Pat v Yindjibarndi Aboriginal Corporation RNTBC [No 3]
[2013] WASC 131
•12 APRIL 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PAT -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [No 3] [2013] WASC 131
CORAM: PRITCHARD J
HEARD: ON THE PAPERS
DELIVERED : 12 APRIL 2013
FILE NO/S: CIV 2072 of 2011
BETWEEN: MAVIS PAT
AILEEN SANDY
SYLVIA ALLAN
PlaintiffsAND
YINDJIBARNDI ABORIGINAL CORPORATION RNTBC
First DefendantSTANLEY WARRIE in his capacity as representative of persons purportedly appointed as directors of the First Defendant on or after 15 December 2010
Second Defendant
Catchwords:
Discovery - Categories of documents - Whether category of documents is relevant - Rules of the Supreme Court 1971 (WA) O 4A r 2 and O 25 r 7(3) - Turns on own facts
Legislation:
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Rules of the Supreme Court 1971 (WA)
Result:
Defendants to provide discovery of some of the disputed documents
Category: B
Representation:
Counsel:
Plaintiffs: No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiffs: Integra Legal
First Defendant : George M Irving
Second Defendant : George M Irving
Case(s) referred to in judgment(s):
Beneficial Finance Corp Ltd v Price Waterhouse (1996) 68 SASR 19
Compagnie Financiere et Commercial du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Mulley v Manifold (1959) 103 CLR 341
Pat v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2012] WASC 491
Singh v Friedman [2013] WASC 78
PRITCHARD J: The present proceedings arise from allegations of oppressive conduct by the YAC with respect to the plaintiffs. An overview of the dispute between the plaintiffs and the defendants is set out in Pat v Yindjibarndi Aboriginal Corporation RNTBC [No 2].[1]
[1] Pat v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2012] WASC 491.
The parties in this matter have agreed that an order for general discovery should not be made and instead propose that orders should be made for discovery by reference to categories of documents which are to be discovered. The solicitors for the parties have conferred about the categories of documents and one category of documents remains in dispute.
The parties agreed that this dispute in relation to the category of documents for discovery should be resolved on the papers. Each of the parties has filed submissions, and has indicated the orders they propose should be made to resolve the dispute.
The power to make orders for discovery by categories of documents
The court has power under the Rules of the Supreme Court 1971 (RSC) O 4A r 2 and O 26 r 7(3) to order discovery of documents by category.
The relevant principles in relation to the present dispute were outlined by Allanson J in Singh v Friedman [2013] WASC 78, [3] and [4].
I respectfully adopt his Honour's summary of the principles.
In this case, the plaintiffs and the defendants have each filed a Statement of Issues Facts and Contentions (referred to herein as the PSIFC and the DSIFC) in which they outline the issues in dispute in the litigation. Those documents stand in place of formal pleadings in this matter, and the content of those documents needs to be considered in the course of determining the relevance of the documents for which discovery is sought.
The orders sought by each of the parties
The orders sought by the plaintiffs
The plaintiffs seek an order that the defendants discover:
Notices of meetings, evidence of delivery of notices, proxy votes, agenda for meetings and any attachments thereto, all unedited and unabridged minutes of all YAC members meetings and attachments from 2007 to date.
Agendas and any attachments thereto, and all unedited and unabridged minutes of YAC director meetings and attachments of 17 December 2008, 26 February 2009, 15 December 2009 and 5 May 2009.
It can be seen that the plaintiffs' proposed order thus encompasses a variety of different kinds of documents, namely:
(1)In respect of any meetings of the YAC from 2007 to date, the following documents:
• notices of the meetings;
•documents containing evidence of the delivery of notices of the meetings;
•documents containing or recording proxy votes for the meetings;
• agendas and any attachments thereto; and
• all minutes together with any attachments thereto.(2)In respect of the meetings of the directors of the YAC held on 17 December 2008, 26 February 2009, 15 December 2009 and 5 May 2009, the following documents:
•agendas for the meetings, together with any attachments thereto; and
• all minutes together with any attachments thereto.
