Gentle v Fiduciary Administration Services Pty Ltd

[2021] WASC 317

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GENTLE -v- FIDUCIARY ADMINISTRATION SERVICES PTY LTD [2021] WASC 317

CORAM:   MASTER SANDERSON

HEARD:   13 SEPTEMBER 2021

DELIVERED          :   13 SEPTEMBER 2021

PUBLISHED           :   17 SEPTEMBER 2021

FILE NO/S:   CIV 1459 of 2021

BETWEEN:   LEONIE RUTH GENTLE

Plaintiff

AND

FIDUCIARY ADMINISTRATION SERVICES PTY LTD

First Defendant

ATTORNEY GENERAL OF WESTERN AUSTRALIA

Second Defendant

Catchwords:

Native Title Act - Whether Trust Advisory Committee validly appointed - Turns on own facts

Legislation:

Native Title Act 1993 (Cth)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	G M G McIntyre SC
First Defendant	:	G D Cobby SC
Second Defendant	:	A J Sefton SC

Solicitors:

Plaintiff	:	Forbes Kirby
First Defendant	:	Chris Stokes & Associates
Second Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

1. By originating summons filed 31 May 2021, the plaintiff sought relevantly the following orders:

   a.It be declared that the Trust Advisory Committee (TAC) members of the Yugunga-Nya Peoples Trust (Trust) as elected on 20 and 22 August 2020, were invalidly appointed by reason of persons being ineligible to vote, such persons not being Yugunga-Nya People as defined in the Trust Deed established 26 May 2004, having voted for their election to the TAC.

   b.In consequence of order (a), it be declared that the Deed of Variation to the Yugunga-Nya Peoples Trust dated 4 December 2020, which purported to vary the Trust Deed dated 26 May 2004 that established the Yugunga-Nya Peoples Trust, is void ab initio, invalid and of no effect.

2. The application is supported by an affidavit of the plaintiff sworn 28 May 2021.  That affidavit sets out the relevant facts.  However, a clearer statement of those facts is set out in the affidavit of Philip Eric Williams sworn 16 July 2021.  Mr Williams is the managing director of the first defendant (there is a misprint in par 1 of the affidavit). Mr Williams confirms the first defendant (FAS) is the trustee of the Yugunga-Nya Peoples Trust Pty Ltd (the Trust).  He also confirms that the Trust was established by a Trust Deed dated 26 May 2004.  In pars 7 through to 13 of his affidavit, he details the history of the trust and specifies who, from time to time, was the trustee of the Trust. He also confirms that the Trust Deed was varied by a Deed of Variation dated 4 December 2020.  The result of that variation is that the original Trust Deed was replaced by the amended and restated trust deed.  It is that Deed of Variation which is attacked by the plaintiff.  At pars 14 through to 48, Mr Williams sets out a clear and concise statement of how this matter has progressed.  I can do no better than repeat what was  said by Mr Williams.  (I have omitted references to the various exhibits)

   Operation of the Trust by FAS

   14.FAS is a company which was specifically set up to administer indigenous charitable trusts.

   15.Administration of the Trust is carried out at two offices, one at Level 13, 37 St George's Terrace Perth and the other at 264 Foreshore Drive, The New Marina Geraldton.

   16.Following its appointment as trustee of the Trust FAS has:

   (a)received from ISPL Y-N Pty Ltd and Parkers BCA (an accounting firm engaged by ISPL Y-N Pty Ltd to do the accounting work of the Trust) a number of files, correspondence and financial records in respect of the Trust;

   (b)received the monies held by ISPL Y-N Pty Ltd on behalf of the Trust apart from some nominal sums;

   (c)effected the transfer and registration into its name of a number of properties at Meekatharra and Geraldton that are the property of the Trust;

   (d)effected the transfer in the shareholding of Yugunga Nya People Pty Ltd, which was a company set up to carry on a joint venture to lease mining equipment;

   (e)sorted out various issues in relation to the Trust including the previous trustee' s employment of a number of persons and its lease of premises at 11 Lyall Street South Perth;

   (f)commenced dealing with various legacy issues arising from the conduct of previous trustees of the Trust.

   The Yugunga-Nya Native Title Application

   17.I am informed by Mr Franklin Gaffney of PBC Legal & Consultancy Services and the WA Agent for Mr Sam Hegney - solicitor on record for the Yugunga-Nya Applicant, and I believe to be true and correct the information concerning the Yugunga-Nya Native Title Application as set out in paragraphs 18 to 39 below.

   18.The Yugunga-Nya native title claim was filed in the Federal Court in 1998 and was Federal Court action numbered WAD 6132 of 1998.

