QGC Pty Ltd v Alberts (No 3)

Link copied
Case Copied 21 min read

FEDERAL COURT OF AUSTRALIA

QGC Pty Ltd v Alberts (No 3) [2022] FCA 141

File number(s): QUD 334 of 2018
Judgment of: RARES J
Date of judgment: 3 February 2022
Catchwords: MEETINGS – equity – fraud on a power – voting and conduct of meetings – oppression – where court ordered meeting of family group to agree on nominated entity to receive money on trust for distribution to family members – where person entitled to be present and vote at meeting was excluded from attending remotely without vote of meeting – where majority used voting power to exclude minority from involvement in establishing company and being directors – where constitution of company drafted by majority to exclude others so as to confer benefits on limited group inconsistent with purpose of meeting – whether use of voting power not bona fide or for dominant purpose foreign to the grant
Legislation:

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

Evidence Act 1995 (Cth) s 136

Native Title Act 1993 (Cth) ss 199B, 203BF, 203BK
Cases cited:

Gambotto v WCP Ltd (1995) 182 CLR 432

Ngurli Limited v McCann (1953) 90 CLR 425

QGC Pty Limited v Alberts (No 2) [2021] FCA 540

Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459
Division: General Division
Registry: Queensland
National Practice Area: Native Title
Number of paragraphs: 47
Date of hearing: 3 February 2022
Solicitor for Katrina Watson: Mr T G Hauff
Counsel for Edna Malone: Mr M McKechnie
Solicitor for Edna Malone: Marrawah Law

 

ORDERS

QUD 334 of 2018
BETWEEN:

QGC PTY LTD

Applicant
AND:

MS NATALIE ALBERTS

First Respondent

MR KENNETH BONE

Second Respondent

MS MONA BOOTH (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

RARES J

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:

1.It be declared that the meeting of the Williams family held on 2 October 2021 at Murgon and Brisbane was invalid and of no effect for the purposes of the orders made on 28 May 2021 (the 28 May orders).

2.The parties, Queensland South Native Title Services Limited and the National Native Title Tribunal confer with a view to agreeing a timetable for the holding of a new meeting of the Williams family for the purposes of the 28 May orders.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

  1. On 29 April 2021, I gave reasons to resolve a significant issue as to how the Indigenous Land Use Agreement (the ILUA), registered as QI2010/006 by the Registrar of the National Native Title Tribunal on 22 December 2010 on the Register of Indigenous Land Use Agreements under s 199B of the Native Title Act 1993 (Cth), should be construed in respect of moneys that the applicant, QGC Pty Limited, had agreed to pay for the benefit of the 11 families, as defined in clause 1.1 of the ILUA, that…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read QGC Pty Ltd v Alberts (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FCA 141
Decision Date

CaseChat Overview and Summary

In QGC Pty Ltd v Alberts (No 3), the Federal Court of Australia was called upon to determine the validity of a meeting held by the Williams family, which was intended to establish a nominated entity to manage funds paid by QGC Pty Ltd under an Indigenous Land Use Agreement (ILUA). The court had to decide whether the meeting, held on 2 October 2021, was conducted in good faith and whether the resolutions passed at the meeting were valid. The central issue revolved around whether the voting power exercised by the majority of the family members was used in a manner that was not bona fide or for a dominant purpose foreign to the grant, thereby making the meeting invalid and its resolutions ineffective.

The court found that the majority, led by Ms Malone, had used their voting power to exclude a minority from participating in the establishment of the nominated entity and to draft a constitution that conferred benefits on a limited group of family members, specifically the descendants of Bessie Williams, to the detriment of other family members. This use of power was deemed to be oppressive and not in accordance with the purpose of the meeting as mandated by the court's earlier orders. The court concluded that the resolutions of the 2 October meeting were invalid as they were not made in good faith or for the benefit of the Williams family as a whole but rather to confer benefits on a select group.

In light of the findings, the court declared the meeting held on 2 October 2021 to be invalid and of no effect. This decision necessitated the holding of a new meeting to allow for proper participation from all eligible family members. The court ordered the parties, Queensland South Native Title Services Limited, and the National Native Title Tribunal to collaborate in setting a timetable for a new meeting. The decision underscored the importance of ensuring that all family members have the opportunity to participate in decisions that affect the distribution of funds under the ILUA, preventing any misuse of power by a select group within the family.

Orders

Orders of the court

1. It be declared that the meeting of the Williams family held on 2 October 2021 at Murgon and Brisbane was invalid and of no effect for the purposes of the orders made on 28 May 2021 (the 28 May orders).

