Duke Eastern Gas Pipeline Pty Ltd and Anor, An application by (No 3)
[2004] VSC 451
•5 November 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7935 of 2002
IN THE MATTER OF AN APPLICATION BY
DUKE EASTERN GAS PIPELINE PTY LTD
and DEI EASTERN GAS PIPELINE PTY LTD
for various orders in relation to the Nyarmin Trust
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JUDGE: | Ashley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 November 2004 |
DATE OF JUDGMENT: | 5 November 2004 |
CASE MAY BE CITED AS: | An Application by Duke Eastern Gas Pipeline Pty Ltd (No. 3) |
MEDIUM NEUTRAL CITATION: | [2004] VSC 451 |
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Application to set aside orders - whether applicants were persons affected by orders - whether applicants on notice - discretionary considerations - Rule 46.08.
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APPEARANCES: | Counsel | Solicitors | |
| For the Applicants | Dr C. O’Brien | Waters Timms Pty Ltd | |
| For the New South Wales Native Title Services | Mr C.F. Thomson | Native Title Services | |
HIS HONOUR:
Before the Court is an application by Regina Rose, Lindsay Mobourne, Allan Carriage, Barbara Nicholson, Gwen Brown, Reuben Brown, Dot Mullett, Norman Hood, Frank Hood and Pauline Mullett, to set aside orders which I made on 3 February this year. Those Orders were as follows:
“1.Paragraph 3 of the orders made by the Honourable Mr Justice Ashley on 27 February 2003 be vacated.
2.Any tax liabilities or charges which are due and payable on the funds held in Court in account No 19213-3 be paid by the Senior Master prior to the payments referred to in the following orders.
3.The Senior Master pay out of the funds held in Court in account No 19213-3 the sum of $604,000.00 to the Nyarmin Scholarship Trust bank account within five business days of receiving the details of that account from New South Wales Native Title Services Ltd.
4.The Senior Master pay the remainder of the funds held in Court in account No 19213-3, including any accrued interest, to the Nyarmin Discretionary Trust bank account within five business days of receiving the details of that account from New South Wales Native Title Services Ltd.”
The Orders in substance amended paragraph 3 of Orders which I made on 27 February 2003. Paragraphs 1-3 of those Orders were as follows:
“1. The Plaintiffs within 21 days of this Order cause to be paid the amount of $4,300,357.72, which is the balance as at the date of this Order of an account in the name of Duke Energy Australia Pty Ltd in the Westpac bank account number 0022370001 named ‘Duke Energy Australia Pty Ltd – Nyarmin Trust A/C’ (‘Duke Trust Account’) plus any accrued interest to the Senior Master for the benefit of a Trust, yet to be created, named the Nyarmin Trust.
2.Subject to paragraph 4 hereof, and to any further order, the Senior Master invest the amount paid into Court under paragraph 1 hereof for the benefit of the said Trust.
3.The Senior Master pay out of Court to the Nyarmin Trust, when he is satisfied that the same has been constituted, the amount referred to in paragraph 2 hereof together with any interest accrued thereon, less any amounts disbursed pursuant to paragraph 4 hereof.
4.The Senior Master disburse to the plaintiffs, from the amount paid into Court pursuant to paragraph 1 hereof and any interest accrued thereon:
(a)upon written application to the Senior Master, the amount of any income tax or other tax that is shown to the satisfaction of the Senior Master to have been paid or assessed to be payable with respect to the money held in the Duke Trust Account;
(b)upon written application to the Senior Master, the reasonable costs and expenses that the Senior Master is satisfied have been incurred by one or other of the Plaintiffs or an associated company in establishing and administering the Duke Trust Account; and
(c)on an indemnity basis, costs of and incidental to this proceeding upon presentation of a bill of costs to the Senior Master, he being satisfied of the propriety of the costs claimed; and in the event that he is not so satisfied, then the amount of costs as thereafter taxed.”
The application is brought reliant upon the inherent jurisdiction of the Court and also in reliance upon Rule 46.08 (b) of Chapter 1.
The application is opposed. The Contradictors are New South Wales Native Title Services Ltd and Nyarmin Aboriginal Corporation. The secondnamed is an incorporated Aboriginal Association under the Aboriginal Councils and Associations Act 1976 Commonwealth. No point was taken as to the propriety of either body being named as a contradictor.
