacity as trustee of the MIB Charitable Trust. The solicitors for Plan B also asserted that it could not pursue a claim pursuant to s 11 of the Property Law Act 1969 (WA) (Property Law Act) because the payments due under the Project Development Agreement were not for its direct benefit but were to be held by it on trust, referring to and relying upon the decision in Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening.2
20 It is unnecessary to determine the validity of that proposition or whether the Trustee could advance a claim for payment of moneys due under the Project Development Agreement under either s 11 of the Property Law Act or perhaps rather more tenuously at common law by extension of the principles enunciated in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd.3 I will explain the reasons why it is unnecessary to determine those issues in due course.
21 The critical point is that the trustee at the time chose not to pursue any claim under the Project Development Agreement when proceedings were commenced in relation to that agreement. On the information available to me, the current Trustee has never displayed any propensity to pursue a claim under that agreement. Rather, it has been content to leave the pursuit of the claim for the suspended payments to the parties to that agreement, including most particularly Mr Maitland Parker.
The proposed settlement deed
22 The issues raised in those proceedings were referred to mediation, which has resulted in extended negotiations for the settlement of the issues raised by those proceedings. The proposed deed the subject of these proceedings for directions is a deed which has been negotiated for the purpose of resolving all the issues raised in those proceedings on terms acceptable to the parties.
23 BHP Iron has not yet formally approved execution of the proposed deed, although its board will meet during the course of the next month in order to finally determine its position. All other parties to these proceedings, being essentially the Trustee; the native title claim representatives (who are the third defendants to these proceedings and who include Mr Maitland Parker, who in turn is also the second defendant in his capacity as representative of the beneficiaries of the MIB Charitable Trust); and the Banjima Native Title Aboriginal Corporation RNTBC, the fourth defendant, have resolved to enter into the proposed deed.
24 Meetings of the Banjima People were held in Karratha on 3 and 4 September 2015. Approximately 89 people attended the meetings on 4 September. Mr Maitland Parker has deposed that he has been advised by a lawyer representing the native title body for the Pilbara region, that body being the body recognised under the Native Title Act 1993 (Cth) in respect of that region, that all persons who were formerly members of the MIB native title claim group were sent notices informing them of the meeting. On 4 September 2015, a meeting of the Banjima People passed a resolution authorising the representative native title claimants, who are the third defendants, to enter into the deed of settlement. The MIB People met separately and passed a similar resolution authorising entry into the deed of settlement.
25 The terms of the proposed deed of settlement are commercially confidential. However, for present purposes, it is sufficient to observe that they include provisions which would require an amount to be paid to the Trustee in its capacity as trustee of the Banjima Charitable Trust, which is a different trust to the MIB Charitable Trust; and would require another amount to be paid to the Trustee in its capacity as trustee of another trust known as the Banjima Direct Benefits Trust; and a further amount to be paid to the Trustee as agent of the Banjima People, the Banjima Native Title Aboriginal Corporation, Mr Maitland Parker and other parties to the proceedings commenced by Mr Parker on account of costs and disbursements in connection with those proceedings.
26 Under the terms of the proposed deed, BHP Iron is also required to make a payment to the MIB Charitable Trust in respect of obligations which arose under the Project Development Agreement prior to the service of the notice of suspension. As the beneficiaries of that trust can be regarded as a subset of the Banjima People, who are the beneficiaries of the Banjima Charitable Trust and the Banjima Direct Benefits Trust, amongst others, the MIB People will be included amongst the beneficiaries of the various payments to be made if the deed of settlement proceeds.
27 The proposed settlement deed also creates what is described as a Comprehensive Agreement which will confer benefits upon all of the Banjima People and, indeed, potentially upon other Aboriginal people in the Pilbara region, and which covers all of BHP Iron's iron ore mining operations in the Banjima native title determination area in place of the Project Development Agreement, which will be terminated.
Legal principles
28 Before dealing with the specific provisions in the proposed deed of settlement in respect of which directions are sought, it is desirable to refer to the general legal principles governing the provision of directions from the court in circumstances such as this. In this case, there are at least three sources of jurisdiction which would potentially apply to the directions sought.
29 The first source of jurisdiction is the power specifically conferred upon the court by s 92(1) of the Act and which has been expressly invoked by the Trustee. That section provides:
92. Directions, trustee may ask Court for
(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
30 The second potential source of jurisdiction is the power conferred by s 21 of the Charitable Trusts Act 1962 (WA). The third is the procedure authorised by O 58 r 2 of the Rules of the Supreme Court 1971 (WA). In this case nothing turns upon the specific source of jurisdiction, as the circumstances of the case are such that the general principles applicable would be the same whatever the source of the jurisdiction invoked and utilised.
