Rangelea Holdings Pty Ltd v Adnyamathanha Traditional Lands Association

[2025] SASCA 32

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

RANGELEA HOLDINGS PTY LTD v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION & ORS

[2025] SASCA 32

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

28 March 2025

EQUITY - TRUSTS AND TRUSTEES - CLASSIFICATION OF TRUSTS - GENERALLY

EQUITY - TRUSTS AND TRUSTEES - PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES

EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES

The parties to this appeal have fallen into dispute over whether the appellant trustee, Rangelea Holdings Pty Ltd (Rangelea), should be required to provide trust documents and be subjected to the appointment of an inspector for the purposes of reviewing the administration of the Adnyamathanha Master Trust (the Trust), settled by a deed dated 22 July 2003 (the Trust Deed).  The Trust Deed confers a discretion on Rangelea to make distributions to those named as members of various traditional owner “sub-groups” set out in a schedule to the Trust Deed.

There was evidence that more than $4 million had been paid into the Trust during 2020 pursuant to native title mining agreements with Heathgate and Quasar, but there was little to no information available as to how much native title compensation monies had been received into the Trust nor how those monies had been administered or what had happened to them.  Rangelea refused requests to provide Trust documents and records.

The first respondent is the Adnyamathanha Traditional Lands Association (ATLA), an Aboriginal and Torres Strait Islander corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act).  ATLA is also an agent prescribed body corporate and a registered native title body corporate under the Native Title Act 1993 (Cth) (the Native Title Act), and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Native Title PBC Regulations). 

Following the determination of native title in 2009 in favour of the Adnyamathanha people, ATLA was bound by s 57(3) of the Native Title Act to perform any functions conferred under that Act, together with any further functions conferred by the Native Title PBC Regulations. By reg 7, ATLA assumed the function of acting as the agent of the “common law holders” concerning matters relating to their native title.

ATLA is currently under “special administration” pursuant to a determination made by the Registrar of Aboriginal and Torres Strait Islander Corporations under s 487-1 of the CATSI Act, as extended from time to time. Mr Peter McQuoid was first appointed special administrator of ATLA on 17 April 2021. 

The second, third and fourth respondents (the respondents) are Adnyamathanha people who are “common law holders” of native title in Adnyamathanha land, as defined by s 56(1)(a) of the Native Title Act and Schedule 2 of the 2021 ATLA Rule Book.  They are also members of a sub-group of traditional owners identified in the Schedule to the Trust Deed.  Their names appear on the Traditional Owners Register, which is required to be maintained pursuant to the Trust Deed.  Though Rangelea disputes it, they also claim to be beneficiaries of the Trust.  That is to say, they say that they are people whom it is intended should benefit and receive payments from the Trust.

Rangelea has appealed against the orders made by the primary judge which upheld their application to the Supreme Court which permitted ATLA and the respondents to obtain access to certain trust documents regarding the administration of the Trust. These were granted on the basis that they had satisfied various statutory and general law criteria concerning access to trust documents. In so far as the application was based on statute, the respondents relied on s 84B of the Trustee Act 1936 (SA) (the Trustee Act). The primary judge also appointed an inspector to investigate and report on the administration of the Trust under s 84C of the Trustee Act.

In seeking to set aside these orders, Rangelea contended that ATLA had no standing to seek relief (appeal grounds 4 and 6); that the primary judge erred in finding that the Trust was a private discretionary trust rather than a charitable trust, with the result that the respondents had no entitlement to the information sought (appeal grounds 2 and 3); and there was, in any event, no basis for the appointment of an inspector (appeal ground 7).

HELD (the Court) dismissing the appeal with costs:

1.The primary judge made no material error in connection with the finding that ATLA had standing. There is an important distinction between what may be said to be “related” to native title and native title rights and interests (under ss 57(3) and 58 of the Native Title Act and reg 7(1)(a) of the Native Title PBC Regulations), and acts which “affect” native title and native title rights and interests (under s 227 of the Native Title Act and reg 8 of the Native Title PBC Regulations).  The distinction is essentially between a matter that “relates” to native title and an act which “affects” native title.  The result is that the statutory agency under which ATLA operated generally permitted it to act for the common law holders concerning matters “relating” to their native title, unless the matter comprised an act which “affected” their native title, in which case consultation, consent and certification under regs 8 and 9 of the Native Title PBC Regulations were required. [103]-[104], [110]-[112], [132]

2.An act “affecting” a native title right as recognised by s 227 of the Native Title Act must be one which extinguishes native title rights and interests or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The request for trust documents and the commencement of the Supreme Court application did not involve the extinguishment or surrender of native title rights and interests. Those matters were, on the contrary, concerned with ATLA striving to ensure that the common law holders would continue to benefit from those rights, together with the “royalty” payments made under the native title mining agreements relating to those rights. Reg 8(1) does not apply, and consultation and consent were not required, because ATLA was not relevantly engaged in “making a native title decision” when seeking documents or making its application to the Supreme Court. [122]-[130]

3.The Trust is a private discretionary trust and not a charitable trust within the fourth of the categories identified by Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel, and the respondents as beneficiaries had statutory and general law rights to seek trust documents and records and the appointment of an inspector.  When one stands back and looks at the terms of the Trust Deed, it is a Trust intended to benefit people rather than a purpose. [223]-[227], [258]-[260]

4.There was a proper basis for the appointment of an inspector under the Trustee Act. [332]‑[342]

5.Observations made about construing trust deeds [146]-[151], whether the Trust has vested [215]-[221], the statutory and general law rights of beneficiaries seeking trust documents and records in South Australia [311]-[317], and the Trustee Act provisions concerning the appointment of an inspector [320]-[330].

6.Were it necessary to do so, the alternative contentions of ATLA and the respondents should be upheld. [345], [357], [361]-[362]

Aboriginal and Torres Strait Islander Act 2005 (Cth) s 191B; Aboriginal Councils and Associations Act 1976 (Cth); Charitable Trust Act (NSW) s 23; Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth); Law of Property Act 1936 (SA) s 61; Local Government Act 1995 (WA) s 6.26; Mining Act 1971 (SA); Native Title Act 1993 (Cth) ss 15, 17, 20, 22D, 22G, 22L, 23J, 24GB, 24GE, 24HA, 24KA, 24ID, 24MD, 48, 55, 56, 57, 58, 61, 87, 87A, 94, 223, 224, 225, 227, 238, 253; Native Title Amendment Act 1998 (Cth); Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) regs 3, 7, 8, 8A, 9; Trustee Act 1936 (SA) ss 4, 36, 58, 59B, 59C, 60, 67, 84B, 84C, 84D, 84E, 84F; Trustee Regulations 2011 (SA) reg 5, referred to.

Anthony R Cant v Kirby [2011] NSWSC 1193; Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council (2006) 203 FLR 394; Groote Eylandt Aboriginal Trust Incorporated v Deloitte Touche Tohmatsu (No 2) (2017) 169 NTR 1; Shire of Derby-West Kimberley v Yungngora Association Inc [2007] WASCA 233, distinguished.
Avanes v Marshall (2007) 68 NSWLR 595; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405; Re Compton [1945] 1 Ch 123; Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484; Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; Spellson v George (1987) 11 NSWLR 300; Trustees of the Kean Memorial Trust Fund v Attorney-General (SA) (2003) 86 SASR 449; Walmbaar Aboriginal Corporation v State of Queensland (2009) 177 FCR 42; Webster v Murray Goulburn Co-Operative Co Ltd (No 3) [2018] FCA 990, discussed.

Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197; Aboriginal Housing Office v Jacky [2022] NSWSC 916; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359; Adnyamathanha People v State of South Australia [2003] FCA 211; Adnyamathanha Traditional Lands Association & Others v Rangelea Holdings Pty Ltd [2023] SASC 51; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353; Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; Aid/Watch Inc v FCT (2010) 241 CLR 539; AIT Investments Group Pty Ltd v Markham Property Fund (No 2) Pty Ltd [2015] NSWSC 216; Akiba v The Commonwealth (2013) 250 CLR 209; Alice Springs Town Council v Mpweteyerre Aboriginal Corp & Ors (1997) 115 NTR 25; Attorney-General v Eastlake (1853) 11 Hare 205; Attorney-General (NSW) v Perpetual Trustee Co Ltd (1940) 63 CLR 209; Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Baptist Churches of South Australia v Attorney-General (SA) [2018] SASC 14; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622; Bond v Ramsay (1993) 27 ATR 479; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Breen v Williams (1996) 186 CLR 71; Byrnes v Kendle (2011) 243 CLR 253; Cant (liquidator of Billa Downs Aboriginal Corporation (in liq)) v Kirby [2011] NSWSC 1193; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Colton v Hunter [2009] SASC 299; Commissioner of Taxation (Cth) v Bargwanna (2012) 244 CLR 655; Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531; Commonwealth v Yunupingu [2025] HCA 6; Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168; Danbol Pty Ltd v Swiss Re International SE [2020] VSCA 274; Davies v Perpetual Trustee Co Ltd [1959] AC 439; Dingle v Turner [1972] AC 601; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; Gibson v Rivers-McCombs [2014] FCA 144; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; Hancock v Reinhart (2015) 13 ASTLR 1; Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; Hunter v Colton [2009] SASC 129; In Re Compton [1945] 1 Ch 123; In re Scarisbrick [1951] Ch 622; Kauter v Hilton (1953) 90 CLR 86; Kayler Thomson v Colonial First State Investments Ltd (No 2) [2021] FCA 854; Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; Latimer v Commissioner of Inland Revenue (NZ) [2004] 1 WLR 1466; Mabo v Queensland (No 2) (1992) 175 CLR 1; McDonald v Ellis (2007) 72 NSWLR 605; McPhail v Doulton [1971] AC 424; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Mercanti v Mercanti [2014] WASC 64; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109; Murray v Schreuder (2009) 1 ASTLR 340; Northern Territory v Griffiths (2019) 269 CLR 1; Nunawading Shire v Adult Deaf & Dumb Society of Victoria (1921) 29 CLR 98; Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337; Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297; O’Rourke v Darbishire [1920] AC 581; Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; Peat v Walsh [1965] Ch 594; Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89; Queensland v Congoo (2015) 256 CLR 239; Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989; Re Cowin (1886) 33 Ch D 179; Re Fairbairn (deceased) [1967] VR 633; Re Income Tax Acts [No 1] [1930] VLR 211; Re Gillespie (dec’d) [1965] VR 402; Re Maguire (deceased) [2010] 2 NZLR 845; Re Mills (1981) 27 SASR 200; Moon v London County Council [1931] AC 151; Re Muir (dec’d) [1964] VR 529; Re Londonderry’s Settlement [1965] 1 Ch 918; Re Scarisbrick's Will Trusts [1951] Ch 622; Re Simersall; Blackwell v Bray (1992) 35 FCR 584; Retail Employees Superannuation Pty Ltd v Pain (2016) 139 SASR 401; R (Independent Schools Council) v Charity Commission for England and Wales [2012] Ch 214; Robinson v Stuart (1891) 12 LR (NSW) Eq 47; Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159; Schreuder v Murray (No 2) (2009) 41 WAR 169; Scottish Burial Reform and Cremation Society v Glasgow Corporation [1968] AC 138; Silkman v Shakespeare Haney Securities Ltd (2011) 8 ASTLR 117; Smorgon v ES Group Operations Pty Ltd (2021) 64 VR 146; South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation [2017] SASC 127; South Australian Employers’ Chamber of Commerce & Industry Inc v Commissioner of State Taxation (2019) 135 SASR 64; Stratton v Simpson (1970) 125 CLR 138; Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315; TG Bullen Nominees v Bullen [2024] SASC 95; Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488; Vancouver Society of Immigrant and Visible Minority Women v Minister of National Revenue 1999 CanLII 704; Verge v Somerville [1924] AC 496; Wang v Cai [2021] NSWSC 1162; Western Australia v Brown (2014) 253 CLR 507; Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373; Western Australia v Ward (2002) 213 CLR 1; Whitworth Street Estates Ltd v Miller [1970] AC 583; Wik Peoples v Queensland (1996) 187 CLR 1; Wright v Stevens [2018] NSWSC 548; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; Yungngora Association [2007] WASCA 233, considered.

