Joslyn Maria Mongoo in his or her own right and representing the Trust Advisory Committee of the Yugunga-Nya People's Trust v Fiduciary Administration Services Pty Ltd
[2020] WASC 109
•2 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: JOSLYN MARIA MONGOO in his or her own right and representing THE TRUST ADVISORY COMMITTEE OF THE YUGUNGA-NYA PEOPLE'S TRUST -v- FIDUCIARY ADMINISTRATION SERVICES PTY LTD [2020] WASC 109
CORAM: ALLANSON J
HEARD: 1 APRIL 2020
DELIVERED : 2 APRIL 2020
PUBLISHED : 2 APRIL 2020
FILE NO/S: CIV 1188 of 2020
BETWEEN: JOSLYN MARIA MONGOO in his or her own right and representing THE TRUST ADVISORY COMMITTEE OF THE YUGUNGA-NYA PEOPLE'S TRUST
Plaintiff
AND
FIDUCIARY ADMINISTRATION SERVICES PTY LTD
First Defendant
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Second Defendant
FILE NO/S: CIV 1198 of 2020
BETWEEN: FIDUCIARY ADMINISTRATION SERVICES PTY LTD
Plaintiff
AND
ATTORNEY GENERAL OF WESTERN AUSTRALIA
First Defendant
AC ADMINISTRATION SERVICES PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Where arrangements for taking evidence subject to public health measures to contain COVID-19 - Whether court should order trial of preliminary questions on which oral evidence not required - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
CIV 1188 of 2020
Counsel:
| Plaintiff | : | M Tolcon |
| First Defendant | : | C Stokes |
| Second Defendant | : | MJ Elliott |
Solicitors:
| Plaintiff | : | Forbes Kirby |
| First Defendant | : | Chris Stokes & Associates |
| Second Defendant | : | State Solicitor's Office |
CIV 1198 of 2020
Counsel:
| Plaintiff | : | C Stokes |
| First Defendant | : | MJ Elliott |
| Second Defendant | : | M Tolcon |
Solicitors:
| Plaintiff | : | Chris Stokes & Associates |
| First Defendant | : | State Solicitor's Office |
| Second Defendant | : | Forbes Kirby |
Case(s) referred to in decision(s):
BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 2) [2012] WASC 321
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
ALLANSON J:
Introduction
CIV 1188 of 2020
By originating summons filed 10 February 2020, the plaintiff Joslyn Maria Mongoo applied for orders:
a.It be declared that the Defendant [Fiduciary Administration Services Pty Ltd] be removed as trustee of the Yugunga-Nya Peoples Trust (Trust).
b.It be declared that AC Administration Services Pty Ltd be appointed as trustee of the Trust.
Ms Mongoo has been a member of the Advisory Committee of the Yugunga‑Nya People's Trust and purports to bring the proceedings on behalf of the Advisory Committee. The Advisory Committee is not a legal entity, and the action should properly be brought by Ms Mongoo as representative of the members. For brevity I will simply refer to Ms Mongoo when referring to the plaintiff in CIV 1188 of 2020. That is not intended to indicate any view on the contested issue regarding the validity of the appointment of members of the Advisory Committee.
Although the orders sought by Ms Mongoo are expressed to operate prospectively, her position is that Fiduciary Administration Services was removed as Trustee of the Yugunga‑Nya People's Trust by a vote of the Advisory Committee on 8 January 2020.
CIV 1198 of 2020
By originating summons filed 12 February 2020, Fiduciary Administration Services applied for orders:
(1)A declaration that the plaintiff is and remains the validly appointed trustee of the Yugunga-Nya Peoples Trust.
(2)That the Trustee may pay the costs of this application from the Trust funds.
AC Administration Services, the proposed incoming trustee, is named as a defendant to the application by Fiduciary Advisory Services.
The Attorney General of Western Australia is a defendant in each action.
On 20 February 2020, a registrar ordered that the two actions be listed and heard at the same time.
On 10 March 2020, I provisionally listed the two actions for hearing on 22 and 23 April 2020, the intention then being that the hearing would proceed on affidavit evidence with cross‑examination, if any, limited to the meeting, and in particular the voting, of the Advisory Committee on 8 January 2020
The proposed preliminary issue
In an application made by a memorandum of proposed orders, dated 26 March 2020, Fiduciary Administration Services proposed that the following issues be tried before the trial of the other questions and issues arising in these actions:
Issue 1
As at 8 January 2020 were Trevor Shay, Cheryl Shay, Andrew Gentle (Snr) Evelyn Gilla, Joslyn Mongoo, Leonie Gentle, Audrey Shar, Bill Shay, Terence Little and Russell Little validly appointed members of the Trust Advisory Committee (TAC) pursuant to the provisions of The Yugunga-Nya People's Trust Deed dated 26 May 2004, as amended?