The application was commenced by Summons filed 5 April this year. The applicants then were Mrs Rose and Mr Mobourne. Relief was sought on the grounds that
"the orders[1] were applied for without notice to interested persons and were irregular."
[1]That is, made on 3 February 2004.
When the application was amended, pursuant to leave, by way of an Amended Summons dated 24 September but filed 20 October ("the Amended Summons"), another eight applicants were added. Each of the applicants was specifically identified as a person affected and not put on notice of the February 2004 application. No additional grounds of relief were specified.
Also before the Court is a Summons filed 28 April this year on behalf of New South Wales Native Title Services Ltd and Native Title Services Victoria Ltd by which application is made to strike out the Summons earlier filed on behalf of Mrs Rose and Mr Mobourne as being frivolous, vexatious and an abuse of process. Native Title Services Victoria Ltd had been named as a respondent to the Summons filed on 5 April. Yesterday, there was no opposition by counsel for those applicants to my ordering that it be removed as a Contradictor, and I so order.
The strike-out application, although it was briefly addressed by counsel for New South Wales Native Title Services and Nyarmin Aboriginal Corporation, assumed very much a subsidiary position. What was argued yesterday were the merits or otherwise of the application made by the Amended Summons.
The Court has a jurisdiction to set aside its orders. Inherent jurisdiction aside, by Rule 46.08(b) it may set aside an order which affects a person where the application for the order was not made on notice to that person.
The Court's power is discretionary. It might be exercised if there was irregularity in obtaining the order complained of. Particularly in the case of an ex parte application in the ordinary sense - with an opposing party named - irregularity might be constituted, for example, by a failure to properly appraise the Court of all material facts. On the other hand, provided that the party making application is given an adequate opportunity to be heard as to the merits of the matter in connection with the impugned orders were made, the Court should not be expected to exercise its discretion to set aside those orders if the applicant's position is shown to lack merit.
Much of the background necessary to understand this application is set out in my two earlier judgments in this matter. On 27 February 2003[2] I explained why I made orders for payment of certain moneys into Court; and for their disposition[3].
[2][2003] VSC 54.
[3]See paragraphs [1], [2], [6], [7]. See also [13] by which I reserved liberty to apply.
Then, in Reasons which I gave on 3 February this year, I explained why I should vary the Orders which I had earlier made. The reason was a simple one. My original Orders had provided that the Senior Master pay out the moneys then in Court to the Nyarmin Trust when he was satisfied that the same had been constituted. But acting on advice, and it was said consistently with the Native Title Consent Agreements entered into in 1997, two Trusts had been established, not one. The Senior Master was not authorised by my earlier Orders to pay the moneys in Court to the benefit of two Trusts rather than one.
Further, being satisfied that the application was in substance being made on behalf of all the pertinent Aboriginal groups,[4] that all the groups that agreed in the formation and terms of the trusts, and that the proposed trustee, Nyarmin Aboriginal Corporation, was able to be representative of those groups and was sensibly to be the trustee of the two trusts,[5] I made Orders for the disposition of the money specifically into bank accounts in the names of the two Trusts.
[4]See [6].
[5]See [8].
According to the submissions made yesterday by applicants' counsel, the Orders made on 3 February this year were irregular because not all matters relevant to the Court's decision were brought to its attention. Thus:
·No meeting of the original signatories to the Native Title Consent Agreement(s) (conveniently "the Agreement") had been called subsequent to the payment of the moneys into Court.
·That was in breach of Clause 10.1 of the Agreement.
·The process of calling meetings deposed to by Ms Barbara Guthrie in her affidavit affirmed 28 January 20004 in support of the application made on 3 February this year was not a process authorised by the Agreement.
·It followed that decisions made at the Cooma meeting were not authorised as required by the Agreement.
·The Court was not told that the original signatories to the Agreement had concerns about the Trusts and the Trustee:
oThat the original signatories had been shut out of involvement with the purported authorisation process and with the trustee.
oThat the trustee was large and cumbersome. Counsel made particular reference to the size of the quorum and its necessary make-up. See Clause 15.13 of the rules of the Nyarmin Aboriginal Corporation.[6]
oThat the Trusts did not make provision, as Clause 9.1 of the Agreement required, for Aboriginal people who were not Native Title claimants but were nonetheless affected by the pipeline.
oThat the tax consequences of a discretionary trust structure had not been adequately considered.