RANGELEA HOLDINGS PTY LTD v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION & ORS
[2025] SASCA 32

Court of Appeal – Civil: Livesey P, Bleby and David JJA

THE COURT:

Introduction

1. The Adnyamathanha people were first recorded as living in the region of the Flinders Ranges in South Australia during the nineteenth century, but they have maintained a connection with the land from a time long before British settlement in South Australia in 1836.  This connection with the Adnyamathanha land was an important element of the native title determination made by the Federal Court in favour of the Adnyamathanha people in 2009.[1] 

   [1]    Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358 (Mansfield J). Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (Mansfield J).

2. Disputes have arisen concerning the entities established to represent the interests of the Adnyamathanha people, including in connection with the receipt and management of monies received from native title mining agreements.  The evidence before the primary judge included a settlement deed which resolved some of the disputes and led to appearances in the Federal Court and the payment into court of monies received under a native title mining agreement.  The settlement terms included that the monies would be paid into a trust established to receive all “Royalty Payments” from native title mining agreements.[2]

   [2]    Trial tender book, item 4, page 29 and following.

3. Since then, the parties to this appeal have fallen into dispute over whether the appellant trustee, Rangelea Holdings Pty Ltd (Rangelea) should be required to provide trust documents and be subjected to the appointment of an inspector for the purposes of reviewing the administration of the trust through which those monies are received, managed and distributed. 

4. Rangelea is the trustee of the Adnyamathanha Master Trust (the Trust), settled by a deed dated 22 July 2003 (the Trust Deed).[3] The Trust Deed confers a discretion on Rangelea to make distributions to those named as members of various traditional owner “Sub-Groups” set out in a schedule to the Trust Deed.

   [3]     And referred to in the settlement deed, trial tender book, item 4, page 32.

5. The first respondent is the Adnyamathanha Traditional Lands Association (ATLA), an Aboriginal and Torres Strait Islander corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act).  ATLA is also an agent prescribed body corporate and a registered native title body corporate under the Native Title Act 1993 (Cth) (the Native Title Act), and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the Native Title PBC Regulations).

6. Following the determination of native title in 2009 in favour of the Adnyamathanha people, ATLA was bound by s 57(3) of the Native Title Act to perform any functions conferred under that Act, together with any further functions conferred by the Native Title PBC Regulations. By reg 7, ATLA assumed the function of acting as the agent of the “common law holders” concerning matters relating to their native title, as well as the function of managing the rights and interests of the common law holders as authorised by them.

7. In accordance with these arrangements, ATLA became the authorised agent and representative of the common law holders, as provided for by s 57(2) of the Native Title Act and the 2021 ATLA “Rule Book”.[4] 

   [4] Being ATLA’s “internal governance rules”, see the 2021 ATLA Rule Book, preamble and cl 3.1(1). See also s 29-15(1)(c) of the CATSI Act.

8. For the purposes of s 58 of the Native Title Act, reg 7(1)(c) the Native Title PBC Regulations stipulates that ATLA’s agency extended to matters “in relation to native title rights and interests of common law holders”, including holding “in trust money connected with the native title rights and interests”, such as payments “received as compensation or otherwise related to” their native title rights and interests.[5]

   [5]     And the 2021 Rule Book, see cll 3.1(1), (2) and (3) and Sch 2.

9. The native title mining agreements entered into by ATLA record that ATLA directed that the payments or royalties due to ATLA from the mining companies were to be paid to the Trust.[6]

   [6]     The native title mining agreement with ATLA, being the Beverley 2010 Agreement, dated 12 May 2010 (with Heathgate Resources), cl 12.1, AB 224; and the Four Mile Native Title Mining Agreement, dated 12 May 2010 (with Quasar Resources), cl 12.1, AB 267.

10. The second, third and fourth respondents (the respondents) are Adnyamathanha people who are “common law holders” of native title in Adnyamathanha land, as defined by s 56(2)(a) of the Native Title Act and Schedule 2 of the 2021 ATLA Rule Book.  They are also members of a Sub-Group of traditional owners identified in the Schedule to the Trust Deed.  Their names appear on the Traditional Owners Register, which is required to be maintained pursuant to the Trust Deed. 

1. Though the appellant disputes it, they also claim to be beneficiaries of the Trust.  That is to say, they say that they are people whom it is intended should benefit and receive payments from the Trust.

2. ATLA is currently under “special administration” pursuant to a determination made by the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) under s 487-1 of the CATSI Act, as extended from time to time.  Mr Peter McQuoid (Mr McQuoid) was first appointed special administrator of ATLA (Special Administrator) on 17 April 2021. 

3. On appointment, Mr McQuoid became responsible for the conduct of the affairs of, and able to exercise any powers belonging to, ATLA.  He must answer to, as well as report to, the Registrar regarding his conduct of the administration.  He aims to restore ATLA to “financial and organisational health” so that control can be returned to the common law holders.[7]

   [7]     Second McQuoid affidavit dated 22 December 2021, paragraph 6, AB 2113.

4. These reasons are set out as follows:

   The Rangelea appeal and the notice of contentions

   Disposition of the appeal

   Relevant background

   Rangelea’s contentions on appeal

   Appeal grounds 4 and 6 – ATLA’s standing

   The determination of appeal grounds 4 and 6

   Appeal grounds 2 and 3 – the Trust: a private discretionary trust or a charitable trust?

   The determination of appeal grounds 2 and 3

   Appeal ground 7 – Was there was a basis for the appointment of an inspector?

   The determination of appeal ground 7

   The notice of alternative contentions

   Conclusion

   The Rangelea appeal and the notice of contentions

5. Rangelea has appealed against the orders made by the primary judge which permitted ATLA and the respondents to obtain access to certain trust documents regarding the administration of the Trust.[8]  These were granted on the basis that they had satisfied various statutory and general law criteria concerning access to trust documents.  In so far as the application was based on statute, the respondents relied upon provisions in the Trustee Act 1936 (SA) (the Trustee Act).[9] 

   [8]     Adnyamathanha Traditional Lands Association & Others v Rangelea Holdings Pty Ltd [2023] SASC 51 (Kourakis CJ) (Reasons).

   [9]     Principally, though not exclusively, the Trustee Act, ss 84B and 84C, as well as ss 60 and 67, in the event that the Trust was properly to be regarded as a charitable trust.

6. The primary judge also appointed an inspector to investigate and report on the administration of the Trust.[10]

   [10]   Pursuant to the Trustee Act, s 84C.

7. In seeking to set aside these orders, Rangelea contended that ATLA had no standing to seek relief (appeal grounds 4 and 6); that the primary judge erred in finding that the Trust was a private discretionary trust rather than a charitable trust, with the result that the respondents had no entitlement to the information sought (appeal grounds 2 and 3); and there was, in any event, no basis for the appointment of an inspector (appeal ground 7).[11]

   [11]   Appeal ground 5, which complained about the adoption of the 2021 Rule Book, was abandoned at the hearing of the appeal.

8. The appellant contended that the appeal should be allowed, and the applications made by ATLA and the respondents should be dismissed.

9. By a notice of alternative contentions, ATLA and the respondents submitted:

   1.that the finding that the Trust was a private discretionary trust was open solely by reference to the terms of the Trust Deed (alternative contention 1);

   2.that relief under the Trustee Act under ss 84B and 84C was open even if the Trust was a charitable trust (alternative contention 2); and

   3.the appointment of an inspector was supported by the desirability of enabling the Special Administrator to complete his report to the common law holders regarding the administration of the native title compensation paid into the Trust, as well as the means by which to appropriately address the significant disputation regarding the administration of the Trust and the monies paid to it (alternative contention 3).

   Disposition of the appeal

10. For the reasons that follow, the primary judge made no material error in connection with the findings that ATLA had standing, the Trust is a private discretionary trust and not a charitable trust, and the respondents as beneficiaries had statutory and general law rights to seek trust documents and records, and statutory rights to seek the appointment of an inspector.  There was a proper basis for the appointment of an inspector. 

11. It follows that the appeal should be dismissed.

    Relevant background

12. There have been disputes amongst the Adnyamathanha people in connection with native title claims for over twenty years.

13. On 18 March 2003, Mansfield J delivered reasons for judgment which recorded that the principal application before the Federal Court was an application or claim for the determination of native title by the Adnyamathanha people regarding land in the Flinders Ranges and surrounding areas, excluding the Flinders Ranges National Park.  That application represented an amalgamation of several earlier proceedings under the Native Title Act which had been instituted before the Native Title Amendment Act 1998 (Cth).

14. The earlier proceedings and the principal application were all made on behalf of the Adnyamathanha people.  Mansfield J recorded that Heathgate Resources Pty Ltd (Heathgate) proposed to carry out mining operations on part of the claim area and that one of the registered native title claimants, a Ms Anderson, had undertaken negotiations with Heathgate regarding the terms upon which it might do so.  An agreement resulted, which provided for certain payments including a six-monthly “royalty” payment.[12]

    [12]   Adnyamathanha People v State of South Australia [2003] FCA 211.