Issue 2
Was the meeting held on 8 January 2020 at Level 3, 849 Wellington Street West Perth a validly convened meeting of the TAC pursuant to the provisions of The Yugunga-Nya People's Trust dated 26 May 2004, as amended?
Although I am currently concerned only with the question of whether a trial of the preliminary questions should be ordered, I believe it useful to set out some of the background to the Trust. That background is relevant to whether the resolution of the proposed questions would be likely to quell or even limit the dispute.
Background to the Trust
The Trust Deed
The Yugunga‑Nya People's Trust was established by a deed, dated 26 May 2004, as a perpetual charitable trust 'to assist the Beneficiaries who are Persons of Aboriginal Descent'.[1]
[1] Trust Deed, Recital B.
The Trust Deed was varied on 10 October 2008 (amending the definition of Beneficiaries, with consequential amendments). The Beneficiaries under the Trust Deed, as amended, are the Yugunga‑Nya People, the spouses and children of Yugunga‑Nya People, and any persons of Aboriginal descent living permanently or temporarily in the Shire of Meekatharra or the Shire of Cue.[2]
[2] Cl 3.1, as amended on 10 October 2008.
The Trust is a discretionary trust, in which no individual beneficiary or group of beneficiaries has any vested interest in or entitlement to any of the trust fund.[3]
[3] Cl 3.2.
Clause 4 sets out the charitable objects of the Trust, being 'the relief of aged, poverty, sickness, suffering, distress, misfortune or destitution' of the Beneficiaries, the advancement of education, culture and religion of the Beneficiaries, and other purposes beneficial to the community of the Beneficiaries.
Clause 5 provides for the appointment of a Trustee, including a corporation. Clause 5.4 provides for the removal and replacement of the Trustee. Clause 5.5 provides:
The Advisory Committee may by a three quarter majority decision of all Advisory Committee members, terminate the appointment of a person as Trustee and may appoint a person or persons as a replacement Trustee and such person or persons appointed shall, on acceptance of such appointment, become a Trustee.
The Trustee 'shall have the ultimate decision-making power in all matters relating to the Trust'.[4] Despite the Trustee's ultimate decision making power, the Trust Deed provides for the appointment of an Advisory Committee,[5] and requires the Trustee to consult with and obtain the recommendation of the Advisory Committee on specified matters including the investment of the trust fund, the distribution of the trust fund, and any variation to the Trust Deed.[6] The Trustee is not, however, bound to act on any recommendation or advice of the Advisory Committee.[7]
[4] Cl 6.3 (a).
[5] Cl 9.
[6] Cl 9.3.
[7] Cl 9.5.
Clause 9.6 prescribes the procedure for consultation between the Trustee and the Advisory Committee.
Two issues regarding the Advisory Committee lie at the heart of these disputes. First, cl 9.9 provides:
Any Advisory Committee member may convene a meeting of the Advisory Committee for the purpose of appointing a new Trustee (if there is none) or to remove and replace a person acting as Trustee as set out in sub-clauses 5.4 and 5.5 and the method of organising a meeting of the Advisory Committee as set out in sub-clause 9.6 shall apply with necessary modifications.
Second, cl 9.10 provides for the resignation and replacement of Advisory Committee members. It requires the Trustee to organise a community meeting of the Yugunga‑Nya People each calendar year at which, if a quorum (15 adult Yugunga‑Nya People) is present, the community meeting may elect a new Advisory Committee by a simple majority of votes which shall upon election replace the previous Advisory Committee. If a quorum is not present, than the existing members of the Advisory Committee shall serve a further 12 months term. By cl 9.11, the Advisory Committee shall act for minimum of 12 months from the time they are elected, and may continue to act for a further 12 months if a quorum is not present at the community meeting called in accordance with cl 9.10.
The Trustee may, by supplemental deed, revoke, add to or vary any or all of the terms of the Trust Deed.[8] The power to vary the terms of the Trust is one on which the Trustee shall consult with and obtain the recommendation of the Advisory Committee.[9]
The Trustees
[8] Cl 14.2.
[9] Cl 9.3(d).