The orders proposed by the defendants
The defendants propose that the orders which should be made by the Court in respect of this category of documents be in the following terms:
1.The first‑named Defendant give discovery, by way of a list of documents verified by affidavit in accordance with O 26 of the Supreme Court Rules, of each of the following categories of documents ‑
1.1any document constituting notice of the holding of each of -
(i)the Annual General Meeting of the first‑named defendant held on 15 December March 2010 (the 2010 AGM);
(ii)the Annual General Meeting of the first‑named defendant held on 21 March 2012 (the 2012 AGM);
1.2any document containing the agenda for each of the 2010 AGM and the 2012 AGM;
1.3any document containing the attendance record for each of the 2010 AGM and the 2012 AGM;
1.4the minutes of the 2010 AGM, including any document recording the resolutions passed at the 2010 AGM;
1.5 the minutes of the 2012 AGM, including any document recording the resolutions passed at the 2012 AGM;
1.6any document comprising a transcript of the proceedings at each of the 2010 AGM and the 2012 AGM;
1.7those parts of the minutes of the meeting of the Directors of the first‑named defendant held on 5 May 2012 that deal with or relate to consideration by the directors of the applications for membership of the first‑named defendant referred to in par 47 of the defendants' Statement of Issues, Facts and Contentions (DSIFC);
1.8copies of the letters referred to in par 47 of the DSIFC;
1.9the document entitled Extract of YAC Minutes – October 2007 – December 2010.
2.The second‑named defendant give discovery, by way of a list of documents verified by affidavit in accordance with O 26 of the Supreme Court Rules, of any document in his possession, custody or power that falls within any of the categories of documents specified in paragraph 1 above that has not been included in the first‑named defendant's list of documents.
Having regard to the defendants' submissions, it also appears that the defendants do not object to discovery of the following additional documents:
(a)notice of the meeting of the YAC planned for November 2011; and
(b)documents evidencing service of the Notice of the Annual General Meeting of the YAC held on 21 March 2012.
The defendants' submissions did not refer expressly to all of the documents included within the plaintiffs' proposed order for discovery. In the case of such documents, I have assumed that the defendants oppose discovery of those documents.
The documents in dispute
Consequently, the area of dispute appears to be narrowed down to whether the defendants should be required to discover the following documents (the disputed documents):
(a)In respect of any meetings of the YAC from 2007 to date (other than the 2010 AGM and the 2012 AGM):
• notices of the meetings;
•documents containing evidence of the delivery of notices of the meetings;
•documents containing or recording proxy votes for the meetings;
• agendas and any attachments thereto; and
• all minutes together with any attachments thereto.
(b)In respect of the intended (but abandoned) meeting of the YAC on 30 November 2011:
•documents containing evidence of the delivery of notice of the meetings; and
• agendas and any attachments thereto.
(c)In respect of the meetings of the directors of the YAC held on 17 December 2008, 26 February 2009 and 15 December, the following documents:
•agendas for the meetings, together with any attachments thereto; and
• all minutes together with any attachments thereto.
(d)In respect of the meeting of the directors of the YAC held on 5 May 2012, the following documents:
•agenda for the meeting, together with any attachments thereto; and
•the balance of the minutes and attachments, other than in relation to the applications for membership referred to in par 47 of the DSIFC.
Overview of the factual issues arising from the PSIFC and DSIFC to which the disputed documents are said to be relevant
According to the PSIFC, the principal issues in the proceedings include whether the actual or proposed conduct or resolutions of the YAC have been 'contrary to the interests of the members as a whole' or 'oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member or members' of the YAC, within the meaning of those terms in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), whether there has been an abuse of power by the YAC or its directors, and whether certain meetings and resolutions of the YAC and the appointment of its directors are invalid.[2]
[2] PSIFC [12].
The factual circumstances on which the plaintiffs rely are, for the main part, set out in par 13 of the PSIFC. The factual allegations include that in 2010 a number of members of the YAC became concerned that some members of the YAC were being excluded from consultation about native title matters, and were being denied their rights to attend, speak and vote at meetings of the YAC; that from at least 2007 members of the YAC were not sent notifications of meetings of the YAC and therefore may not have learned when a general meeting or a directors' meeting was being held; that members of the YAC were physically prevented from attending the 2010 AGM; that the YAC did not send notice of a proposed meeting on 30 November 2011 to the members, or excluded members, of the YAC; and that at the 2012 AGM, nominations for directors were not invited from some members of the YAC.
The defendants deny that any conduct of the defendants satisfies the requirements of the CATSI Act so as to permit orders to be made by the Court, and say that there are no ongoing concerns about the governance of the YAC.[3]
[3] DSIFC [22].