[6]Exhibit BG10 to Ms Guthrie's affidavit affirmed 28 January 2004.
Further according to counsel's submissions, the Orders made on 3 February were liable to be set aside because the original signatories to the Agreement had not been notified of the application which led to those Orders being made; and the circumstances otherwise called for a favourable exercise of the Court's discretion.
It is convenient to deal immediately with a want of notice submission. As I noted in my Reasons given 27 February 2003,[7] agreements were made between Energy Gas Pipeline Pty Ltd ("EGP") and a number of Aboriginal clans or peoples (conveniently "clans") which had made Native Title claims over land along the route of the then proposed pipeline. The Aboriginal clans and the signatories in respect of each of them were respectively:
[7][1] and Footnote 2.
· Wadi-Wadi: Alan Carriage;
· Dharawal: Gwen Brown and two persons since deceased;
· Monero/Ngarigo: Rae Stewart;
· Ngunnawal: Nurri Arnold Williams;
· Jerrinja: Nancy Campbell and two persons since deceased;
· Bidawal: Rachel Mullett;
· Gunai/Kurnai: Russell Mullett, Regina Rose, Leslie Thorpe, Collon Mullett, Roderick Mullett, Robert Farnham, Wilfred Carter, Wayne Hood, Lindsay Mobourne, Ray Thomas and one person since deceased.[8]
[8]There is possibly a second deceased person.
The 1997 Agreement was necessarily made by EGP (or the joint venturers which established it as the pipeline contractor) with Native Title claimants. The fact that that Native Title claims had been made gave EGP persons with whom it could conclude agreements. The relevant legislation enabled the creation of deemed contracts. But whilst the claimants were individuals, they were claimants on behalf of particulars Aboriginal clans. So for example, Mrs Rose signed as "a registered Native Title claimant on behalf of the Gunai-Kurnai people."
It appears that with one exception none of the Native Title claims is extant. None has been the subject of the favourable determination. The extant claim is that brought on behalf of the Gunai/Kurnai people.[9] That claim has not advanced very far, as I understand it, since 1997. There has been disputation as to who should properly pursue the claim. Mrs Rose and Mr Mobourne have been involved and continue to be involved in that disputation.
[9]Perhaps there is now more than one claim.
The fact that all but one of the Native Title claims extant in 1997 is no longer extant, and that in the case of the extant claim there is disputation as to the identity of the persons who should properly pursue it, does not mean that the class of persons described as, for instance, "the Dharawal people" is uncertain. Neither counsel submitted before me yesterday that there was any such uncertainty, notwithstanding that it is apparent that individuals may differ in their opinions whether a person is or is not a member of a particular clan; and whilst the material suggests that a person may have more than one clan association.
Each of the 21 signatories to whom I referred a little earlier was a Native Title claimant on behalf of one of the seven clans. Those 21 signatories did not, on the face of the documents, include Mr Reuben Brown - despite his assertion to the contrary.
Of the 15 or 16 signatories still alive, only four - that is, Mrs Rose, Mr Mobourne, Mr Carriage and Mrs Brown - seek to have the Orders made on 3 February this year set aside. According to counsel's submission, and despite the form of the Amended Summons, those four were the relevant persons affected, persons who should have been put on notice of the February 2004 application.
The four persons to whom I just referred were not put on notice of the February 2004 application in the sense that none of them was told that the application would be made that day. The situation may be contrasted with that which pertained to the first application that I heard in this matter.
In respect of that application Beach J ordered, on 5 December 2002, that each of the signatories to the Agreement be served. Save for those who had died, each signatory was served, and on 27 February 2003, a few signatories - notably Mrs Rose, Mr Mobourne and Mrs Brown - appeared by counsel.
The reasons why Beach J ordered that the signatories be served with notice of the February 2003 application were clear enough. There was disputation whether the successors to EGP should pay the money into Court; whether it should remain in the bank account which EGP's successors has established in the name of the then non-existent Trust on the footing that it would not be long before the Trust was constituted; or whether again, it should be paid into a bank account established by New South Wales Native Title Services Ltd and Mirimbiak Nations Aboriginal Corporation[10] to be held in Trust pending creation of the Nyarmin Trust.
[10]The latter was the predecessor, in substance, to Native Title Services Victoria Ltd.