On 10 July 2017, the original trustee, Thomas Graham Greenaway, retired and Bulhari Holdings Pty Ltd was appointed as incoming trustee.
On 24 April 2018, the Advisory Committee resolved to remove Bulhari Holdings and appoint ISPL Y‑N Pty Ltd as the new trustee.
On 8 July 2019, the Advisory Committee resolved to remove ISPL Y‑N and appoint Fiduciary Administration Services Pty Ltd as the new trustee.
The current proceedings are concerned with the purported removal of Fiduciary Administration Services in January 2020. If that removal was effective, AC Administration Services Pty Ltd will be the fourth Trustee in less than three years.
The rapid turnover of trustees is not the only indicator of underlying problems.
Other actions and proceedings relating to the Trust
In 2018, the then trustee commenced proceedings in the Supreme Court against the original trustee. That action is ongoing.
In an affidavit sworn 11 February 2020, filed in CIV 1198 of 2020, Philip Eric Williams, a director of Fiduciary Administration Services, deposed that he is negotiating with the Australian Charities and Not for Profit Commission in respect of an ongoing investigation of former trustees of the Trust, and facilitating an audit of the financial records of the Trust for the 2018 and 2019 financial years. It appears that no audit has previously been conducted.
In December 2019, there was a community meeting to consider, among other things, appointment of the members of the Advisory Committee. Mr Williams deposed that the meeting failed to record a vote, and police and security had to be called in.
The meeting of 8 January 2020
By an email dated 27 November 2019, Ms Mongoo gave notice of the meeting of the Advisory Committee to be held on 4 December 2019 to terminate the appointment of the current Trustee and appoint IE Services Pty Ltd as replacement trustee.[10] The evidence does not show whether that meeting proceeded.
[10] Affidavit of Phillip Eric Williams, sworn 11 February 2020 [49] and PEW 12.
In December 2019, Ms Mongoo circulated an undated document headed 'Notice of General meeting for The Yugunga‑Nya People's Trust', giving notice of the meeting on 8 January 2020 of the 'Advisory Committee and the Trustees [sic]' pursuant to cl 9.9 and cl 9.6 of the Trust Deed. Ms Mongoo deposed that she hand‑delivered the notices of the meeting to Advisory Committee members between 19 and 21 December 2019.
The agenda attached to the notice gave notice that the Advisory Committee sought:
·To terminate the appointment of the Trustees;
·Appoint AC Administration Services Pty Ltd … as a replacement Trustee; and
·Any change will be documented by a Deed of Variation of Trust to give full effect to this resolution.
The proposed replacement trustee, AC Administration Services, was incorporated on 12 December 2019, with the intention that it would act as trustee following the vote at the proposed meeting.[11]
[11] Affidavit of Frank Carl Ashe, sworn 31 March 2020 [2].
The meeting was held in Perth on 8 January 2020. Ms Mongoo contends that the meeting resolved to terminate the appointment of Fiduciary Advisory Services and appoint AC Administration Services as replacement trustee. In these proceedings, the validity of the meeting is in question, including the procedure by which it was convened, whether those who attended were validly appointed members of the Advisory Committee, and whether the resolution to replace the Trustee was passed by the required majority.
With regard to the last of those issues, there is a conflict in the affidavits filed in CIV 1188 of 2020. In her affidavit affirmed 10 February 2020, Ms Mongoo deposed that eight members of the Advisory Committee attended the meeting on 8 January 2020, either in person or by telephone, and all eight members voted in favour of the resolutions.
Five other members of the Advisory Committee who attended the meeting have filed identical affidavits stating that they attended the meeting and voted in support of the resolution, and that Mr Bill Shay was on the telephone and the deponent, in each case heard him vote 'yes' to the resolution. A further affidavit differs only in that the deponent says she attended by telephone.
Ms Mongoo produced minutes of the meeting, signed by her as chair, recording the vote.
Fiduciary Advisory Services has filed an affidavit of Mr Bill Shay in which he says that he did not attend the meeting, and when telephoned said he did not want to take part in it.
On 31 March 2020, the solicitors for Ms Mongoo filed further affidavits of Yung Tri Nguyen, solicitor, and the directors of AC Administration Services - Frank Carl Ashe and Christopher James Clarke. Each deposed to having been present at the meeting on 8 January 2020 and to their recollection of the voting of those present and by telephone.
There is, accordingly, a factual issue to be determined regarding the conduct of the meeting and whether the necessary three quarters majority to replace the Trustee was achieved.