   19.The Yugunga-Nya application was made pursuant to s 61 of the Native Title Act 1993 (Cth) on 29 October 1999. The Yugunga-Nya application encompassed five previously filed polygon applications. On 1 November 1999 'notices of motion' were made to combine the five polygon applications and the newly filed application into one inclusive application.

   20.The claim group description in that claim was :

   "I, Evelyn Gilla, William Shay, Name withheld for cultural reasons and Name withheld for cultural reasons:

   2.     The biological descendants of 'Wilba' (The Grandmother of Evelyn Gilla)."

   ('the Original Claim Group Description')

   21.The Applicants as at December 2014 were Evelyn Gilla, William (Bill) Shay, Russell Little, Leonie Gentle, Audrey Shar, and Troy Little.

   22.'Native title claim group', for a native title determination application, is all persons who, according to their traditional laws and customs, hold common or groups rights and interests comprising the particular native title claimed.

   23.The Previous Native Title Claim had not progressed for a number of years due to apparent differences within the claim group itself.

   24.On 5 December 2018 the matter came on for a case management conference before Justice Barker to determine what case management orders ought be made.  In his brief reasons for decision he noted that until the claimants provided the connection material to the State the matter could not be progressed.

   25.On 14 January 2019 Registrar Sodden ordered that a related electronic court file proceeding be created as of 16 January 2019, which was numbered WAD 29 of 2019.  It had the same named parties as the existing Federal Court action.

   26.Mr Franklyn Gaffney has advised me and I believe that he engaged Mr Kim McCaul, a consulting anthropologist originally engaged by Yamatji Marlpa Aboriginal Corporation, to carry out the necessary connexion report to establish the Applicant's native title claim.  One of the questions Mr McCaul was asked to consider in his brief was to identify any persons who hold communal, group or individual rights comprising native title in any part of the claim area.

   27.Mr Kim McCaul concluded that the best current evidence was that the native title claim group for the Yugunga-Nya claim was that group of persons described by the "proposed amended claim group description" as follows:

   "Those Aboriginal People who:

   ·Under the traditional laws and customs of the Western Desert, have a spiritual connexion to the claim area and the Tjukurpa associated with it on the basis of one or more of the following:

   (i)the claim area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

   (iii)    he or she has traditional geographical and religious knowledge of the claim area through a long term association with the area,·or

   (iii)he or she has an affiliation to the claim area thr ough a parent or grandparent with a connexion tot eh claim area as specified in sub­paragraphs (i) or (ii) above,

   and

   ·Who are recognised under the traditional laws and customs by the other native title holders as having rights in the claim area.

   This currently includes the descendants of Annie Wilba, Dolly Ward and Jimmy Wheelbarrow"

   ('the Amended Claim Group Description')

   28.A Yugunga-Nya Native Title Claim Native Title Information Sessions and Authorisation meeting was then held on 19 November 2019 at Meekatharra and 21 November 2019 at Perth ('the November Authorisation Meeting').

   29.I am advised by Franklyn Gaffney and believe that the November Authorisation Meeting, inter alia, endorsed the amendment to the claim group description and the appointment of the following applicants:

   Evelyn Gilla, William (Bill) Shay, Russell little, Leonie Gentle, Audrey Shar, Troy Little, Robyn Kelly, Elaine King, Nathaniel (Nathan) Bann, Leonard (Jeff) Barnard and Verna Vos.

   30.On 4 December 2019 Justice Mortimer made orders, inter alia, that:

   "1.Any application under s66B of the Native Title Act 1993 (Cth) to replace the current applicant, and for leave to rely on an amended native title application, together with any supporting material and written submissions, be filed and served by 4 pm on 18 December 2019.

   2.Subject to further order, any s 66B application and any proposed amended native title application that is filed will be determined on the papers."

   31.In December 2019 Mr McCaul's connection report was provided to the State of Western Australia, the First Respondent in the Yugunga-Nya application.  Following the removal of Verna Vos on 24 November 2020 (when she consented to her removal as a member of the Applicant) all the members of the replacement applicant were members of the native title claim group for the Yugunga-Nya claim, as defined by the proposed Amended Claim group description.

   32.On 24 February 2020 Justice Mortimer made orders, inter alia in the following terms:

   "1.Evelyn Gilla, William (Bill) Shay, Russell Little, Leonie Gentle, Audrey Shar, Troy Little, Robyn Kelly, Elaine King, Nathaniel (Nathan) Bann, Leonard (Jeff) Barnard and Verna Vos (the new applicant) replace the current applicant for the application.

   2.The new applicant have leave to file an amended application substantially in the form  contained in annexure 'SHE-5' to the affidavit of Selwyn Eric Hegney sworn 29 November 2019.

   3.The new applicant have leave to rely on the amended application filed in accordance with order 2.