31 Dealing with a broadly similar statutory provision to s 92 of the Act - s 63 of the Trustee Act 1925 (NSW) - in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand,4 the plurality of the High Court comprising Gummow ACJ and Kirby, Hayne and Heydon JJ cautioned that provisions conferring jurisdiction upon a court should not be read down by the court implying limitations on the exercise of the power which are not to be found in the express words of the statute.5 The only jurisdictional requirement expressed in provisions like s 92 of the Act is the requirement pertinent to this case that the direction relate to the exercise of any power or discretion vested in the Trustee. Plainly that jurisdictional threshold is crossed in this case.
32 All members of the High Court in the case to which I have referred considered that the powers conferred by provisions like s 92 of the Act should generally be exercised for the purposes for which they are conferred, which are the protection of the property of the trust and the protection of a trustee acting properly and in accordance with the directions of the court. Subject to conformity with those overarching purposes, the exercise of the powers conferred by such provisions is discretionary and will depend upon the particular facts and circumstances of each case, unconstrained by inflexible rules or prescriptive standards.
33 Nevertheless, the cases do provide some guidance with respect to the exercise of the discretion conferred upon the court.6 In exercising its powers, the court will generally endeavour to act in the best interests of the beneficiaries of the relevant trust and, where appropriate, will take account of the views of those beneficiaries. Further, ordinarily the court will not exercise its jurisdiction in such a way as to usurp the roles and responsibilities of trustees in relation to the making of commercial decisions or with respect to the conduct of litigation. Rather, the court will be concerned to ensure that the trustee has taken proper advice and given full consideration to all relevant matters before arriving at a reasoned and appropriate decision. If satisfied of those matters, in appropriate cases the court will give the directions sought and thereby confer protection upon a trustee taking action in accordance with those directions.
34 Sometimes a question arises as to whether a trustee has power to take the action proposed. There is, however, no such question in this case. It is common ground and clear on the materials provided to me that no question of the power of the Trustee arises in this case.
The specific provisions in the proposed deed
35 I turn now to the specific provisions in respect of which directions are sought. Two of the provisions of the proposed deed are conveniently considered together. They are cl 3(g) and cl 22(f). Clauses 3(a) - (d) of the proposed settlement deed contain mutual releases by all parties to each other in respect of any and all claims associated in any way with the proceedings commenced by Mr Maitland Parker against BHP Iron. Clause 3(f) contains the provisions with respect to payment to be made by BHP Iron as consideration for those releases and to which I have already referred. In that context, cl 3(g) relevantly provides:
The parties agree that the payments referred to in clause 3(f)(i) to 3(f)(iii) are made in lieu of the Suspended Payments ...
36 Clause 22(f) provides:
The Trustee acknowledges:
(i) the releases which the other parties have made in clauses 3(a) to 3(d) and that those parties are subject to those obligations;
(ii) that the Suspended Payments are not and have not, since the Trustee became trustee of the MIB Trust on 23 March 2011, been property of the MIB Trust;
(iii) that it has made its own enquiries and it is not aware of there being any other property of the MIB Trust at the Commencement Date arising under clauses 7.2 and 7.3 of the MIB MAC Agreement; and
(iv) the variations of the MIB Trust Deed, in clause 8(a), which the parties have specified to occur after the Settlement Date.
37 I digress to observe that in the proposed deed of settlement, the agreement that I have been describing as the Project Development Agreement is referred to as the MIB MAC Agreement. In relation to proposed clause 22(f)(iii), there is uncontradicted evidence before the court from the Trustee to the effect that the Trustee is not aware of there being any other property of the MIB Charitable Trust arising under the relevant clauses of the Project Development Agreement. In relation to cl 22(f)(iv), as cl 8(a)(iii) is another provision of the proposed deed of settlement in respect of which directions are sought, I will refer to that provision shortly.
38 It can be seen that the general effect of cl 3(a) and cl 22(f) is that the Trustee acknowledges that the Suspended Payments were not ever trust property and that BHP Iron is to be released from any obligation to make those payments in return for the obligation to make the payments and to assume the obligations contained in the proposed deed of settlement, including the obligations imposed by the Comprehensive Agreement which would replace the Project Development Agreement.
39 Although I have been advised that the Trustee has taken legal advice in relation to these matters, I have not been provided with that legal advice or any summary of it. Nor have I been provided with any information with respect to the quantum of the payments to be made under the proposed settlement and the new Comprehensive Agreement, as compared to the quantum of the disputed Suspended Payments. Nor has the court been provided with any information which would enable it to assess whether the MIB People would be likely to receive greater benefits under the Project Development Agreement than under the proposed Comprehensive Agreement.