Finally, by way of background, there have been further events in the last week. Ms Mongoo has given notice of a further meeting of the Advisory Committee for 4 April 2020, to remove Fiduciary Advisory Services as Trustee. The validity of that meeting will also depend on whether the members of the Advisory Committee are validly appointed.
On 25 March 2020, seven people, including four members of the Advisory Committee, went to Mr Bill Shay's home and procured his resignation from the Advisory Committee. There is a potential dispute about those events.
The determination of a preliminary issue
The principles guiding the exercise of the discretion to order the trial of a preliminary issue have been set out in earlier decisions of this and other courts. They were summarised by Pritchard J in BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 2)[12] and I respectfully adopt what her Honour said there.
[12] BCBC Singapore Pte Ltd v PT Bayan Resources TBK (No 2) [2012] WASC 321 [26] - [27].
Each case, of course, has its own particular circumstances and the situation presented by this case is extraordinary.
First, while there is uncertainty about the validity of the appointment of Fiduciary Advisory Services as Trustee, the charitable Trust for the benefit of the Yugunga‑Nya People and other beneficiaries in Meekatharra and Cue is unable to operate effectively. Because important powers of the Trustee are to be exercised after consultation with the Advisory Committee, uncertainty about the membership of the Advisory Committee may similarly hinder the operation of the Trust. There is no doubt that an urgent resolution is needed.
The orders made on 10 March 2020 were designed to allow all matters raised on the two existing applications, including factual issues, to be determined by the end of April.
Second, the arrangements for an urgent trial are affected by the arrangements which must be made for the management of COVID‑19, including travel restrictions. The trial orders contemplated the cross-examination of witnesses, most of whom live in Meekatharra. The measures put in place to contain COVID‑19 obviously prevent the hearing of oral evidence or cross‑examination on affidavits in Perth for the immediate future. It may be possible to take the evidence by video from the court in Meekatharra, should it be available, but that option has its own problems. The health advice published to the community has emphasised the particular risks that COVID‑19 may pose to people of Aboriginal descent. It would, in my opinion, be irresponsible to proceed on the basis that the eight witnesses who are said to have voted at the January meeting should be assembled at one place to enable them to testify, unless the court can be satisfied that satisfactory arrangements can be made for both the giving of evidence by video, and the welfare of the witnesses.
I do not rule out proceeding on the reserved dates if suitable arrangements can be made and if, in accordance with the direction of the Chief Justice published on 27 March 2020, authorisation is given for the trial to proceed based on the urgency of the matter and in light of available resources. But I approach the present application from the perspective that a full trial, with cross‑examination of witnesses, is unlikely to proceed.
Third, when considering an application for determination of preliminary questions, the court will as a general rule proceed with caution. In the context of an application to reserve a question to an appeal court, it has been said that it may be inappropriate to consider a question in the context of an 'artificially constricted' body of facts, being those that the parties agree are necessary for the determination of the preliminary question, rather than in the context of all of the facts which may be found at trial.[13] A trial judge must also consider the extent to which the formulation of the question, and confining the hearing to the facts necessary to determine that question, will produce a just result.
[13] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 [7].
Counsel for the Fiduciary Administration Services submitted that, on the existing programming orders, further evidence should not be permitted regarding the community meetings at which Ms Mongoo says the present members of the Advisory Committee were appointed, or their terms extended. To adopt that course would, in my opinion, be to proceed on artificially constricted facts. Although the proceedings were commenced by originating summons, it is now clear that there are significant contested issues of fact. The choice of originating process should not be permitted to dictate the outcome.
I cannot exclude the prospect of a finding that, without evidence about the relevant community meetings, it is not possible to determine the validity of the appointment of the Advisory Committee members.
Fourth, while the second proposed question may be determined as a matter of construction of the Trust Deed, solely on the existing affidavit evidence and without cross‑examination of witnesses, the answer to that question will not resolve the whole dispute.
The result is that I have no confidence that the determination of the proposed preliminary questions will shorten the litigation, taking into account the prospect of interlocutory appeals, and the need to determine the factual dispute about the membership of the Advisory Committee. The history of the operation of the Trust, particularly since 2017, suggests that the whole of the dispute must be resolved.
Conclusion
It would not, in my opinion, be a proper exercise of the court's discretion to order the trial of the proposed preliminary questions.
I will, however, keep the reserved dates available should it be possible to use them.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson2 APRIL 2020
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