   4.The parties are to progress the proceeding towards a possible consent determination in accordance with the timetable annexed to these orders."

   33.The filing of an amended native title determination application triggered the re­application of the registration test by the National Native Title Tribunal.

   34.The delegate of the Registrar made a decision on 7 August 2020 not to accept the amended application for registration.

   35.An application was then made on behalf of the Applicant for a reconsideration of the decision not to register the claim under the Native Title Act. The Member undertaking the reconsideration of the decision made a decision not to accept the claim for registration on 30 October 2020.

   36.The Member's decision did not affect the progress of the amended native title application in the Federal Court of Australia nor the negotiations with the State of Western Australia towards a consent determination.

   37.The decision not to accept the claim for registration had the effect of not entering the claim upon the register of native title claims, which, among other statutory benefits, denied the Applicant the benefit of the 'right to negotiate' in relation to future acts that may occur in the area covered by the application.

   Process for Determining and Adding Beneficiaries

   38.On the appointment of FAS as Trustee for the Trust, I was provided by Kathryn Bates of ISPL Y-N by email dated 12 July 2019 with a database of all persons who were considered to be Yugunga-Nya People by the previous trustee (Original Database).

   39.I was not in a position to make any independent assessment as to whether the persons on the Database met the criteria of being 'beneficiaries' within the meaning of that term under the Trust Deed and I was unaware if any such assessment had been made by the previous Trustees.  No records have been provided to FAS that have demonstrated any process for identifying persons who are Yugunga-Nya People.

   40.Persons on the Original Database included persons who are only Yugunga-Nya People because they are descended from the apical Dolly Ward notwithstanding that Dolly Ward was only included in the claim description following the November 2019 Authorisation meeting.

   41.In determining who is a beneficiary of the Trust, the Trust Deed, as varied, relevantly provides as follows:

   (a)Clause 1.1 provides:

   Beneficiaries has the meaning in sub-clause 3.1;

   Native Title Claim Group has the same meaning as under the Native Title Act 1993 (Cth);

   Yugunga Nya Claim means native title determination application WAG 6132/98 and any variation, or combination with any other native title determination application from time to time;

   Yugunga Nya People means Persons of Aboriginal Descent who are:

   (a)Unless until the current Yugunga-Nya Claim is amended, or there is an approved determination of native title for the Yugunga-Nya Claim all the members of the current native title claim group on whose behalf the Yugunga-Nya Claim is made;

   (b)In the event that the Yugunga-Nya Claim as amended, those members of the native title claim group on whose behalf the amended Yugung-Nya Claim is made; and

   (c)In the event that an approved determination of native title is made for the Yugunga-Nya Claim, those persons who are determined to be common law holders of native title for the Yugunga-Nya Claim

   Persons of Aboriginal Descent has the same meaning as in the Aboriginal Affairs Planning Authority Act 1972 (WA)

   (b)Clause 3.1 provides:

   3.1The Beneficiaries

   (a)     The Yugunga-Nya People

   (b)The spouses and children of Yugunga-Nya People who are not themselves Yugunga-Nya People;

   (c)Any Persons of Aboriginal Descent living (permanently or temporarily) in the Shire of Meekatharra or the Shire of Cue.

   (c)Clause 6 under the heading 'Powers or the Trustees' provides in part:

   6.1General Power

   Subject to this Deed, the purpose of giving effect to its powers and functions under this Deed, the Trustees shall have all the rights and liberties as would be available to the Trustees if the Trustee were carried out such functions and powers on their own behalf.

   6.2Specific Powers

   Subject to this Deed without limiting the Powers of the Trustees under subclause 6.1, the Trustees shall have the power to:

   (ii)distribute the Trust Fund according to this Deed or to retain and invest any of the Trust Fund in accordance with this Deed and any agreement between the Trustee and any other person

   6.3Trustees' Independence and Powers Conferred by Law

   (a)The Trustees shall have the ultimate decision-making power in all matters relating to the Trust.

   (b)The powers conferred on the Trustees under this Deed are in addition to powers otherwise conferred by law.

   6.4Determination of Questions

   (a)Subject to this Deed, the Trustees shall be solely entitled to determine all questions and matters of doubt which may arise in the course of the management, administration, and realisation of the Trust, but may take the advice or recommendations of the Advisory Committee into account in such determinations;

   (b)The determination of the Trustees shall be final and binding on the Beneficiaries.

   42.The process which I developed for adding a person to the Trust database as a beneficiary was to ask the applicant to fill out a form (Application).

   43.I then engaged Mr Kim McCaul as the consulting anthropologist engaged by the Applicant, to review each Application and advise me as to whether he considered the person to fall within the description of a Yugunga-Nya Person or not, based on his anthropological findings including genealogies and any other relevant material.