The situation when the matter came before me in February 2004 was very different. First, there had been a series of meetings in the period November 2002 to January 2003 involving persons who identified themselves as members of the seven Aboriginal clans. The purpose of those meetings had been to appraise attendees of plans to establish the Nyarmin Trust and the Nyarmin Aboriginal Corporation. The meetings were apparently well attended. It is notable that a number of the signatories attended such meetings[11]. Presumably they provided the reason why New South Wales Native Title Services and its Victorian counterpart expressed some confidence in February 2003 that the Nyarmin Trust was on the cusp of being realised.
[11]Exhibit A, document 27: Rae Stewart, Rachel Mullett; document 25: Rachel Mullett; document 21: Gwen Brown; document 20: Arnold Williams.
Second, following upon those meetings the Victorian representative body had sent a report on consultations to all Gunai/Kurnai Native Title claimants.[12] The explanation of the proposed trust deed was extensive. The main difference in the scheme then proposed and that which was ultimately adopted was that a single trust was then proposed. The list of persons to whom the report was sent included all, or all but one, of the Gunai/Kurnai signatories - in particular, for present purposes, Mrs Rose and Mr Mobourne; and also Ms Pauline Mullett, an added applicant in the Amended Summons.
[12]Exhibit A, document 19, a report on consultations.
The report foreshadowed the holding of a final meeting, at which all would be welcome to attend, but in respect of the attendance of whom the travelling expenses of four persons only from each clan could be funded.
Third, a report, in substantially the same terms, had been sent by New South Wales Native Title Services to persons from the New South Wales clans who had attended the meetings.[13] It is very likely that Reuben and Gwen Brown were sent a copy of this document. They certainly received a letter dated 4 April 2003[14] which New South Wales Native Title Services appears to have sent the same addressees.[15]
[13]Exhibit A, document 18.
[14]Exhibit A, document 16.
[15]See Exhibit A, document 11, letter 16 April 2003 page 1.
Fourth, New South Wales Native Title Services had sent a letter of invitation to the Cooma meeting to, it appears, persons from the New South Wales clans who had attended earlier meetings.[16] The letter identified the representatives nominated by the New South Wales clans whose travel and accommodation costs would be assisted. Again, it stated that everyone was welcome to attend.
[16]Exhibit A, document 16.
Fifth, Mirimbiak had sent a letter of invitation to all Gunai/Kurnai and Bidawal Native Title claimants concerning the Cooma meeting.[17] Its substance was no different to the letter sent out by New South Wales Native Title Services, but its circulation was probably wider - being not restricted to persons who had attended a meeting in the period between November 2002 and January 2003, but rather including addressees listed in Exhibit A, document 19.
[17]Exhibit A, document 15.
Sixth, the meeting held at Cooma on 29 April 2003 had been attended by some 40 Aboriginal persons. They included a number of the persons whom the clan meetings had nominated as clan representatives.
Seventh, neither Mrs Rose nor Mr Mobourne had attended the Cooma meeting. Neither of them had been nominated as a clan representative. Neither had attended the meeting of Gunai/Kurnai and Bidawal Native Title claimants at which seven, not four, representatives had been elected.[18] But their counsel did not suggest that they did not know about the Cooma meeting in advance. It is, I consider, certain that they did know about it. Documents to which I have referred in these Reasons show why that must be so. Further, in her affidavit affirmed 22 March this year, Mrs Rose asserted that she, Mr Mobourne and their "delegate" Pauline Mullett had continued to voice their concerns about the handling of the Nyarmin Trust issue,
"In a number of public fora including the Cooma meeting held on 29 April 2003."
Ms Pauline Mullett was an attendee at the Cooma meeting.
[18]Exhibit A, document 25, meeting held 30 November 2002.
Eighth, Mr Alan Carriage had not attended the Cooma meeting. He had advised he was ill and unable to do so. His son, Mr Dennis Carriage, was an appointed Wadi-Wadi/Dharawal clan representative.[19] Dennis Carriage had signed a form to become a member of Nyarmin Aboriginal Corporation when it was constituted.[20] He did not attend the Cooma meeting only because, on his account, his car had broken down.
[19]Exhibit A, document 16, page 1.
[20]Exhibit A, document 10.
Ninth, neither Reuben nor Gwen Brown had attended the Cooma meeting. Neither had been appointed a clan representative for that meeting. But they certainly knew that the meeting was to be held. So much is evident from an exchange of correspondence between solicitors then acting for Mrs Brown and New South Wales Native Title Services.[21] A major bone of contention was the inability of New South Wales Native Title Services to fund Mrs Brown's travel and accommodation costs. A faxed letter from her solicitors dated 28 April mentioned that she did not own or have access to a roadworthy car.