In pars 23 ‑ 69 of the DSIFC the defendants respond to the factual allegations in par 13 of the PSIFC. The defendants' case, broadly speaking, is that they dispute that members of the YAC were denied the opportunity to participate in the business of the YAC. The defendants allege that the plaintiffs and others attended various meetings of the YAC, including directors' meetings, and also attended external meetings at which issues relating to the YAC were discussed. Further, the defendants allege that the members of the YAC were notified of meetings and given the opportunity to attend and participate.
Clearly, there are factual disputes between the plaintiffs and the defendants, particularly in relation to notification of the meetings of the YAC, and whether all members of the YAC were permitted to attend and participate in the YAC meetings.
Whether an order for discovery of the disputed documents should be made
The defendants' broad position in relation to the disputed documents is that the documents are not relevant to the issues in dispute because they do not relate to any question in the proceedings. In the case of the meetings of the directors of the YAC, the defendants' position is that members of the YAC are not entitled to notice or minutes of those meetings, so such documents are also irrelevant on that basis.
Documents relating to meetings of the YAC from 2007 to date (other than the 2010 AGM and the 2012 AGM) - Notices of the meetings; evidence of notification
In the PSIFC the plaintiffs allege that 'from at least 2007 (with the exception of the [2012 AGM]) members of the YAC were not sent notifications of meetings of YAC and may not have learned when a general meeting or a directors meeting was being held'.[4] The plaintiffs contend[5] that the consequence of the failure to provide notice of meetings is that a significant number of members will not have been invited to attend annual general meetings of the YAC, will not have been invited to attend directors' meetings, will not have been provided with any information about the YAC's finances, or been informed about where YAC's money is going, and will not have been informed or consulted about YAC's activities and business.
[4] PSIFC [13z] and [67].
[5] PSIFC [67].
The defendants' response is to the effect that the plaintiffs' assertions are without any factual foundation. The defendants allege that 'all members of the YAC were notified of all meetings that were to be held'[6] and refer to the process for notification which was used in relation to some meetings of the YAC.[7]
[6] DSIFC [26].
[7] DSIFC [61].
The defendants submit that the plaintiffs' allegation that some YAC members may not have learned of meetings is too vague to support the broad order for discovery that the plaintiffs seek, for the following reasons:
(i)it refers to 'members of the YAC' without indicating that what is alleged is a failure to notify some of the members of the YAC from 2007 or merely the three plaintiffs;
(ii)it refers to meetings of YAC without indicating whether the reference is to members' meetings or other meetings; and
(iii)it makes only a speculative and unsubstantiated claim that members may not have learned when a meeting was to be held.[8]
[8] Defendants' Outline of Submissions dated 5 March 2013 [11].
These reasons for resisting discovery are in essence complaints about the adequacy of the 'pleadings' in the PSIFC or about inadequate particularisation of the PSIFC. Notwithstanding these complaints, the defendants have responded to the plaintiffs' allegations in the DSIFC. However, the question for discovery purposes is whether the defendants have documents relating to any matter in question, within the broad understanding of the meaning of that phrase.[9] Given that there is a factual issue as to whether notification was given to all of the members of the YAC about meetings of the YAC, clearly such documents as the defendants may have which constitute notices of meetings, and which contain evidence of notice being given to members, will be relevant.
Agendas for meetings (and attachments), documents containing proxy votes, and minutes of meetings of the YAC since 2007 (and attachments)
[9] Mulley v Manifold (1959) 103 CLR 341, 345 (Menzies J), Beneficial Finance Corp Ltd v Price Waterhouse (1996) 68 SASR 19, 34, 58; Compagnie Financiere et Commercial du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (Brett LJ).
The plaintiffs allege[10] that the YAC failed to provide minutes of meetings and resolutions of the YAC to members of the YAC when requested to do so. In the DSIFC, the defendants say that they have provided the plaintiffs with extracts of the minutes of the YAC's meetings from October 2007 to December 2010, redacted to exclude legal advice and confidential information concerning negotiations with third parties. [11] There clearly is a dispute as to whether members of the YAC have been provided with the minutes. The minutes in their entirety may be relevant to the line of enquiry as to whether all of the minutes were provided and if only part of the minutes were provided whether that constituted or evidenced oppressive conduct.
[10] PSIFC [13u] and [151].