40 That is because the Trustee does not ask the court to assess the legal or commercial propriety of the terms of the proposed settlement generally. Rather, the application for directions is brought in reliance upon the limited interest of the MIB Charitable Trust in the subject matter of the settlement, and upon the fact that both the Banjima People and the MIB People have approved the proposed settlement.
41 In particular, the Trustee asserts that because the former trustee was not a party to the proceedings which are being settled but was removed from those proceedings by order of the court at its request, and because the Suspended Payments were never made to the MIB Charitable Trust and therefore never became trust property, it is appropriate for the court to give directions approving the Trustee's entry into a deed containing these provisions.
42 It can at once be accepted that moneys that were not paid into the MIB Charitable Trust never became trust property. Consistently with the duty of candour, the Trustee has disclosed to the court accounts for the trust which refer to the Suspended Payments as a contingent asset of the trust and correspondence which refers to the possibility of fees being charged on a BHP suspension account. However, I am satisfied from the evidence that the accounts simply reflect a note of the possibility of such payments being made at some time in the future and that no BHP suspension account was ever created in fact. In any event, documents of this kind cannot change the legal character of the trust and its assets. Clearly funds due from BHP Iron under the Project Development Agreement did not become assets of the trust until paid to the trust.
43 However, it does not necessarily follow that the MIB Charitable Trust has never had trust property in the form of a cause of action in relation to the enforcement of any obligation to make those payments. Such a cause of action might arise either under s 11(2) of the Property Law Act or more tenuously, perhaps, at common law on the basis that the MIB Charitable Trust is the party for whose benefit payments are to be made under the Project Development Agreement.
44 However, the facility to change the entity to which payments are to be made by BHP Iron, which is provided by cl 8.2 of the Project Development Agreement and which was introduced by the deed of variation to that agreement in 2001, might create some difficulties for that line of argument. I also note the line of argument advanced by the solicitors for the former trustee prior to that trustee seeking removal from the proceedings commenced by Mr Maitland Parker to the effect that it was not entitled to assert a cause of action in reliance upon s 11(2) of the Property Law Act because it was not the beneficial recipient of payments due under the Project Development Agreement.
45 As I have indicated, it is unnecessary to resolve those contentions because the current Trustee has never sought to assert a right to the payments but has been content to leave pursuit of the action to Mr Maitland Parker. As I have noted, the court removed Plan B as a party from those proceedings at its request. Although there is no statement of the reasons given by the court for taking that action, it seems reasonable to infer and I have been advised from the bar table that the reason that action was taken was because no relief was sought against Plan B, nor did Plan B indicate any desire to actively participate in the proceedings or to pursue any relief on its own behalf.
46 In practical terms, given that the parties to the Project Development Agreement were all parties to the proceedings, it is difficult to see what role, if any, Plan B or the current Trustee in its capacity as trustee of the MIB Charitable Trust could have played in those proceedings. For example, if the parties to the agreement had determined to resolve the proceedings on certain terms, as it seems they have now done in principle, it is difficult to see any basis upon which the Trustee could prevent resolution of the proceedings in those terms - at least in the absence of some allegation that the compromise is being undertaken in bad faith or in breach of an obligation owed by the parties to the MIB Charitable Trust. No such allegation has been made or foreshadowed in any way in any of the materials before me. To the contrary, the evidence suggests that all parties with an interest in the proceedings and their resolution have been consulted and have approved the terms of the compromise proposed.
47 Put another way, given the history of the proceedings commenced by Mr Maitland Parker in 2012 and in particular the removal of the former trustee as a party to those proceedings at its request, there does not seem to me to be any practical means by which the Trustee could interfere with the proposed settlement in the absence of some allegation of impropriety or misconduct or breach of duty owed to the Trustee, and there is no such allegation. Even if there were such an allegation, the capacity of a non-party to interfere with the settlement of proceedings would have to be regarded as doubtful.
48 Accordingly, it seems to me that the clauses to which I have referred do not require the Trustee to give up anything of any meaningful or practical value, but simply acknowledge the reality, which is that responsibility for the proceedings with respect to the Suspended Payments and the compromise of those proceedings has passed to others with the knowing acquiescence of all concerned.
49 There is nothing in the evidence before the court which would suggest that those others have failed to conduct those proceedings with due diligence or to take account of the views of those with an interest in the proceedings. On the contrary, the evidence suggests that the proceedings have been conducted appropriately and that the people with an interest in the outcome of those proceedings were given the opportunity to express their views in relation to the proposed settlement at the meetings held in Karratha earlier this month. As I have noted, both groups of people involved in those meetings resolved to authorise the compromise proposed.