15. That agreement recognised that there were other native title claims affecting part of the claim area which Heathgate proposed to mine.  It was acknowledged by Ms Anderson that Heathgate intended to enter into agreements with other registered claimants.  Mansfield J referred to the Adnyamathanha Community Trust, provided for by deed dated 24 March 2000, the trustees of which included Ms Anderson.  The trustees had determined that it was appropriate to expend trust fund monies to pay the costs and expenses incurred in prosecuting the native title claim. 

16. Nonetheless, Mansfield J noted “some discord” amongst the nine native title applicants who had been joined as authorised persons to maintain the principal application.  Ms Anderson was separately represented but supported by, amongst others, Mr Gordon Coulthard.  Mr Vincent Coulthard and Mr Mark McKenzie were also separately represented. 

17. At that time, Mr Vincent Coulthard was Chair of ATLA, which had been incorporated on 12 February 2001 under the Aboriginal Councils and Associations Act 1976 (Cth). The purpose of ATLA was to benefit the community of Adnyamathanha people. The objects of ATLA included being a registered native title body to manage the native title rights and interests of the Adnyamathanha people, whether as claimed or as held following any determination of native title. These objects included holding on trust any monies (including monies received by way of compensation) payable in relation to the native title rights and interests of the Adnyamathanha people.

18. On 16 March 2001, ATLA resolved to direct its Chair to instruct its legal representatives to take all reasonable steps to restrain the mining companies from distributing funds to individual members of the Adnyamathanha people, because it wished to secure those payments for the benefit of the Adnyamathanha people as a communal group.[13] 

    [13]   Adnyamathanha People v State of South Australia [2003] FCA 211, [17] (Mansfield J).

19. This led to a Notice of Motion filed in the Federal Court on 21 August 2001, amended on 19 June 2002, seeking orders removing Ms Anderson as an applicant and trustee of the trust. 

20. After ATLA wrote to Heathgate on 15 January 2002, advising Heathgate about its resolution made on 16 March 2001, and threatening to call Heathgate to account if it paid any further royalties to Ms Anderson, Heathgate applied by interpleader summons to the District Court of South Australia on 13 February 2002.  Heathgate sought directions as to how it should continue to make payments under its agreement.  An interim order was made that Heathgate’s payments be paid to the District Court.  Subsequently, this order was vacated and payments were made into the Federal Court. 

21. On 19 June 2002, Mansfield J ordered that the royalty payments be paid into the Federal Court.  That order was made “as a matter of temporary practicality”.[14]

    [14]   Adnyamathanha People v State of South Australia [2003] FCA 211, [19] (Mansfield J).

22. By the time of the ruling made by Mansfield J in 2003, there were substantial funds in court.  Ms Anderson and others sought access to those funds to pay for legal representation to resist the application for her removal.  Mr Vincent Coulthard and others, as well as ATLA, were represented by the Aboriginal Legal Rights Movement.  They opposed any funds being used by Ms Anderson and others for the purpose of resisting the motion for removal.[15]  Mansfield J explained:[16]

    It is plain that the applicants in the principal proceeding are no longer a cohesive group.  There are at least three separate groups.  The evidence before me indicates that the Adnyamathanha People as a community may also be divided.  That remains to be seen.  Ms Anderson and Mr Anderson claim that the existing applicants are the proper and authorised applicants to maintain the principal applications and that ATLA is not authorised to represent, nor is it properly representing, the interests of the Adnyamathanha People.  They claim that the decision-making processes in ATLA are flawed, both procedurally by virtue of the way in which meetings have been conducted, and substantively because they do not represent decisions made as to who should be the authorised persons to maintain the current application for a determination of native title in accordance with s 251B of the [Native Title] Act.  Those allegations are of course disputed by Mr V Coulthard on behalf of ATLA and the putative substituted applicants.  Mr V Coulthard for his part makes significant allegations about the way in which Ms Anderson and the other trustees of the Trust have conducted the Trust and have applied the moneys received under it.

    [15]   Adnyamathanha People v State of South Australia [2003] FCA 211, [20] (Mansfield J).

    [16]   Adnyamathanha People v State of South Australia [2003] FCA 211, [24] (Mansfield J).

23. Justice Mansfield found that there was conflicting evidence on various matters, including the “rights and wrongs of the claim”, and he declined to interfere with the trustees of the trust in fulfilling their functions.  In the exercise of his discretion, Mansfield J proposed to allow the trustees of the trust access to the funds to meet the legal costs and expenses incurred by Ms Anderson and Mr Anderson.[17]

    [17]   Adnyamathanha People v State of South Australia [2003] FCA 211, [30] (Mansfield J).

24. By 22 July 2003, the settlement described at the outset of these reasons was effected and the Trust had been settled and Rangelea was appointed trustee.  The Trust was settled for the purposes of benefiting the traditional owners.  Under item 1 of the Schedule to the Trust Deed, the traditional owners were each identified by Sub-Group.  It will be necessary to return to the terms of the Trust Deed. 

25. Later, by orders made on 30 March 2009, Mansfield J approved the consent determination that there were native title rights and interests over various areas in the Flinders Ranges, including the area known as the Angepena Pastoral Station, pursuant to s 61 of the Native Title Act on behalf of specified Adnyamathanha people.[18]  The orders made by the court reflected an agreement with the State of South Australia that native title existed within certain parcels of land and that native title had been extinguished, at least partly, in other parts of the claim areas.  That agreement extended to the nature and extent of the native title rights and interests.

    [18]   Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358, [2]‑[3]; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359.

26. The application for determinations by consent had been made under ss 87 and 87A of the Native Title Act.  It is not presently necessary to go into detail about the findings made by Mansfield J regarding a range of matters such as “the relationship between the claim group’s society and the society in the determination area at sovereignty”, nor the continued use of Adnyamathanha language and the substantially uninterrupted observance of traditional laws and customs since sovereignty.[19]  His Honour found that there was contemporary evidence of various laws and customs, including the ongoing knowledge of muda (also mura) or Dreaming traditions, as well as of other matters, such as the traditional way to butcher and cook kangaroo.[20] 

    [19]   Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [27]-[28] (Mansfield J).

    [20]   Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [29]-[30] (Mansfield J).

27. Justice Mansfield was satisfied that the material relied on by the parties in support of the proposed consent determination adequately addressed the requirements of ss 223 and 225 of the Native Title Act,[21] as explained by the High Court in Members of theYorta Yorta Aboriginal Community v Victoria.[22]  His Honour concluded that the parties likely to be affected by the proposed consent determination had had sufficient access to independent legal representation, and that the State of South Australia had given appropriate consideration to the evidence and to the interests of the community generally when providing its consent.[23] 

    [21]   Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [35] (Mansfield J).

    [22]   Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.

    [23]   Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [36], citing Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109, [29].

28. Justice Mansfield recorded that the determination envisaged that native title was not to be held in trust,[24] and there was a timetable for ATLA to amend its constitution so that it could perform the role of a prescribed body corporate under s 57 of the Native Title Act.[25]  Order 6 defined the native title holders and order 7 identified the bundle of rights and interests which comprised native title.

    [24] Cf ss 55 and 56(1) of the Native Title Act.

    [25]   Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, [38].

29. Attached to the orders made by the court were very extensive annexures and schedules addressing matters such as the terms of the consent determination, the description and map of the determination area, the identification of the native title holders as well as their native title rights and interests, the nature and extent of other interests, as well as a table identifying in some detail the land excluded.

30. By May 2010, ATLA, as agent for the Adnyamathanha people, had entered into native title mining agreements with Heathgate and Quasar.[26]

    [26] Reasons, [4]-[5]. These were made under the Mining Act 1971 (SA) and one was known as the Beverley 2010 Agreement with Heathgate. A similar native title mining agreement was made with Quasar Resources Pty Ltd (Quasar).

31. These native title mining agreements were similar in form, acknowledging the validity of certain mining tenements, as well as agreeing to grant further tenements on condition that certain payments were made to the Trust.  By clause 12 these were termed “production payments”.  They were calculated, for example, on 2 per cent of the “Beverley Mine Gate Value”.  The payments were made semi‑annually in arrears, and at the same time as the royalty payments made to the State government under the Mining Act.  The primary judge recorded that these payments, also referred to as “royalty” payments, approximated $4 million per annum by 2020.[27] 

    [27] Reasons, [7].

32. Mr McQuoid’s evidence was that during 2020 more than $4 million had been paid into the Trust.[28]

    [28]   Second McQuoid affidavit dated 22 December 2021, paragraph 33, AB 2117.

33. The “Rule Book” earlier mentioned complies with the CATSI Act and identifies the native title holders, being the named living Aboriginal people who are descendants of named “apical ancestors”.[29]  The Rule Book describes ATLA as the registered native title body corporate, or RNTBC,[30] intended in each of the consent determinations made by Mansfield J as the intended Prescribed Body Corporate.[31]  The dictionary set out in Schedule 2 and the other schedules to the Rule Book form part of the Rule Book.  It will be necessary to return to some of the terms of the Rule Book including its objectives under clause 3, and its powers and duties under clause 4.  For present purposes, it is sufficient to observe that members must be at least 18 years, a person who is Aboriginal and identifies as Adnyamathanha, and one of the common law holders.[32]

    [29]   2021 Rule Book, preamble.

    [30]   2021 Rule Book, cll 1 and 2.

    [31]   2021 Rule Book, preamble.

    [32]   2021 Rule Book, cl 5.1.

34. In the period May to August 2021, ATLA (through Mr McQuoid), and each of the respondents, made separate written requests to Rangelea seeking access to inspect and make copies of trust documents concerning the administration of the Trust covering the period 2018 to 2021.  Townsends, the solicitors for Rangelea, refused each request.  So far as ATLA was concerned, Rangelea maintained:

    1.ATLA was neither a member of Rangelea nor an “eligible beneficiary” of the Trust;

    2.Rangelea had no financial role or interest in the affairs of ATLA;

    3.neither ATLA nor the Special Administrator had any power to seek access to the trust documents of the Trust, and Mr McQuoid had no investigative powers concerning third parties and was not authorised to look into the affairs of Rangelea or the Trust; and

    4.any attempt by Mr McQuoid to investigate the affairs of Rangelea exceeded his statutory powers as Special Administrator.

35. So far as the requests made by each respondent were concerned, Rangelea refused access on the grounds that:

    1.the Trust was a charitable trust.  This was apparently the first time this assertion had been made;

    2.the Trust had no beneficiaries;

    3.section 84B of the Trustee Act did not apply to the Trust;

    4.the respondents were not permitted by s 84B of the Trustee Act to make a request for documents; and

    5.the provisions of the Trustee Act did not apply to the Trust, and they were not entitled to have access to the documents of the Trust.