2. The parties, Queensland South Native Title Services Limited and the National Native Title Tribunal confer with a view to agreeing a timetable for the holding of a new meeting of the Williams family for the purposes of the 28 May orders.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Wishart noted in the minutes that persons in Brisbane were not happy with this outcome but understood they did not have the numbers at the meeting. Accordingly, the 2 October meeting adopted decisions 7 and 9 so that the three nominated persons from the Murgon group would be the promoters and directors of the proposed nominated entity. The evidence Importantly, the evidence relied on by each side did not disclose any genealogy of the makeup of Williams family members or anything more than an acceptance of a connection to descent from the apical ancestor, Sid Williams, who appears to have been born on 17 September 1879. Ms Malone’s evidence had set out, in a series of assertions, that her grandmother, Bessie Williams, had been born in 1908 and had, as she understood it, five other siblings. I limited that evidence without objection under s 136 of the Evidence Act 1995 (Cth) to being evidence of Ms Malone’s belief and not evidence of truth of the facts asserted. Ms Malone agreed that she had said at the meeting that Ken Bone had no right to sign the ILUA because Sid Williams had been born in Augathella and had no claim in the ILUA area. However, in her affidavit, she asserted that she had since received legal advice and agreed that all blood descendants of Sid Williams were entitled to membership of the Williams family group. There was a dispute as to whether Ms Malone also said at the meeting that Bessie Williams and her family were Cobble Cobble people. Ms Malone denied that she had made the statement, while Mr Hauff and Ms Watson, who were present, said that she had. It is not necessary for me, at the moment, to resolve that issue. Ms Malone annexed to her affidavit a copy of the proposed constitution or rule book for the Williams Family Aboriginal Corporation which she and her two co-nominees instructed a lawyer to prepare. It is an extraordinary document. First, it provided in r 6.2 that there must be no more than 12 directors, consisting of up to nine elected member directors and three skills-based directors appointed by the board. Next, r 7.1 provides (AB46–47): 7.1 Eligibility for appointment as a Director(a) An individual is eligible for election as a Member Director if the individual is:(i) a Bessie Descendant; (ii) at least 18 years of age; (iii) a member of the Corporation; (iv) completes, or has completed, a Corporate Governance Workshop either: A. in the two years prior to the date of being appointed; orB. within twelve months of being appointed as a Director; and meets all other requirements under this Constitution. (b) An individual is eligible for appointment as a Skills-based Director if the individual:(i) is 18 years of age; (ii) ordinarily resides in Australia; (iii) completes, or has completed, a Corporate Governance Workshop either: A. in the two years prior to the date of being appointed; orB. within twelve months of being appointed as a Director; (iv) they have demonstrated skills and attributes the Board is seeking; and meets all other requirements under this Constitution.(emphasis added)

Decision

Reasons for decision

In my opinion, the voting power of those present at Murgon was not used bona fide to enable the money that QGC must pay under the ILUA to be held in the proposed nominated entity for the benefit of the Williams family as a whole. Rather, Ms Malone and the others at Murgon used their voting power for the dominant purpose of conferring benefits on a limited part of the Williams family, being the descendants of Bessie Williams, to the exclusion or detriment of the balance of the members of the Williams family. That vitiated the resolutions of the 2 October meeting: Ngurli 90 CLR at 438; cf Gambotto 182 CLR at 445–447; Wayde 180 CLR at 466–468. Conclusion Accordingly, I will declare that the 2 October meeting of the Williams family was invalid and of no effect. That will require a new meeting to be held. I will allow the parties, Queensland South and the Tribunal to prepare a timetable in which that can occur as expeditiously as possible.

Ratio Decidendi

Legal Principle Established

Counsel for Ms Malone accepted that the provisions of the constitution conferring powers on members of the family descended from Bessie Williams to the exclusion of the balance of the descendants of Sid Williams as the apical ancestor could not be said to be other than oppressive as I had characterised those provisions in the course of argument, within the meaning of that concept in company law: cf Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 466–468 per Mason ACJ, Wilson, Deane and Dawson JJ. Consideration In QGC (No 2) [2021] FCA 540 at [73], I said:The importance of allowing all of the persons within the definition of “families” to participate in the process for establishment of the nominated entity, as evinced in annexure 3 of the ILUA, cannot be understated. It prevents particular persons who have other powers under the ILUA dominating that process or constituting a company that will be used ultimately to cause money paid by QGC for the benefit of the families to be paid to a narrower class. It is well‑known in the area of native title that, not infrequently, persons obtain positions of power in a claim group, through ILUAs or prescribed bodies corporate, and then misuse that power to siphon off for their own benefit large amounts of money intended for, or to benefit, members of claim groups as a whole. Indeed, one of the issues with the demise of BCJWY was whether such impropriety, in fact, happened in its case. There is some suggestion that there may have been individuals, including ones with no apparent connection to the families or the claim groups, acting in that way, but it is not necessary to make any findings about that possibility in these reasons.(emphasis added) I accept that Queensland South and the Tribunal sought to facilitate the conduct of the 2 October meeting for the Williams family in accordance with the Court’s orders and did not intend to depart from them. As Ms Dupuy pointed out in the course of argument, and I accept, the purpose of the 28 May and 27 July orders, providing for lists, was so that an information package could be sent to as many people as possible who might be within the relevant family, but that the lists were not intended to act as a comprehensive definition of persons who were, in fact, members of the families or could attend and vote at the meeting. Nonetheless, there was a failure of the Williams family to obtain agreement as to the family membership and contact list, which I infer was accidental given the volume of work involved in dealing with all 11 families the subject of the ILUA that Mr Wishart and Queensland South ultimately used to give notice of the 2 October meeting. That meant that, prior to the meeting, Ms Watson and family members on her side had no notice that Ms Broderick was a person who would receive notice or attend. Moreover, during the course of the 2 October meeting, the issue of who ought be entitled to be a member of the Williams family and to control the nominated entity evolved to become the subject of real controversy. Ms Malone only accepted subsequently to the meeting that descendants of Sid Williams were within the family.