[11] DSIFC [52]
The plaintiffs also submit that even on the defendants' case, minutes of meetings must be relevant to the issues in dispute because numerous meetings are referred to in the DSIFC as examples of occasions on which the plaintiffs participated in meetings, and business, of the YAC.[12] In addition, the plaintiffs note that in the DSIFC the defendants point to the minutes of unspecified meetings of the YAC as demonstrating that the plaintiffs' allegations are unfounded.[13]
[12] DSIFC [24].
[13] DSIFC [26].
The defendants submit that the references in the DSIFC to minutes of YAC meetings 'do not amount to a concession that all documents relating to all of the specified meetings that fall within the terms of [the category of disputed documents] are relevant to issues or questions in dispute'.[14] The defendants submit that the references to meetings of the YAC in the DSIFC:
[W]ere referred to in response to vague and un-particularised general allegations of fact made in … the PSIFC and the supposition of the Defendants that these allegations were founded on the specific paragraphs of the four deponents identified in par [23] of the DSIFC. This part of the DSIFC seeks only to respond by demonstrating the extent of participation of those deponents in various Yindjibarndi meetings some of which involve the business affairs of YAC. To the extent that the Defendants will seek to rely on documents evidencing that level of participation by those deponents, the Defendants have already agreed that those documents must be the subject of discovery and they have already agreed to discover them …. The defendants submit that any more extended claim for discovery of more documents cannot have any relevance to the issues in dispute in the proceeding and amount to a fishing exercise by the Plaintiffs.[15]
[14] Defendants' Written Outline of Submissions [12].
[15] DSIFC [12].
Had the defendants' response in the DSIFC gone no further than the matters set out at par 24 of the DFISC this submission may have been more attractive. In light of par 26 of the DSIFC, however, the defendants' submission cannot be accepted. The defendants contend that:
all members of YAC were notified of all meetings that were to be held, they were all invited to attend, and those who did attend, had no impediment imposed on them in speaking and voting at such meetings. Twenty‑two of the 36 meetings conducted between January 2008 and August 2010 were filmed and those recordings demonstrate that the meetings were held in accordance with the usual procedures for meetings.
The PSIFC and DSIFC thus indicate that the matters in question include whether the plaintiffs or YAC members were notified of meetings of the YAC and whether they were permitted to attend and participate in meetings.
The agendas for meetings may be relevant to the plaintiffs' claims of oppression in so far as they may permit a train of enquiry into whether the plaintiffs or members of the YAC were not invited or permitted to attend meetings at which particular issues were to be discussed.
The plaintiffs submit that the content of the minutes will be relevant because if 'weighty' matters were discussed, the oppression resulting from their exclusion will be magnified.
While the minutes may be relevant because of the issues discussed at particular meetings (depending on other considerations, such as whether members of the YAC were actually excluded from particular meetings) a more basic reason for the relevance of the minutes of the meetings is that they may also disclose whether the plaintiffs or other members of the YAC were excluded from attendance at, or from speaking, voting or otherwise participating in, the meetings of the YAC. Information of that kind would clearly be relevant to the oppression claim.
The defendants' agreement to discover the document entitled Extract of YAC Minutes - October 2007 ‑ December 2010 does not render unnecessary the discovery of the minutes in a complete form.
Minutes of the meetings of the members of the YAC since 2007 (and any attachments thereto) should be discovered by the defendants, as should the agendas for those meetings and any attachments thereto.
For the avoidance of any doubt, I note that any claims to legal professional privilege or confidentiality in respect of information in such documents can of course be dealt with in the usual way.
In their submissions the plaintiffs did not address the relevance to the issues in dispute of documents containing proxy votes. I am unable to see how such documents would be relevant to any matter in issue or lead to a line of enquiry to establish oppression. Accordingly, the defendants should not be required to discover documents containing proxy votes.
In respect of the intended (but abandoned) meeting of the YAC on 30 November 2011, documents containing evidence of the delivery of notice of the meeting, and the agenda for the meeting and any attachments thereto
The PSIFC alleges that the agenda for the proposed meeting on 30 November 2011 was published in the newspaper on 9 November 2011, and included an item entitled 'cancellation of members'.[16] The plaintiffs also allege that notice of the proposed meeting on 30 November 2011 was not given to some members of the YAC.[17] The defendants submit that while they do not object to the discovery of the notice of the meeting on 30 November 2011, any documentary evidence of notice of that meeting, and the agenda for that meeting, cannot be of relevance in these proceedings, given that the meeting did not take place. I am unable to agree.
[16] PSIFC [13s].
[17] PSIFC [13t].