36. Before this Court, ATLA and the respondents contended that Rangelea appeared to be contending that no-one, and certainly neither ATLA nor the respondents, was permitted to access any documents relating to the administration of the Trust, and it was unclear if anyone other than the Trustee was permitted to have access to trust documents.

37. ATLA and the respondents applied for relief from the Supreme Court, relying on the following grounds as alternatives:

    1.Pursuant to the provisions of Part 5A of the Trustee Act (“Records to be kept by trustees and investigations”) namely ss 84B and 84C;

    2.Under the general law; and

    3.Only in the event that a determination was made that the Trust is a charitable trust, pursuant to Part 4 of the Trustee Act (“Charitable trusts procedure”), being ss 60 and 67. Whilst service on the Attorney-General is required in connection with relief under Part 4, it was common ground that no formal service had been effected.

1. By late May 2021, Mr McQuoid had written to Heathgate and Quasar asking that payments to the Trust be stopped. These payments were initially suspended before being paid into the Supreme Court.[33]  The correspondence from Townsends showed that Rangelea was concerned that the conduct of Mr McQuoid had brought about a breach of the native title mining agreements because payments were not being made as agreed.[34]  On appeal Rangelea submitted that Mr McQuoid wanted to coerce Rangelea into compliance with his demands.

   [33]   See, for example, the Notice of Payment into Court in the amount of approximately $1.46 million, AB 2102.

   [34]   See, for example, correspondence from Townsends Solicitors dated 28 June 2021, AB 1282; the notices of payment into court from AB 2098.

2. Affidavit evidence filed in late 2021 from Mr McQuoid, and various Adnyamathanha people, outlined their concerns about the management of Rangelea and the administration of the Trust.  They spoke about the cessation of their receipt of royalty payments in around 2014, what they regarded as unequal payments thereafter, and the ongoing requests that they had been making for records of royalty monies received by the Trust. 

3. In his second affidavit dated 22 December 2021, Mr McQuoid referred to the appointment of former special administrators of ATLA which ended in April 2021, after which he was appointed, initially for a few days, but his period of appointment was extended from time to time.  When describing the operation of ATLA and Rangelea, he described Mr Vincent Coulthard as “the dominant individual behind both entities”.[35]

   [35]   Second McQuoid affidavit dated 22 December 2021, paragraph 13, AB 2115.

4. Mr McQuoid described concerns regarding a “lack of transparency surrounding the management and distribution of the native title compensation monies” paid pursuant to the native title mining agreements entered into between ATLA and Heathgate and Quasar.[36]  Mr McQuoid explained that the monies were paid by the mining companies directly to the Trust.  Mr McQuoid said that he had become aware that there had been draft resolutions circulated by the former special administrators by which it was proposed to remove Rangelea as trustee but these resolutions had never been put to a vote.  According to Mr McQuoid:[37]

   My own view was that the preparation of those proposed resolutions and their being put to the ATLA members was not an appropriate course of action for the special administrator of ATLA to pursue.  Rather, I took the view that the more prudent course, acting consistently with the special administrator’s statutory duties and obligations, was to seek out and obtain all relevant information concerning the administration of the Master Trust so as to provide the Common Law Holders with greater transparency on those matters.  That would then enable the Common Law Holders to be appropriately informed as to the management of their native title compensation monies before making any decision in relation to the future administration of ATLA.

   [36]   Second McQuoid affidavit dated 22 December 2021, paragraph 25, AB 2116.

   [37]   Second McQuoid affidavit dated 22 December 2021, paragraph 28, AB 2116.

5. Mr McQuoid went on to explain that although he was aware that more than $4 million had been paid into the Trust during 2020 pursuant to the native title mining agreements, there was little to no information available to him or to the common law holders as to how much native title compensation monies had been received into the Trust nor how those monies had been administered or what had happened to them.[38]

   [38]   Second McQuoid affidavit dated 22 December 2021, paragraph 33, AB 2117.

6. Mr McQuoid explained that he decided to direct Heathgate and Quasar to temporarily suspend royalty payments because Rangelea had not been transparent and had refused to release any financial information as to how the payments had been allocated or used.  His purpose, he explained, was to protect the rights and interests of the common law holders.[39]

   [39]   Second McQuoid affidavit dated 22 December 2021, paragraph 36, AB 2117.

7. Finally, Mr McQuoid referred to the receipt by the Office of the Registrar of Indigenous Corporations (ORIC) of a number of complaints from Adnyamathanha people about Rangelea and its directors over a number of years.[40]  Some of these complaints had been forwarded to Federal Members of Parliament. 

   [40]   Second McQuoid affidavit dated 22 December 2021, paragraph 44, AB 2118.

8. In her affidavit dated 22 December 2021, the respondent Ms Sarah Taylor referred to the haphazard receipt of royalty payments following contact with her uncle, Mr Vincent Coulthard, as well as her request for access to trust records.  She explained that she was concerned that an ATLA newsletter described large payments being made by the mining companies but that she and other Adnyamathanha people had only been getting “scraps”.[41] 

   [41]   Affidavit of Sarah Taylor dated 22 December 2021, paragraphs 14-15, AB 2139.

9. Ms Taylor explained that some family members left the Sub-Group associated with Mr Vincent Coulthard and joined a different Sub-Group and, as a result, it became apparent that different Sub-Groups were getting different amounts and that, even within the same Sub-Group, people were getting different royalty payment amounts.[42]

   [42]   Affidavit of Sarah Taylor dated 22 December 2021, paragraphs 18, AB 2139.

10. In her affidavit of 23 December 2021, Ms Jillian Marsh, an Adnyamathanha woman and a member of the Yura community of the northern Flinders Ranges, referred to attendances made at ATLA meetings and requests made for records of royalty monies and being constantly told that “this was Rangelea business, not ATLA business”.[43] 

    [43]   Affidavit of Jillian Marsh dated 23 December 2021, paragraph 6, AB 2108.

11. In his affidavit dated 23 December 2021, the respondent Mr Reginald Wilton referred to correspondence with Townsend Lawyers, as well as the requests made from time to time to attend Rangelea meetings.  He said that they were told that these were only for directors and that what happened at them was “all confidential”.[44]  He explained that there were no meetings for the Trust.  He described not seeing any financial statements for any of the relevant entities and becoming frustrated because he “wasn’t getting paid properly”.[45]

    [44]   Affidavit of Reginald Wilton dated 23 December 2021, paragraph 16, AB 2144.

    [45]   Affidavit of Reginald Wilton dated 23 December 2021, paragraphs 12-21, AB 2144.

12. In his affidavit dated 22 December 2021, the respondent Mr Ivan McKenzie described receiving royalties, which he had “always received” but that people seemed to get paid “all different amounts”.[46]  Mr McKenzie said that the amounts he received varied.  On one occasion he received $6,000, whereas on another occasion he received $700, and this was without any contact from Mr Vincent Coulthard.  The monies just appeared in his bank account.  He thought that he was getting paid “pretty well compared to other people” but he wanted to “know why everyone doesn’t get paid the same”.[47]

    [46]   Affidavit of Ivan McKenzie dated 22 December 2021, paragraphs 4 and 5, AB 2149.

    [47]   Affidavit of Ivan McKenzie dated 22 December 2021, paragraphs 7-9, AB 2149.

13. Mr McKenzie spoke about attending a meeting convened by special administrators during which there were discussions about a lack of transparency concerning ATLA money, and that he wanted new administration.[48]

    [48]   Affidavit of Ivan McKenzie dated 22 December 2021, paragraph 15, AB 2150.

14. Mr McKenzie described going to see solicitors during 2007 and 2009 and trying to get an investigation into why there was secrecy surrounding the handling of the money, and why there was no explanation for why the payments were all different, but that his solicitors could not provide much help.[49]  According to Mr McKenzie:[50]

    I need to see fairness.  There is heaps of money being paid out by mining companies and why is it going to the claimants and then issued out?  Why can’t we get an organisation going where everyone gets an equal amount?

    I want to know more about how Rangelea has been managing the Master Trust and where the money’s been going.  We need more information about how the Rangelea directors have been managing things.

    I tried to take some action years ago when I went to see the lawyers, but nothing came of it.  I am really happy that we are starting to get somewhere now.

    [49]   Affidavit of Ivan McKenzie dated 22 December 2021, paragraph 22, AB 2150.

    [50]   Affidavit of Ivan McKenzie dated 22 December 2021, paragraphs 25-27, AB 2150-2151.

15. Mr McKenzie spoke of his concern that there may be people managing the Trust who were directly benefiting from it.  He said that he had seen Mr Vincent Coulthard interviewed on the ABC, and he was recorded as saying words to the effect that if people wanted information, “why don’t you just ask?”.  Mr McKenzie said, “Well, we are asking for information now and they won’t give it to us”.[51]

    [51]   Affidavit of Ivan McKenzie dated 22 December 2021, paragraph 35 and 36, AB 2151.

16. In his affidavit dated 24 January 2022, Mr Vincent Coulthard provided an extensive history of the Adnyamathanha people and their native title claims, and the establishment of ATLA and Rangelea.  He described the establishment of the Trust as well.  Representatives from each of the eight Sub-Groups representing the claimants for native title became the directors and shareholders of Rangelea.  He explained that every Adnyamathanha person can be a member of a Sub-Group, and that each Sub-Group has representation on the Board of Rangelea.[52]

    [52]   Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 40-42, AB 2158.

17. Mr Coulthard described concerns about expenditures during 2019, and a SAPOL investigation concerning the possibility of criminal activity.[53]  It would seem that it was soon after this that ORIC appointed special administrators to ATLA.

    [53]   Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 83-90, AB 2162.

18. Mr Coulthard then described the administration of the Trust since its inception in 2003, and he estimated the total number of common law holders at about 3,000, which was substantially more than the membership of ATLA, which was in the order of 900.[54]  Mr Coulthard described the appointment of special administrators and the concerns that soon developed despite a number of meetings.  According to Mr Coulthard, some of those who attended the meetings were not ATLA members nor even native title holders.[55]

    [54]   Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraph 119, AB 2164.

    [55]   Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraph 147, AB 2166.

19. Mr Coulthard described a further meeting conducted in Hawker in late November 2021 at which concerns were again aired regarding a lack of confidence in the special administrators.[56] 

    [56]   Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 155-164, AB 2167-2168.

20. Mr Coulthard described concerns about the conduct of Mr McQuoid as well as what he regarded as the offensive and unfounded allegations made against him in the affidavits filed with the Supreme Court.[57]

    [57]   Affidavit of Mr Vincent Coulthard dated 24 January 2022, paragraphs 165-171, AB 2168.

21. Apart from addressing the management of Rangelea, ATLA and the Trust in a general way, as well as the receipt of the requests for information, Mr Coulthard did not attempt to answer those requests nor provide any detailed information.