[21]Exhibit A, document 11.
Tenth, even after the Cooma meeting, the correspondence shows, New South Wales Native Title Services had encouraged Mrs Brown and a son of one of the deceased signatories to apply for membership of Nyarmin Aboriginal Corporation.[22] This also should be noted: the solicitors for Mrs Brown and the other person to whom I referred a moment ago - a Mr Gordon Albert Wellington - had indicated by their faxed letter of 28 April that their clients were
"interested in being nominated and appointed as members of a governing committee of any trustee corporation that might be established at the meeting."[23]
[22]Exhibit A, document 11, letter 16 May 2003.
[23]Exhibit A document 11 faxed letter 28 April 2003
Eleventh, attendees at the Cooma meeting had resolved to proceed by constituting Nyarmin Aboriginal Corporation and two trusts. The relevant resolution was passed by a large majority. Four people voted against it. Pauline Mullett, "delegate" of Mrs Rose and Mr Mobourne, was not, according to the minutes, one of the four.
Twelfth, the minutes of the Cooma meeting, and annexures,[24] suggest that the proposal was adequately explained in simple language to the attendees. Evidently the role of the signatories to the Agreement was raised at the meeting. The chairman explained, according to the Minutes, that
"The parties to the agreement had signed on behalf of their groups. Accordingly, the critical issue [was] consensus from the groups the about the proposals."
[24]Exhibit A, document 9.
Thirteenth, on 12 May 2003, a meeting had been held of Gunai/Kurnai Native Title claimants. Pertinently for present purposes, Mrs Rose and Mrs Dot Mullett had attended that meeting. The Trust(s) were discussed. There was nothing in the minutes[25] to suggest that either of them expressed concern about the manner in which the Trusts or Nyarmin Aboriginal Corporation were to be constituted.
[25]Exhibit A, document 8.
Fourteenth, by letter of 16 May 2003[26] Mirimbiak had written to all Gunai/Kurnai and Bidawal claimants reporting upon the Cooma meeting, enclosing a membership form for Nyarmin Aboriginal Corporation, and encouraging applications for membership. The letter also said this:
"The Cooma meeting has instructed us to make an application to the Supreme Court of Victoria to release the EGP moneys to the Nyarmin Aboriginal Corporation as soon as it is incorporated. In the meantime, New South Wales Native Title Services will finalise the establishment of the two Trusts and set up a bank account for the corporation."
[26]Exhibit A, document 7.
The list of addressees included many of the original signatories. It included Mrs Rose, Mr Mobourne and their "delegate," Ms Pauline Mullett.
I should mention also that the letter invited anyone who wanted to have a copy of the minutes of the Cooma meeting to make a request to Mirimbiak for the same. There is no evidence that any of Mrs Rose, Mr Mobourne, Mrs Dot Mullett or Ms Pauline Mullett made any such request.
Fifteenth, on 30 May 2003, application had been made to the Registrar of Aboriginal Corporations for registration of Nyarmin Aboriginal Corporation. At that stage there were some 150 applications for membership of the Corporation.
Sixteenth, there is nothing to suggest that in the period between the Cooma meeting and the application which I heard on 3 February this year any of Mrs Rose, Mr Mobourne, Mr Alan Carriage or Mrs Gwen Brown communicated with New South Wales Native Title Services or its Victorian equivalent any exception to the scheme, the implementation of which had been approved by the Cooma meeting. The affidavits of Mrs Rose affirmed 22 March 2004, Mr Brown affirmed 21 June 2004, Mrs Brown affirmed 19 June 2004 and Mr Carriage affirmed 10 May 2004 are non-contributory. Mr Carriage in paragraph 8 of his affidavit deposes that he wrote to the "Registrar of the Supreme Court of Victoria on 29 June 2003 objecting to the establishment of the Nyarmin Aboriginal Corporation." He did not exhibit a copy of that letter and the original has not been produced.
In all, I consider that New South Wales Native Title Services and specifically Ms Guthrie was entitled to believe that the clans had authorised the framework which made necessary the application that I heard on 3 February this year; and that the application was made, in substance, on behalf of the members of the clans. Where none of the four signatories of the Agreement who now claim that they were persons affected and that they should have been given notice of the hearing had, so far as the evidence discloses it, made any objection to the framework between April 2003 and February 2004, I doubt that there was reason why they should have been given notice of the February hearing.