50 I also note, as was submitted by the second to fourth defendants, that if the Trustee chose to take no action in relation to the settlement of the proceedings and to await the outcome of the proceedings commenced by Mr Maitland Parker, there is, of course, a significant risk that the trust property or potential trust property in the form of payments due under the Project Development Agreement could be lost entirely if those proceedings ran their course and BHP Iron was successful in its defence of those proceedings and in the pursuit of its counterclaim in which it asserts a right to terminate the Project Development Agreement.
51 Although the court is not being asked to assess the commercial propriety of the terms of settlement generally, it is to be noted that under those terms, payments are to be made to trusts which will provide benefits to the Banjima People generally, and perhaps to a broader group of Aboriginal people in the Pilbara region, albeit not exclusively to the particular beneficiaries of the MIB Charitable Trust. Although the court is not aware of the quantum of those benefits, the evidence establishes that both the Banjima People and the MIB People have agreed to the terms of settlement proposed at the meetings to which I have referred.
52 Taking the views of those groups into account and taking into account the practical incapacity of the Trustee to take any step which could interfere with the settlement of proceedings to which it is not a party, and the risks to which potential trust property would be subject unless the proceedings are resolved, in my view the course proposed by the Trustee in relation to the execution of a deed containing cl 3(g) and cl 22(f)7 of the proposed settlement deed is appropriate.
53 The third provision of the proposed settlement deed in respect of which directions are sought is cl 8(a)(iii). That clause relates to the power to vary the MIB Charitable Trust deed, which is conferred by cl 13 of that trust deed. In particular, cl 13.1 and cl 13.2 give the Trustee powers to modify and vary the trusts and powers conferred pursuant to the deed in certain respects which it is not necessary to set out in detail for the purposes of these reasons other than to observe that it is common ground that they empower the Trustee to make the amendments specified in cl 22(f)(iv) of the proposed deed of settlement. In that context, cl 13.3 of the MIB Charitable Trust deed provides:
In accordance with clause 8.1 of the Project Development Agreement, this Deed and the trusts, objects, powers and classes of beneficiaries declared under this Deed may not be amended materially without the prior written approval of the Joint Venturers.
54 The effect of cl 8(a)(iii) of the proposed settlement deed would be to require the Trustee to amend that clause so that it would read:
This Deed and the trusts, objects, powers and classes of beneficiaries declared under this Deed may not be amended without the prior written approval of the Joint Venturers.
55 The amendment would make two material changes. The first would be to delete the reference to cl 8.1 of the Project Development Agreement. As the Project Development Agreement is to be terminated and overtaken by another agreement, the removal of reference to a redundant agreement is entirely uncontroversial and appropriate. The other change is to prevent any further amendment of the MIB Charitable Trust without the prior written approval of the Joint Venturers, whereas under the current cl 13.3 such prior written approval is only required for material amendments.
56 There are three reasons why it seems to me to be appropriate for the Trustee to agree to that proposed amendment. First, the only effect of the amendment will be to require the prior written approval of the Joint Venturers to amendments to the trust deed which are immaterial. If the amendment to the trust deed can be properly characterised as immaterial, it is difficult to see that any substantive right of value is lost by requiring the prior written approval of the Joint Venturers. In the unlikely event that such approval was refused, the inability to make an immaterial amendment is unlikely to be of any significant detriment or prejudice.
57 Secondly, as currently worded, there must be considerable uncertainty with respect to the application and effect of the requirement that prior written approval of the Joint Venturers must be obtained to any 'material' amendment. The amendment to the provision proposed would have the benefit of removing that uncertainty for the benefit of all parties. Third, the MIB People who are the beneficiaries of the MIB Charitable Trust have approved the terms of the settlement proposed.
58 For these reasons, I have concluded that it is appropriate for the Trustee to enter into the proposed settlement deed insofar as the deed contains the three provisions the subject of these proceedings and to which I have specifically referred.
Conclusion
59 I note also that all parties to these proceedings support the relief sought and have not been able to identify any other persons or parties who have an interest in these proceedings and who are not represented or should have been joined. For those reasons, there will be directions in terms of par 2 of the originating summons to the effect that the Trustee is justified in executing a deed containing the three clauses to which I have referred. At the request of the parties, I will defer publication of these reasons until the court has been advised that the proposed settlement deed has been executed.
1 See Banjima People v State of Western Australia (No 3) [2014] FCA 201.
2Dolphin Maritime & Aviation Services Ltd v Sveriges Angartygs Assurans Forening [2009] EWHC 716 (Comm).
3Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107.
4Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66.
5Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [55] - [58].
6 See, eg, Application of Perpetual Trustee Company Ltd [2003] NSWSC 1185 [11] (Young CJ in Eq).
7 Leaving aside cl 22(f)(iv) for the moment, which acknowledges amendments to be made to the MIB Charitable Trust deed under cl 8(a), including cl 8(a)(iii), which is also the subject of the application for directions.
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