    Rangelea’s contentions on appeal

22. Whilst accepting that the appeal appeared complex, Rangelea submitted that the appeal devolved to two fundamental questions.  The first was whether ATLA could proceed at all without “consultation and consent” from the common law holders.  This was said to be essential to ATLA’s authority as agent.  It was submitted that there had been no consultation with the common law holders, and they had not provided their consent to the request for documents and the appointment of an inspector, nor to the commencement of Supreme Court proceedings seeking relief.  The absence of consultation and consent appeared to be common ground. 

23. Rangelea submitted that three things flowed from the absence of consultation and consent.  First, all of ATLA’s claims must fail and the orders made by the primary judge on 27 April 2023 must be set aside.  Secondly, all of the alternative contentions concerning ATLA must also fail.  Finally, the appeal against ATLA must therefore succeed on all of the pursued grounds. 

24. Rangelea submitted that the second fundamental question at the heart of the appeal was whether the Trust was a charitable trust. If the Trust was a charitable trust, then the respondents are not beneficiaries of a private discretionary trust as the primary judge found. Rangelea submitted that the respondents had no rights pursuant to ss 84B and 84C of the Trustee Act, because they are not relevant “beneficiaries” for the purposes of those provisions. 

25. Rangelea submitted that the respondents had no rights under s 60 of the Trustee Act either, because the pre-conditions for an application to be made concerning a charitable trust under that provision had not been established. In particular, it had not been established that there was “a breach of any trust or supposed breach of any trust created for charitable purposes”, as s 60(1) required. In addition, for the alternative under s 60(1), Rangelea submitted that it had not been demonstrated that a direction or order of the Supreme Court was “necessary for the administration or management or to the advantage or benefit” of the Trust.

26. Speaking generally, Rangelea did not challenge any factual finding made by the primary judge.  It should also be noted that Rangelea put no argument against the scope of relief, or the documents sought, if its arguments failed.

27. Rangelea developed its submissions by reference to its grounds of appeal.  It is convenient to address those submissions, the grounds of appeal, and the findings of the primary judge to which they relate, in the order in which they were addressed on the hearing of this appeal.

    Appeal grounds 4 and 6 – ATLA’s standing

28. The finding by the primary judge that ATLA was authorised to commence proceedings as agent for the common law holders without first consulting them and obtaining their consent is set out in the following passage:[58]

    I find that ATLA is authorised pursuant to regulation 8 of the [Native Title] PBC Regulations to bring this application as agent of the common law holders in order to obtain information on the administration of the … Trust to put before the common law holders so that they might make informed decisions about the assignment of income derived from their native title rights and interests. ATLA has standing to bring this application for an order under the general law that it be permitted to inspect and copy trust account records, by reason of its statutory functions and status as agent of both those common law holders who are beneficiaries and those who are not. I will make orders to that effect in favour of ATLA and the Adnyamathanha applicants.

    [58] Reasons, [14].

29. Later, after considering the terms of the Native Title PBC Regulations, the primary judge found that reg 7(1)(a) authorised prescribed registered native title bodies corporate to act as the agent of common law holders without requiring consultation or consent unless that was otherwise required by those regulations.[59]

    [59] Reasons, [37].

30. The primary judge held that he would make an order for the inspection of the trust records prescribed by reg 5 of the Trustee Regulations in favour of ATLA for two reasons.[60]  The first reason was that ATLA had a statutory function as agent for the common law holders who are beneficiaries.  In consequence, ATLA should be accorded the standing of a beneficiary to seek an order for the purposes of providing that information to its principals.  Though there was evidence that a number of ATLA’s members and common law holders (who were also beneficiaries) opposed the application, that was not a reason to decline to make the orders.  The primary judge was not satisfied that this opposition was “universal or fully informed”.[61]

    [60] Reasons, [254]. Although the primary judge referred to reg 5B, in context his Honour must have meant reg 5.

    [61] Reasons, [254].

31. The second reason for making the order was that the primary judge accorded ATLA standing to bring the application in its capacity as the holder of the native title rights and interests from which the income of the Trust is derived. In that capacity, the primary judge accorded ATLA an entitlement under the general law to access the trust records prescribed by reg 5 of the Trustee Regulations.  The primary judge found that ATLA was entitled to know how Rangelea had distributed the income ATLA had assigned to it so that it might consider whether that should continue.[62]

    [62] Reasons, [254].

32. Rangelea accepted that ATLA was a prescribed body corporate agent for the purposes of the Native Title Act.  As Rangelea submitted, ATLA existed to enable the common law holders to advance claims, defend claims and to negotiate.  It had no independent objects but those of the common law holders.  It was not a member of Rangelea nor was it an eligible beneficiary of the trust.  In addition, Rangelea was not a member of ATLA. 

33. Rangelea submitted that the Federal Court had recognised that the native title of the common law holders was held by ATLA “but not as a trustee”.  Rangelea submitted that the primary judge had failed to give that matter the legal significance that it required.[63] 

    [63]   See Reasons, [34]; Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359, Annexure C [16] (Mansfield J), AB 205.

34. Because this was not a case where the native title was to be held in trust,[64] s 57(2) of the Native Title Act applied. It was that provision under which ATLA was appointed, and by s 57(3) it was required to perform any functions given to it as a registered native title body corporate under the Act as well as any functions given to it under the Native Title PBC Regulations. Under reg 8(1) of those regulations, ATLA was required, for any “native title decision”, to “consult, and obtain consent in relation to the decision” in accordance with regs 8 or 8A “before making a native title decision”.

    [64]   Cf Native Title Act, s 56(1).

35. As will be seen, the application and operation of the relevant regulations depends to a significant extent on what is meant by a “native title decision” under the Native Title PBC Regulations.  Rangelea referred to, without addressing in any detail, the discussion about consultation with the common law holders of native title in the textbook ‘Australian Native Title Law’.[65] 

    [65]   Melissa Perry and Stephen Lloyd, ‘Australian Native Title Law’, 2^nd ed, Lawbook Co 2018, [57.30].

36. Before addressing the balance of Rangelea’s submissions concerning these grounds, it is necessary to address the relevant provisions and regulations to which it referred in argument.

37. By s 253 of the Native Title Act, the term “common law holders” has the meaning given by s 56: by s 56(2), reference is made to “the native title holders” as the “common law holders” of native title. This is in a context where the Federal Court may require a representative to indicate whether the common law holders intend to have their native title held in trust. Alternatively, under ss 56(2), 57(2) and 57(3), if the common law holders do not nominate a trustee, the Federal Court must determine that the rights and interests are to be held by the common law holders, and functions are conferred on a nominated prescribed body corporate, as happened in this case.

38. By s 224 of the Native Title Act, the term “native title holder” is defined to mean the prescribed body corporate who holds native title on trust, or those persons who hold native title:

    224    Native title holder

    The expression native title holder, in relation to native title, means:

    (a)if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

    (b)in any other case—the person or persons who hold the native title.

1. By s 253 of the Native Title Act, the term “agent prescribed body corporate” is relevantly defined as follows:

   agent prescribed body corporate, in relation to native title rights and interests, means:

   (a)a prescribed body corporate that is determined under section 57 in relation to the native title; or

   (b)a prescribed body corporate that, under regulations made for the purposes of paragraph 56(4)(e), is to perform the functions referred to in subsection 57(3) in relation to the native title;

   …

2. Section 57 of the Native Title Act provides, by s 57(2), for the arrangements which must be implemented where a prescribed body corporate does not hold native title on trust and, after becoming a registered native title body corporate, it is to perform the functions set out in s 57(3):

   57      Determination of prescribed body corporate etc.

   Where trustee

   (1) If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform:

   (a) any other functions given to it as a registered native title body corporate under particular provisions of this Act; and

   (b) any functions given to it as a registered native title body corporate under the regulations (see section 58).

   Where not trustee

   (2) If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):

   (a) first, it must request a representative of the common law holders to:

   (i) nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and

   (ii) include with the nomination the written consent of the body corporate;

   (b) secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;

   (c) thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions.

   Functions where not trustee

   (3) After becoming a registered native title body corporate, the body must perform:

   (a) any functions given to it as a registered native title body corporate under particular provisions of this Act; and

   (b) any functions given to it under the regulations (see section 58).

3. Section 58 provides for the making of regulations concerning a registered native title body corporate (see s 57(3)(b) above):

   58      Functions under regulations

   The regulations may make provision for a registered native title body corporate to do all or any of the following:

   (a)if it does not hold the native title on trust under section 56, or regulations made for the purposes of that section—to act as agent or representative of the common law holders in respect of matters relating to the native title;

   (b)to perform in a specified way any functions in relation to the native title given to it under other provisions of this Act;

   (ba)to perform in a specified way any functions, in relation to a compensation application, given to it under other provisions of this Act;

   (c)to hold on trust, or perform functions in relation to, compensation under this Act;

   (d)to consult with, and act in accordance with the directions of, the common law holders, or persons entitled to compensation under this Act, in performing any of its functions;

   (e)if it does not hold the native title on trust—to enter into agreements in relation to the native title that are binding on the common law holders, provided the agreements have been made in accordance with processes set out in the regulations;

   (f)to perform any other functions in relation to the native title, or compensation under this Act.

4. As can be seen from s 58(a) above, and reg 7(1)(a) below, the Native Title Act and the Native Title PBC Regulations assume the authority of a registered native title body corporate to act as “the agent or representative” of the common law holders, in respect of “matters relating to the native title” of those common law holders. 

5. Regulations 7, 8, 8A and 9 of the Native Title PBC Regulations are as follows, noting that Rangelea gave particular emphasis to reg 8(1), which stipulates the requirement to “consult and obtain consent”:

   7      Functions of registered native title body corporate not acting as trustee

   Body corporate that does not hold native title rights and interests

   (1) For the purposes of section 58 of the Act, a registered native title body corporate that is an agent prescribed body corporate in relation to native title rights and interests of common law holders has the following functions:

   (a) to act as agent of the common law holders in respect of matters relating to the native title;

   (b) to manage the rights and interests of the common law holders as authorised by the common law holders;

   (c) to hold in trust money connected with the native title rights and interests (including payments received as compensation or otherwise related to those rights and interests);

   (d) to invest or otherwise apply the money held in trust as directed by the common law holders;

   (e) to consult with the common law holders in accordance with regulations 8, 8A and 8B;

   (f) to perform any other function relating to those rights and interests as directed by the common law holders.