Suppose, however, that the four persons now under discussion should have been given notice of that hearing. I doubt that could be said of the other applicants, none of whom was a signatory of the original Agreement, and none of whom, so far as the evidence reveals the situation, had any communication with New South Wales Native Title Services or its Victorian equivalent after the Cooma meeting as would indicate dissatisfaction with the scheme which was there approved.
In any event, suppose that Mrs Rose, Mr Mobourne, Mr Carriage and Mrs Brown should have been given notice. Where lie the merits? I turn to the alleged failure of counsel on 3 February 2004 to bring all relevant matters to my attention, this constituting an irregularity.
First, in my opinion there is nothing to the complaint that there was no meeting of the signatories after moneys were paid into Court. It would have been an impossibility in any event. Some were dead, apparently others were old, some could not afford travel costs. But why should any such meeting have been held rather than consultative meetings with the clans on behalf of whom the signatories had raised Native Title claims- most of which claims had since fallen by the wayside? Counsel for the applicants suggested that this was required by Clause 10.1 of the Agreement. But I do not agree.
Second, I consider that there is nothing to the complaint that the process of calling meetings to which Ms Guthrie deposed in her affidavit affirmed 28 January this year was not a process authorised by the Agreement. The Agreement provided for payments into the Trust - which was described as if it then existed; and for use of some of the funds by the Trust Board as a Scholarship fund. It also provided that certain Aboriginal people other than Native Title claimants should be able to obtain benefits from the trust. But it was silent as to the mechanism whereby the Trust would be constituted-understandably, for it proceeded on the footing that the Trust already existed- and as to the means, inter alia, whereby the objectives of the Scholarship fund and access by non-Native Title claimants were to be achieved. Those issues were, I consider, left for determination by the Native Title holders on whose behalf the signatories had raised Native Title claims. It was not to the point that it was for the claimants to pursue the Native Title claims.
Moreover, as I have already pointed out, almost all the claims fell by the wayside. Whatever status a signatory might have had when a claim was extant could hardly survive its disappearance.
Again, the procedure which was followed by calling and holding meetings and reporting their outcome was essentially democratic. It is crystal clear that Mrs Rose, Mr Mobourne and Mr and Mrs Brown had notice of, and attended meetings; and received reports. To the extent that they did not attend the Cooma meeting, likewise Mr Carriage, it was for reasons other than that they were excluded. To the contrary, there is much indication that their involvement was sought both before and after the Cooma meeting.
Third, it was suggested in argument, and to an extent in the affidavits of Mrs Rose, Mr and Mrs Brown and Mr Carriage, that persons who attended the Cooma meeting - at least so far as they concerned the Gunai/Kurnai, Wadi-Wadi and Dharawal clans - were not truly representative of the clans.[27] That is an allegation easily raised, and in the present case it appears to have been raised belatedly by persons who were either in the minority at meetings which they attended, or who were unable to attend meetings for one reason or another. It seems to me, however, that the process whereby generally well-attended meetings appointed representatives to the Cooma meeting, together with the opportunity for persons such as Mrs Rose, Mr Mobourne, Mr Carriage and Mr and Mrs Brown to attend that meeting and contribute to its deliberations, gives no ground for valid complaint.
[27]See paragraphs 36 and 37 of Mrs Rose's affidavit; paragraph 6 and 11 of Mr Carriage's affidavit, and paragraphs 22-24 of Mr Brown's affidavit.
Fourth, concerning the submission that the Court was not told on 3 February, and should have been told, that original signatories had raised complaints that the Trusts were not wholly charitable trusts, the short point is that no such complaints were raised before 3 February 2004. They have been raised, initially by the applicants’ solicitor, in affidavits recently sworn.
So far as it might be relevant to consider whether the Trusts as constituted contravene something said about them in the Agreement, in my opinion there is no such contravention. The Agreement certainly contemplated that part of the Trust moneys be devoted the charitable purposes. The Nyarmin Scholarship Trust is appropriate in that connection. Otherwise the Agreement did not require that the Trust be one for charitable purposes. Recital D, dot point 3, arguably suggests the contrary. Assuming the correctness of the submission made for the applicants that charitable purposes may have a wide application, particularly in connection with trusts for Aboriginal advancement, it is perhaps possible that the Nyarmin Discretionary Trust could have been structured as a charitable trust, with the tax advantages that would imply. But that is speculative, and it does not require a conclusion that the Agreement required that the Nyarmin Trust be entirely one for charitable purposes.