   44.I engaged Kim McCaul because he had drafted the Amended Claim Group Description and was in my view the best person to determine each Application.

   …

   46.Between 24 February 2020 and 20 April 2020 the Trustee received 319 Applications.  Mr McCaul caused a spreadsheet to be created with the name of the applicant and other relevant information.  Mr McCaul advised me, and I believe, that he has then reviewed the Applications and the spreadsheet, and identified, on the spreadsheet, those applicants who he has considered to be a Yugunga-Nya Person or not. Of the 319 applications, he concluded 49 applications to be successful.

   47.Once I read Mr McCall's determination I caused the names of those applicants who he considered to be a Yugunga-Nya Person to be entered onto the Original Database.

   48.I then used the Updated Database to determine who was a beneficiary of the Trust and entitled to vote on the election of the Advisory Committee at the community meeting held at two locations (Perth and Meekatharra) on 20 and 22 August 2020.  I handed the Updated Database list to Mr Phil Richards of the WA Electoral Commission.

3. When looking at the relevant facts, it is necessary to bear in mind the nature of the plaintiff's complaint.  She says that TAC members elected on 20 and 22 August 2020 were invalidly appointed because they were not eligible to vote.  She says they were not eligible to vote because they were not Yugunga-Nya People as defined in the Trust Deed.  So the real question then is this. Did anyone vote at the election of TAC who was not a person eligible to vote under the terms of the Trust Deed.

4. Based upon the thorough explanation of the process used by Mr Williams to determine who fell within the definition of the Yugunga-Nya People, it is difficult to see how the plaintiff can make good her complaint. It is convenient then to consider the plaintiff's evidence.

5. In par 22 of her affidavit, the plaintiff lists the names of the 11 persons who were elected to the TAC on 20 and 22 August 2020.  The essential thrust of her argument is then found in pars 23 and 24 of her affidavit.  They word as follows:

   23.Seven (7) of the above persons elected to the TAC were not members of the original Native Title claim group.  They only became members because of the 2019 Authorisation Meetings.

   24.Given the NNTT has decided that the change to the claim group description and the addition of new Applicants to the Native Title Claim was not done properly, I am concerned that those members of the TAC who were only added to the claim group as a result of the 2019 Authorisation Meetings have no right to be TAC Members.  I believe this because the Trust Deed executed in 2004 says that only Yugunga-Nya People can attend and vote at the community meetings held annually to appoint a TAC.

6. It is to be noted that as yet there has been no approved determination of native title in respect of the Yugunga-Nya claim. It follows for the purposes of the Trust Deed that the Yugunga-Nya People are the persons identified by para (b) of the definition of that term in cl 1.1 of the Trust Deed - that is 'those members of the Native Title Claim Group on whose behalf the amended Yugunga-Nya claim is made'. Section 253 of the Native Title Act defines the term 'Native Title Claim Group' to mean, in relation to a claim in an application for determination of native title made in the Federal Court, the Native Title Group mentioned in relation to the application in the table in s 61(1) of the Native Title Act.[1]

   [1] Native Title Act 1993 (Cth) s 253.

7. The beneficiaries of the Trust are therefore, the persons named in the Federal Court orders as the applicant, (which include the plaintiff) together with the class of persons identified as the Native Title Claim Group, in the Amended Form 1 Native Title Determination Application filed in the Federal Court.  That is aboriginal people who:

   1.under the traditional laws and customs of the Western Desert have a spiritual connection to the claim area and the Tjukurpa associated with it on the basis of one or more of the following:

   (i)the claim area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

   (ii)he or she has traditional geographical and religious knowledge of the claim area through a long term association with the area; or

   (iii)he or she has an affiliation to the claim area through a parent or grandparent with a connection to the claim area as specified in sub-pars (i) or (ii) above;

   and

   2.who are recognised under the traditional laws and customs by other native title holders having rights in the claim area.

1. It follows the first defendant is bound to give effect to the Federal Court orders in administering the Trust.  The persons entitled to attend the community meeting required by cl 9.10(a) of the Trust Deed after March 2020 were therefore members of the claim group ascertained by reference to the Federal Court orders and the Amended Native Title Determination Application filed in those proceedings pursuant to the orders made in March 2020.

2. Accordingly, the plaintiff's claims must be rejected. Put simply, those claims appear to ignore entirely the effect of the Federal Court orders.  The first defendant made all proper enquiries to establish persons attending the meetings on 20 and 22 August were properly members of the Yugunga-Nya People. The uncontradicted evidence puts the position beyond doubt.

3. The plaintiff's claim will be dismissed.  If agreement cannot be reached with respect to costs, the parties should file short submissions on that issue within seven days of the publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MM

Court Officer

17 SEPTEMBER 2021