   Body corporate that makes compensation application in relation to extinguished area

   (1A) For the purposes of section 58 of the Act, a registered native title body corporate that:

   (a)     does not hold native title rights and interests in trust; and

   (b) makes a compensation application on behalf of all the persons who claim to be entitled to the compensation;

   has the following functions:

   (c) to consult with the persons who claim to be entitled to the compensation in accordance with regulation 8B;

   (d) to hold in trust payments received as compensation;

   (e) to invest or otherwise apply the money held in trust as directed by the persons entitled to the compensation;

   (f) to perform any other function relating to the compensation as directed by the persons entitled to the compensation.

   General

   (2)     Without limiting subregulation (1) or (1A), in order to perform its functions, a registered native title body corporate may, on behalf of the common law holders or persons entitled to, or who claim to be entitled to, the compensation:

   (a) consult other persons or bodies; and

   (b) enter into agreements; and

   (c) exercise procedural rights; and

   (d) accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders or persons entitled to, or who claim to be entitled to, the compensation.

   Note: An agent prescribed body corporate is also subject to regulations 8 to 10.

   8Consultation with, and consent of, common law holders in relation to native title decisions

   Consultation and consent required before a native title decision is made

   (1)     Before making a native title decision, a prescribed body corporate that:

   (a) holds native title rights and interests in trust for the common law holders; or

   (b) is an agent prescribed body corporate that has become a registered native title body corporate;

   must consult and obtain consent in relation to the decision:

   (c) if the decision is a high level decision—in accordance with this regulation; or

   (d) if the decision is a low level decision—in accordance with this regulation or regulation 8A.

   No need to consult or obtain consent in relation to a standing instructions decision if covered by approval

   (2)     However, the prescribed body corporate does not need to consult and obtain consent in relation to a standing instructions decision covered by an approval under subregulation (8).

   Consultation and consent processes

   (3)     If there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of:

   (a) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the proposed native title decision would have an effect; or

   (b) in any other case—the common law holders;

   must be followed in relation to the giving of the consent mentioned in subregulation (1), the consent must be given in accordance with that process.

   (4)     If subregulation (3) does not apply, the consent must be given in accordance with the process of decision-making agreed to, or adopted, for the proposed native title decision, or for decisions of the same kind as that decision, by:

   (a) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the proposed native title decision would have an effect; or

   (b) in any other case—the common law holders.

   Effect of failure to consult or obtain consent

   (6)     An agreement that gives effect to a native title decision of a prescribed body corporate has no effect to the extent that it applies to the decision, if the body corporate does not comply with this regulation.

   (7)     Subregulation (6) does not apply to an indigenous land use agreement of a kind described in section 24EB or 24EBA of the Act.

   Approval for standing instructions decisions

   (8)     A standing instructions decision is covered by an approval under this subregulation if:

   (a) the prescribed body corporate has the approval of the following to make decisions of that kind without needing to consult and obtain further consent:

   (i) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the decision would have an effect;

   (ii) in any other case—the common law holders; and

   (b) any conditions imposed by the common law holders mentioned in subparagraph (a)(i) or (ii) on the approval have been met in relation to the decision.

   (9)     The common law holders mentioned in subparagraph (8)(a)(i) or (ii) may give or revoke an approval, and impose, vary or revoke conditions on an approval:

   (a) if the approval relates to low level decisions—using a relevant consultation process in the constitution of the prescribed body corporate; or

   (b) in any case:

   (i) if there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of those common law holders, must be followed in relation to giving the approval—in accordance with that process; or

   (ii) if subparagraph (i) does not apply—in accordance with the process of decision-making agreed to, or adopted, by those common law holders in relation to giving the approval.

   8A Alternative consultation processes in relation to native title decisions

   (1)     This regulation applies to the making of a low level decision if the prescribed body corporate has in its constitution one or more consultation processes to which the following have consented:

   (a) if the native title determination in relation to the prescribed body corporate identifies classes of common law holders—the classes of common law holders on whom the decision would have an effect;

   (b) in any other case—the common law holders.

   (2)     Before making a native title decision, the prescribed body corporate must consult and obtain consent in relation to the decision using the relevant consultation process in its constitution.

   9 Certificate in relation to consultation and consent

   (1)     As soon as practicable after:

   (a) a native title decision is made by a prescribed body corporate that:

   (i) holds native title rights and interests in trust for the common law holders; or

   (ii) is an agent prescribed body corporate that has become a registered native title body corporate; or

   (b) a registered native title body corporate decides to make a compensation application;

   the body corporate must prepare a certificate in writing.

   (2)     The certificate must certify that:

   (a) for a high level decision other than a standing instructions decision—the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8; or

   (b) for a high level decision that is a standing instructions decision:

   (i) if the decision is covered by an approval under subregulation 8(8)—the decision is of that kind; or

   (ii) in any case—the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8; or

   (c) for a low level decision:

   (i) if the decision is covered by an approval under subregulation 8(8)—the decision is of that kind; or

   (ii) in any case—the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8 or 8A; or

   (d) for a decision to make a compensation application—the body corporate has consulted and obtained consent in relation to the making of the compensation application in accordance with regulation 8B.

   Note:The Registrar of Aboriginal and Torres Strait Islander Corporations has functions in relation to certificates prepared under this regulation: see section 55A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017.

   (3)     The certificate must include the following:

   (a) the date of the certificate;

   (b) details of the process of making the decision;

   (c) details (including names) of the persons who participated in the process of making the decision;

   (d) if the certificate is of a kind mentioned in subparagraph (2)(b)(i) or (c)(i)—details of the process of approval under subregulation 8(8);

   (e) if paragraph (d) does not apply—details of the consultation and consent process.

   (4)     The certificate must be:

   (a) executed by the body corporate in accordance with subsection 99-5(1) or (2) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or

   (b) signed by the chief executive officer of the body corporate.

   (5)     The body corporate may collect (within the meaning of the Privacy Act 1988) personal information (within the meaning of that Act) about common law holders or persons who claim to be entitled to compensation for the purposes of preparing a certificate.

   (6)     A certificate prepared in accordance with this regulation in relation to a native title decision is prima facie evidence that the body corporate has consulted and obtained consent in relation to the decision as required by regulation 8.

   (7)     A certificate prepared in accordance with this regulation in relation to a decision to make a compensation application is prima facie evidence that the body corporate has consulted and obtained consent in relation to the making of the compensation application as required by regulation 8B.

6. The operation of reg 8(1) is predicated on the prospect of a “native title decision”, which is defined in reg 3(1) of the Native Title PBC Regulations as follows:

   native title decision means a decision:

   (a)      to surrender native title rights and interests in relation to land or waters; or

   (b) to enter an indigenous land use agreement under Subdivision B, C or D of Division 3 of Part 2 of the Act or an agreement under Subdivision P (right to negotiate) of that Division; or

   (c) to allow a person who is not a common law holder, or a class of persons who are not common law holders, to become members of a prescribed body corporate; or

   (d) to include one or more consultation processes in the constitution of a prescribed body corporate; or

   (e) to do, or to agree to, any act that would otherwise affect the native title rights or interests of the common law holders (other than a decision to make a compensation application).

7. In Gibson v Rivers-McCombs, this statutory and regulatory scheme, as well as the significance of a certificate under reg 9, were explained:[66]

   Regulations 7, 8 and 9 of the PBC regulations and reg 6 of the ILUA regulations are parts of a quite complex statutory and regulatory regime. Section 58(b) of the Native Title Act authorizes regulations specifying the way in which a prescribed body corporate may perform certain functions. Regulations 7, 8 and 9 of the PBC regulations seem to be regulations of that kind. The obligation to consult and obtain consent of the traditional owners must be considered in light of the fact that the traditional owners will not necessarily comprise or constitute a formal association with rules and formal structures for decision‑making, other than those applicable to the prescribed body corporate itself. For present purposes the relevant decisions were not decisions of prescribed bodies corporate, but rather they were decisions of clan groups which seem to have had no formal structure and rules, save to the extent that they were derived from traditional law and custom. Hence the process of consultation and that of giving consent may appear to be quite informal. No doubt reg 9 was designed to deal with that situation by providing a mechanism for demonstrating that the relevant processes had occurred.

   To some extent, the certificate contemplated by reg 9(2) may reflect the opinion of a signatory as to whether there has been consultation and consent.  The relative informality of the process may result in differences of opinions concerning these matters.  If it were open to other traditional owners to dispute such a certificate, the process prescribed by reg 9 would have little purpose.  It may be that the involvement of the prescribed body corporate and, in many cases, a representative Aboriginal/Torres Strait Islander body was thought to be likely to minimize the risk that some traditional owners might falsely sign reg 9(2) certificates. ...

   [66]   Gibson v Rivers-McCombs [2014] FCA 144, [73]-[74] (Dowsett J).

8. By reference to these various provisions and regulations, particularly reg 8(1)(b), together with the requirement that a certificate in writing be prepared under reg 9(1), Rangelea submitted that consultation and consent was required but had not been undertaken, obtained or certified. On that basis, Rangelea submitted that ATLA had no authority to make its requests or institute Supreme Court proceedings. In the absence of consultation and consent, Rangelea submitted that the request and the proceedings were both “ultra vires ATLA”. 

9. Rangelea also submitted that the reliance placed by the primary judge on regs 8(7) and (8) was misplaced, and it was only if reg 8 did not apply that ATLA could argue that it was not required to consult and obtain consent. Indeed, it was contended that it was not self-evident how reg 8 could have authorised ATLA’s conduct.[67]

   [67]   Cf Reasons, [14].

10. By reference to the definition of “native title rights” in reg 3, and the definition of an “interest” in s 253 of the Native Title Act, Rangelea contended that there was “no doubt” that on its “proper construction” the request made and the application commenced by ATLA involved a “native title decision” because it “affected” the common law holders by bringing an action purportedly on their behalf.

    The determination of appeal grounds 4 and 6

1. That leaves to one side what comprises trust documents and records, as well as trust accounts, an issue not raised by this appeal. In South Australia, that is an issue which must start with the trust documents and records prescribed by s 84B of the Trustee Act and reg 5 of the Trustee Regulations.  Relatively recently, Ward CJ in Eq (as her Honour then was) considered carefully and in some detail in Wang v Cai whether or to what extent documents beyond those concerning the terms of the trust, or concerning trust property, or concerning the accounts of the trust, were liable to disclosure.[258]  Her Honour observed that the “documents of the trust” may go well beyond the concept of trust documents to which it has been said that, as a general rule, a beneficiary will have a prima facie right to inspect.[259]  

   [258] Wang v Cai [2021] NSWSC 1162, [188]ff.

   [259] Wang v Cai [2021] NSWSC 1162, [285] (Ward CJ in Eq) referring to Hancock v Reinhart (2015) 13 ASTLR 1; [141]-[142] (Brereton J) and Avanes v Marshall (2007) 68 NSWLR 595, [3] (Gzell J).