Fifth, I go to the contention that the Court should have been told that the trustee corporation was large and cumbersome. I do not agree that the Court should have been told any such thing. As at the present time there are some 700 members of Nyarmin Aboriginal Corporation. The minutes of its first general meeting, held at Jindabyne on 3 April this year, reveal that some 200 indigenous persons attended. To provide for a quorum of 40 persons, including representation by at least five members of four clans, does not seem to me to be at all excessive.
Sixth, counsel for the applicants submitted that the Court should have been told on 3 February that the original signatories had been shut out of involvement with the purported authorisation process and with the trustee. In my opinion the Court should not have been told any such thing, because it would not have reflected the truth of the situation. Documents to which I have referred strongly deny any pattern of exclusion. Paragraph 6 twice appearing of Mr Carriage's affidavit does not tell to the contrary. Neither does paragraph 22 of Mr Brown's affidavit. It may be that those men were intending to refer to their being unable to become founding members of Nyarmin Aboriginal Corporation. That was a function of time.
Seventh, Counsel for the applicants submitted, as I have noted, that the Trust did not make provision for non-Native Title claimants as Clause 9.1 of the Agreement required. No provision at all was made for such persons in the Discretionary Trust Deed; and in the case of the Scholarship Trust provision was made, but with a geographical limitation.
I think there was nothing to the second point. I accept the submission of counsel for the contradictors that the geographical limitation gives certainty where otherwise it would arguably be lacking; and at the same time meets the substantial objective of Clause 9.1 of the Agreement.
The first point is more doubtful. But on balance I think that counsel for the applicants was correct in his submission that provision for non-Native Title claimants was to focus on the sporting, cultural and academic scholarships mentioned in the Agreement.
Eighth, I consider that there was nothing to counsel's submission that the Court was not informed of all relevant matters on 3 February this year because it was not told that the tax consequences of a discretionary trust structure had not been adequately considered. Those who devised the structure of the trusts recognised the different tax treatment of charitable and other trusts. That is why the Nyarmin Scholarship Trust was separately constituted. The constitution of the Discretionary Trust did not reflect a want of investigation or understanding of the tax advantages of charitable trusts.
In the event, I consider that there was no failure to inform the Court on 3 February of relevant matters. There was, then, no irregularity.
There are other matters to which I should briefly refer. First, the Agreement was signed by signatories on behalf of seven Native Title claimant clans. The Trusts, however, identify six rather than seven clans, treating Wadi-Wadi and Dharawal as a single entity for the purposes of the Trusts. The explanation is this: According to the evidence, the two clans lodged Native Title claims over the same geographical area. For that reason, and because distribution of trust income and capital in alternate years focuses on the distance travelled by the pipeline through particular areas, the joinder of Wadi-Wadi and Dharawal is explained. I note finally in this connection that no point was raised by counsel for the applicants.
Second, it is an outstanding feature of what has transpired since February 2003 that of the many hundreds of people who have joined Nyarmin Aboriginal Corporation, and of the many people who participated in meetings, only a handful have complained about the Orders made on 3 February.
Third, complaint was belatedly made. It was made only after a large amount of irreplaceable money had been spent on implementing the scheme approved at the Cooma meeting.
Fourth, complaint was made in circumstances where, but for the fact that there were two Trusts constituted rather than one, there never would have been an application to the Court in February 2004. Had a single trust been constituted, the Senior Master was authorised by my order of February 2003 to pay the moneys out forthwith.
Fifth, a very belated proposal was made on behalf of the applicants to revisit what had occurred, with a view to devising some different structure for the trusts. Not only was the proposal very belated, in my opinion it was unsatisfactory in other respects. It appears to have contemplated the use of intermediaries who were much aligned with the interests of the applicants.
The merits of the matter then, in my opinion, lie strongly against the applicants. Quite apart from the question whether they ought to have been given notice of the February 2004 application, they have not made out their claim that the Orders made on 3 February should be set aside. Their Summons as amended should be dismissed. So far as the strike-out application is concerned, it need not be separately addressed. I should simply order that it be struck out.
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