If notice were given to some, but not all, members of the YAC, that would clearly be potentially relevant to the plaintiffs' claims of oppressive conduct by the YAC. Similarly, the agenda for the meeting may also be relevant, depending on other circumstances (such as whether notice was in fact given to all members of the YAC). These documents may contain information of relevance to the question whether the members were in fact excluded, and whether an inference may be drawn that members were excluded so that they would not be able to participate in discussion of a particular issue at the meeting.
The agenda, any attachments thereto, and any documents containing evidence of the delivery of notice, in respect of the meeting of 30 November 2011, should be discovered by the defendants.
The agendas (and attachments) and minutes (and attachments) in respect of the meetings of the directors of the YAC held on 17 December 2008, 26 February 2009 and 15 December 2009, and the agenda (and attachments) and the balance of the minutes (and attachments) in respect of the meeting of the directors of the YAC held on 5 May 2012
In the DSIFC, the defendants allege that two of the plaintiffs and other YAC members attended a number of meetings of the directors of YAC and participated in those meetings.[18] The defendants rely on these factual allegations to support the contention that the plaintiffs and other members of the YAC participated in YAC's business and affairs, and thus to resist any allegation of oppressive conduct by the YAC. In addition, in the DSIFC the defendants make a number of allegations about an issue discussed at a directors' meeting on 5 May 2012 - namely applications for membership of the YAC by a number of persons - and conduct of YAC officers thereafter.[19] The latter allegations respond to allegations in the PSIFC as to the exclusion of some YAC members from membership of the YAC, and allegations that applications for membership of the YAC by certain persons have been ignored by the YAC.
[18] DSIFC [24(g)], [24(k)], [24(m)], [24(o)], [24(p)] and [24(t)].
[19] DSIFC [47].
The plaintiffs do not press for discovery of documents pertaining to directors' meetings generally, but seek discovery only of documents relating to directors' meetings which have been specifically referred to in the DSIFC.
The defendants submit that there is no legal or constitutional obligation on the YAC or its directors or officers to notify members when a directors' meeting is to be held, the agenda for that meeting, what transpired at the meeting, and what resolutions were passed. Accordingly, the defendants submit that the plaintiffs' application for documents in relation to meetings of the directors of the YAC constitutes a fishing expedition.[20]
[20] Defendants' Outline of Submissions dated 5 March 2013 [11].
The plaintiffs submit that although there is no express obligation on the YAC to provide members with notice of directors' meetings, clause 5.16 of the YAC Rules provides that members of the YAC are allowed to attend directors' meetings and to participate in discussions at those meetings although they are not entitled to vote.
It is arguable that this entitlement would be rendered devoid of any practical benefit if notice of the intended time and place of a directors' meeting, and the issues for discussion at that meeting, were not made available to, or able to be ascertained by, members of the YAC, or if members were not permitted to attend and participate in discussions on particular issues (within the limits of the YAC's Rules). Accordingly, it is arguable that if the YAC failed to make available to members information as to the date and location of directors meetings, or issues for discussion at those meetings, that would be relevant to whether the conduct of the YAC and its officers was oppressive towards some of the members of the YAC. It is also conceivable that an inference of oppressive conduct might be strengthened if information about the date of, or issues for discussion at, directors meetings were made available in respect of some meetings but not others, particularly if contentious issues were discussed at the latter meetings, or if members were permitted to attend and participate in some, but not all, discussions at a directors' meeting. Equally, of course, if notice and agendas were disclosed to YAC members, or if it was the case that YAC members including the plaintiffs were permitted to attend the meetings, then that might undermine any claim to oppressive conduct in relation to those meetings.
For these reasons, in my view, the agendas and minutes (and the attachments thereto) of the directors' meetings of 17 December 2008, 26 February 2009 and 15 December 2009 should be discovered by the defendants, and the agenda and the balance of the minutes (in addition to that part of the minutes which the defendants have already agreed to discover) for the meeting of the directors of the YAC on 5 May 2012, together with the attachments thereto, should be discovered by the defendants.
The orders which should be made
I will make orders that the defendants provide discovery of the disputed documents other than documents relating to proxy votes for meetings of the YAC.
Having regard to these reasons, the parties' solicitors should confer about the precise form of the orders which should be made for discovery of the documents in this final category of documents for discovery, with a view to the submission to my associate of a Minute of Orders in an agreed form by Tuesday, 16 April 2013.
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