2. By contrast, it has also been suggested that it is inappropriate for a beneficiary to seek to examine or obtain any document which is in any way, however remotely, connected with the administration of a trust.  On this appeal, no criticism has been made regarding the breadth of the documents sought. 

3. Against this background, the role of an inspector appointed under the Trustee Act becomes clearer.  In this case the appointment of an inspector is properly to be regarded as ancillary to and in aid of any call made by the beneficiaries on the trustee to produce trust documents and records. 

4. Before addressing Rangelea’s particular complaints about the appointment of an inspector, it is first appropriate to observe that s 84C confers a broad discretion on the Supreme Court when determining whether or not to appoint an inspector.[260]

   [260] Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, [63] (Doyle CJ), followed in Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; [2005] SASC 192, [7] (Judge Lunn).

5. It is clear that the inclusion of s 84C of the Trustee Act significantly extends the general law avenues available to a beneficiary, or anyone else with “a proper interest in the matter”, to gather information about a trust. The presence of s 84C recognises that a beneficiary or other applicant seeking the appointment of an inspector will at times be at a significant disadvantage because they have neither the knowledge nor the documents and records necessary to acquire knowledge about the operation and administration of a trust. Section 84C recognises that these applicants may therefore require assistance beyond the access to trust documents that may be permitted under s 84B of the Trustee Act or at general law.  

6. The requirements under s 84B(2) to provide documents, and under s 84D(1) to provide documents to the inspector and to answer questions, are bolstered by the inclusion of criminal law sanctions under ss 84B(2) and 84D(2) of the Trustee Act. If these obligations are contravened, there is exposure to a fine or, in the case of s 84D(2), to conviction for an offence together with a $2,000 fine and imprisonment for six months, “or both”.

7. The application of s 84C involves three stages. The first is the identification of the relevant “matter”. Usually, but perhaps not invariably, the matter referred to in s 84C(1) will be a reference to the matter which is to be investigated. In this case, the matter is framed by the complaints made by ATLA and the respondents in their application and pleadings before the Supreme Court.

8. The second stage is to determine whether the applicant is a proper applicant.  It is significant that the power of appointment may be exercised by the Supreme Court on its own initiative, as well as on the application of any person who, in the opinion of the Court, has “a proper interest in the matter”, which must necessarily be a bona fide interest.[261]  That will often be demonstrated by the identification of the reason, which one would expect will be a good reason, why the applicant requires information about the matter to be investigated.  Here the proper interests of ATLA and the respondents are not difficult to identify, bound up as they are in ATLA’s agency and its interest in the native title mining agreements, and the payments made under those agreements to a trust of which the respondents are beneficiaries, and the difficulties they have all encountered in obtaining information about the administration of the Trust and the questions they have raised about the payments made from the Trust.

   [261] See Trustee Act, s 84C(1).

9. The third stage is the exercise of the statutory discretion.  That is the principal area of contention on this appeal.  In many cases a balancing exercise will be involved, not only in determining whether to make an order, but also as to the terms of that order.  There is much to be said for the view of the primary judge that an important consideration will be to ensure the due administration of the trust.[262] 

   [262] See Reasons, [148].

10. Whilst the grounds sufficient to justify the appointment of an inspector are not confined to cases of wilful misconduct or fraud, or a reasonable suspicion about those kinds of issues, some proper reason for the appointment must normally be demonstrated.  In that respect there is no specific threshold required to justify the appointment of an inspector, and the exercise of the court’s broad discretion should not be “unduly circumscribed”.[263] Examples are provided by cases where there have been irregularities in compliance with record keeping obligations,[264] and where a trustee has apparently preferred the interest of one beneficiary over another or apparently failed to act impartially.[265]

    [263] Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; [2005] SASC 192, [11] (Judge Lunn). See also Hunter v Colton [2009] SASC 129, [9] (Judge Lunn). It is noteworthy that in Colton v Hunter [2009] SASC 299, the parties appear to have agreed that an appeal against Judge Lunn’s decision should be allowed. When this was questioned by Layton J, it was ultimately determined that the appeal should be dismissed, and the parties explained to her Honour that information had been supplied which demonstrated that it was no longer necessary to continue the appointment of an inspector.

    [264] Hunter v Colton [2009] SASC 129, [19] (Judge Lunn).

    [265] Oxer v Astec Paints Australia Pty Ltd (2005) 240 LSJS 109; [2005] SASC 192, [12] (Judge Lunn).

11. It is for the court to decide whether the appointment of an inspector is the appropriate means by which to obtain the information and documents sought by the beneficiary or any other proper applicant. Without in any way being exhaustive, the relevant matters that might be weighed when determining whether to appoint an inspector under s 84C of the Trustee Act might include whether:

    (1) the appointment of an inspector and the inspector’s investigation, or any likely disclosure made to the inspector, would involve confidential or privileged material, and whether concerns about those issues cannot be properly managed, for example, under s 84F (which imposes conditions of confidentiality);

    (2) the appointment of an inspector or compliance with an inspector’s requests and questions would likely be unduly disruptive to the proper administration of the trust and involve excessive delay or expense;

    (3) the appointment of the inspector is thought to be disproportionate to the applicant’s proper interest or difficulty in obtaining information about the matter.

12. There is no basis for any of these kinds of concerns in this case.

13. Where the applicant establishes a proper interest in the matter, and the existence of some difficulty or disadvantage in acquiring information about that matter, these will often represent powerful reasons to exercise the statutory discretion in favour of making an order. 

14. Once a proper basis has been made out for the appointment of an inspector it will usually, but not invariably, be the case that the order will be for the investigation of the administration as a whole concerning a defined period.[266]

    [266] Hunter v Colton [2009] SASC 129, [9].

15. Following appointment, an inspector has the broad powers identified in s 84D(1), subject only to a person’s right to decline to answer an inspector’s question where the answer may tend to incriminate.[267]  Moreover, an inspector is obliged to report to the Attorney-General and to the Supreme Court, as well as to make interim reports as directed.[268]  The inspector is subject to the imposition of conditions of confidentiality.[269]

    [267] Trustee Act, s 84D(3).

    [268] Trustee Act, ss 84E(1) and 84E(2).

    [269] Trustee Act, s 84F.

16. Whilst ATLA and the respondents contended that these provisions were not confined in their operation to a private trust, including a private discretionary trust, it is not presently necessary to address the contention that they apply equally to a charitable trust.[270]

    [270] In part, the alternative contention was premised on the breadth of the definition of a trust for the purposes of the Trustee Act, see s 4(1).

17. The contention by Rangelea that the primary judge did not take into account relevant considerations must be rejected.  It is, of course, necessary to read the reasons as a whole.  The primary judge made it clear that the production of documents concerning the administration of the Trust was, standing alone, unlikely to reveal how much of the fund that had been distributed to the Sub-Groups was then disseminated between members of each Sub-Group or in what proportions.[271]  The primary judge held that an inspector appointed to investigate the administration of the Trust was likely to discover more information than might be disclosed merely by the production of trust documents and records.  That conclusion is not challenged.

    [271] Reasons, [15].

18. There can be no complaint about the primary judge having regard to the distribution of trust funds to the Sub-Groups, and then the beneficiaries, as relating to the administration of the Trust.  Whilst each Sub-Group was to an extent independently managed, this was done under the umbrella of the Trust and the arrangements it established and which Rangelea as trustee supervised.  There can be no sharp cleavage between the operation of the Sub-Groups and the Trust more generally.  They are necessarily intertwined, particularly as the starting point should be an equality in treatment amongst the beneficiaries, see cl 5.1(4) discussed above. 

19. The evidence from ATLA and the respondents that there was an unexplained disparity in the monies received by the beneficiaries is a matter that calls for explanation and, ultimately, investigation. 

20. The issue could be tested in this way: the trustee has the power to address any failure to adhere to the terms of the Trust Deed by any Sub-Group in connection with the operation of that Sub-Group and its management of Trust Funds.  That is the kind of issue that might be addressed under cl 5.1(4), as well as at any regular meeting of the Traditional Owners under clause 6, when the Trustee must consult with the Traditional Owners regarding the discharge of its duties.

21. Indeed, the apparent absence of regular meetings might be thought to provide additional reason to question the way Rangelea has operated, and the way the Trust has been administered, and to provide additional support for the appointment of an inspector.

22. Whilst the primary judge referred back to paragraphs [105] to [111] at [256] of his reasons, this appears to be a typographical error.  When one has regard to [113] it would seem clear enough that the correct reference should have been to the matters set out at [107] to [112].  This way of reading the reasons of the primary judge demonstrates that he had regard to a range of relevant considerations and not simply the distribution of trust funds to the Sub-Groups or an Eligible Entity.

23. In addition, the primary judge referred to other considerations.[272]  It is apparent from a reading of the reasons of the primary judge that his Honour had regard to the following matters as providing “strong reason” to favourably exercise his discretion to appoint an inspector:

    1.The primary judge found that the Trust was a private discretionary trust and the beneficiaries, being the named group members or Traditional Owners specified in the Register, had an entitlement to the due administration of the Trust in accordance with the provisions of the Trust Deed.[273]

    2.The primary judge had regard to the potential consequences flowing from the finding that the proper characterisation of the Trust was that of a private discretionary trust in circumstances where it had presumably been administered as a charitable trust.[274]

    3.The primary judge had regard to the absence of any transparency for the members of each Sub-Group regarding the distribution of trust funds, including the allocated share of each Sub-Group, whether to each Sub-Group or an Eligible Entity, together with a further application or distribution of those funds.[275]

    4.The primary judge had regard to the erroneous treatment of the Trust by Rangelea as a charitable trust and any consequences that may have for the after-tax value of the payments made to it under the native title mining agreements, being a matter about which the Traditional Owners and ATLA (as their agent) had a proper interest.[276]

    [272] Reasons, [113]. Here, the primary judge was clearly referring to Reasons [107]-[112].

    [273] Reasons, [106]-[108].

    [274] Reasons, [109]-[110].

    [275] Reasons, [111].

    [276] Reasons, [112].

24. Similarly, the “mismanagement” to which Mr Coulthard referred, which is referred to at [256], is not necessarily confined to ATLA but, even if it was, these additional considerations do not detract from the strength of the matters already and earlier identified by the primary judge. 

25. In so far as Rangelea referred to the evidence given by a director regarding the administration of the Trust and the preparation of audited financial accounts, this does not demonstrate that an inspector is not required.  It is significant that this evidence was not supported by any contemporaneous trust records.  The result was that what was the subject of evidence could not be checked and the requests made by ATLA and the respondents remained unanswered.  This evidence did not meet the evidence given by Mr McQuoid and the respondents about their concerns and the evident problems concerning the administration of the Trust more generally.

26. Finally, and even if it were thought that there was some error in the reasons of the primary judge, or with his exercise of discretion, the evidence of ATLA and the respondents, together with the matters to which reference has been made in these reasons, demonstrate that there was here a strong case made out for the appointment of an inspector.  Without being exhaustive, these matters include the absence of regular meetings and information, the disparity in payments to beneficiaries, the conduct of the Trust as a charitable trust, the consequences of these matters for the proper administration of the Trust and the interests of its beneficiaries, and the likelihood that an inspector exercising statutory powers will be better able to gather information and report effectively, compared with simply ordering the production of documents.

27. Accordingly, there was a proper basis for the appointment of an inspector, and appeal ground 7 should be dismissed.

    The notice of alternative contentions

28. As each of the particular challenges made by Rangelea have been rejected, it is not necessary to address the notice of alternative contentions.  It is nonetheless convenient to address some of the points made.

29. As has been seen, the better view of the findings made by the primary judge is that the determination as to whether the Trust is a private discretionary trust is determined solely by reference to the terms of the Trust Deed.  His Honour did not rely on the subsequent administration of the Trust for this purpose.

30. However, even if he had done so, for the reasons earlier given, a consideration of the terms of the Trust Deed alone demonstrates that it is properly viewed as a private discretionary trust.  Accordingly, and were it necessary to do so, alternative contention 1 should be upheld.

31. As for alternative contention 2, ATLA and the respondents pleaded:

    2. Were the Master Trust [Trust] determined to be a charitable trust, contrary to the finding made by the learned Trial Judge [primary judge] ([Reasons] [13] and [106]):

    2.1. sections 84B and 84C of the Trustee Act 1936 (SA) (Trustee Act) would equally apply, such that it would still be open to the Court to grant the same relief to the Applicants under those provisions of the Trustee Act;

    2.2.    it would still be open to the Court to grant the same or similar relief pursuant to the Court’s exercise of its supervisory jurisdiction; and/or

    2.3. alternatively, it would still be open to the Court to grant the same or similar relief pursuant to sections 60 and 67 of the Trustee Act.

32. Sections 60 and 67 of the Trustee Act provide:

    60—Applications to Supreme Court

    (1) In every case of a breach of any trust or supposed breach of any trust created for charitable purposes, or whenever the direction or order of the Supreme Court shall be deemed necessary for the administration or management or to the advantage or benefit of any trust created for charitable purposes, it shall be lawful for a person referred to in subsection (2) to apply to the Supreme Court, stating such breach or supposed breach, or the grounds upon which such direction or order is necessary, as the case may be, and seeking such relief as the nature of the case may require.

    (2)     An application may be made by any of the following persons:

    (a)     the Attorney-General; or

    (b)     a trustee of the trust; or

    (c)     a person who is named in the instrument establishing the trust as a person who is entitled to, or may, receive money or other property for the purposes of the trust; or

    (d)     a person who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustees before distributing or applying money or other property for the purposes of the trust; or

    (e)     a person who has in the past received money or other property from the trustees for the purposes of the trust; or

    (f)      a person of a class that the trust is intended to benefit; or

    (g)     any other person who satisfies the Court that he or she has a proper interest in the trust.

    …

    67—Powers of court in dealing with application

    The court may make such order on the application as to it seems just, or may refuse to make any order, or may direct that the right to the relief sought be determined in an action to be brought for that purpose.

33. If this Court had found that the proper view was that the Trust is a charitable trust, there was scope to rely upon these provisions. 

34. The principal impediments would have been the need for a finding to be made that there was, at the least, a supposed breach of trust or, alternatively, that an order or direction of the Court was deemed necessary for the administration or management or to the advantage or benefit of the Trust, as s 60(1) requires. A finding under the second limb, at the least, was open on the bases already outlined given the findings made that trust documents should be produced and an inspector should be appointed.[277] 

    [277] That these matters were effectively agitated below appears from the pleadings and the opening before the primary judge, marked A, and the factual issues addressed in the memorandum prepared by ATLA and the respondents, marked C, at the hearing of the appeal.

35. Those findings could have been made in a context where ATLA and the respondents satisfied the requirements for standing under s 60(2) because, at the very least, they have a “proper interest” in the Trust. ATLA’s interest arises out of its role as a party to the native title mining agreements and its direction that the monies otherwise due to ATLA be paid to the Trust. The respondents are named in the instrument establishing the Trust, in the past they have received money from the Trust, and they come within a beneficial class that the Trust is intended to benefit.

1. Therefore, and if it were necessary to do so, findings in favour of ATLA and the respondents could have been made under Part 4 of the Trustee Act and the issue of service on the Attorney-General addressed.[278] 

   [278] Including by relieving ATLA and the respondents from having to serve the Attorney‑General in circumstances where the Attorney was apparently kept informed about this application, see the affidavit of Ms Lisa Loechel dated 9 October 2023 exhibiting a bundle of correspondence, marked C.

2. Nonetheless, there is much to be said for the proposition that whilst Parts 4 and 5A of the Trustee Act might suggest different areas of operation, there is potential for them to overlap and, if it were to be suggested that there was some deficiency in the remedies available under the general law, or to those with a “sufficient interest” in the administration of a charitable trust under Part 4, it is difficult to see why provisions such as ss 84B and 84C under Part 5A of the Trustee Act ought not be available. 

3. It has been held that the term “beneficiaries” in s 59B of the Trustee Act is not confined to those entitled to benefit from a private trust, or as necessarily excluding charitable trusts from the reach of the provision.[279]  In The Kean Memorial Trust Fund, Besanko J rejected a submission by the Attorney-General that s 59B of the Trustee Act did not apply to charitable trusts:[280]

   It is well-established in other jurisdictions that the powers contained in sections equivalent to s 59B (for example, s 57 of the Trustee Act 1925 (UK); s 81 of the Trustee Act 1925 (NSW)) may be invoked in the case of charitable trusts (Re Shipwrecked Fishermen and Mariners Royal Benevolent Society Charity [1959] Ch 220; Re Dutton [1968] SASR 295; Freeman v Attorney-General (NSW) [1973] 1 NSWLR 729; Meagher and Gummow, Jacobs’ Law of Trusts in Australia (6th ed, 1997), at [1706]). However, the Attorney‑General refers to certain observations of Legoe J in City of Burnside v Attorney‑General (SA) (1993) 61 SASR 107 at 141 to the effect that s 59B does not apply in the case of charitable trusts. The other members of the Full Court (Perry and Duggan JJ) did not make similar observations in their respective reasons for judgment. The trial judge in that case (Debelle J) did not hold that s 59B did not apply to charitable trusts (Burnside City Council v Attorney-General (SA) (No 2) (1992) 76 LGRA 226). With respect, I would not follow Legoe J on this point. There is nothing in the words of s 59B which suggests it does not apply in the case of charitable trusts. I do not think that the reference to “beneficiaries” in s 59B(1) and (2) limits, or was intended to limit, the operation of the section to private trusts. Furthermore, there is well-established authority in other jurisdictions that the equivalent to s 59B applies to charitable trusts as well as private trusts. I would so hold.

   [279] Trustees of the Kean Memorial Trust Fund v Attorney-General (SA) (2003) 86 SASR 449, (The Kean Memorial Trust Fund) [44]-[45] (Besanko J).

   [280] The Kean Memorial Trust Fund (2003) 86 SASR 449, [45] (Besanko J).

4. Under Part 3 of the Trustee Act, “Powers of the Court”, appears s 59B:

   59B—Advantageous dealings

   (1) Where in the management or administration of any property vested in a trustee, any sale, lease, mortgage, surrender, release, or disposition, or any purchase, investment, acquisition, expenditure, or transaction, is in the opinion of the Supreme Court expedient, but cannot be effected by reason of the absence of or defect in any power for that purpose vested in the trustee by the instrument, if any, creating the trust, or by law, the Supreme Court—

   (a)     may by order confer upon the trustee, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, including adjustment of the respective rights of the beneficiaries, as the Supreme Court may think fit; and

   (b)     may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

   (2) Subsection (1) of this section shall be deemed to empower the Supreme Court, where it is satisfied that an alteration whether by extension or otherwise of the trusts or powers conferred on the trustee by the trust instrument, if any, creating the trust or by law is expedient, to authorise the trustee to do or abstain from doing any act or thing which if done or omitted by them without the authorisation of the Supreme Court or the consent of the beneficiaries would be a breach of trust, and in particular the Supreme Court may authorise the trustee—

   (a)     to sell trust property notwithstanding that the terms of or the consideration for the sale may not be within any statutory powers of the trustee, or within the terms of the instrument, if any, creating the trust, or may be forbidden by that instrument;

   (b)     to postpone the sale of trust property;

   (c)     to carry on any business forming part of the trust property during any period for which a sale is postponed;

   (d)     to employ capital money subject to the trust in any business which the trustee is authorised by the instrument, if any, creating the trust or by law to carry on;

   (e)     to borrow money on such terms and conditions as the court orders.

   (3) The Supreme Court may from time to time rescind or vary any order made under this section, or may make any new or further order.

   (4) The powers of the Supreme Court under this section shall be in addition to the powers of the Supreme Court under its general administrative jurisdiction and under this or any other Act.

   (5) This section applies to trusts created either before or after the commencement of the Trustee Act Amendment Act 1941.

5. This provision is within Division 5 “Miscellaneous” and includes s 58, concerning the power to give judgment in the absence of a trustee, as well as s 59C, which addresses the power of the Supreme Court to authorise variations of the deed of trust.[281] It is significant that by s 59B(4) the Court’s powers are in addition to those available “under its general administrative jurisdiction” as well as “under this or any other Act”.

   [281] See, for example, Retail Employees Superannuation Pty Ltd v Pain (2016) 139 SASR 401, [156] ff (Blue J). In that case his Honour observed that by s 59C(5) the trust the subject of the application cannot be a charitable trust.

6. The view of Besanko J in The Kean Memorial Trust Fund is the preferable view, and should be followed.  Whilst it is not determinative of the point raised here, it tends to suggest that the broad powers made available under the Trustee Act should not be circumscribed except where necessary. As with s 59B, there is no good reason to narrowly circumscribe the reach of Part 5A of the Trustee Act, particularly when viewed in combination with this court’s broad power of oversight of the administration of trusts.[282] 

   [282] For example, in Baptist Churches of South Australia Inc v Attorney-General for the State of South Australia [2018] SASC 14, [41] Stanley J relied on the powers conferred upon the court by ss 59B and 69B of the Trustee Act, and its inherent jurisdiction, when making an order for a trust variation scheme concerning a charitable trust established by a will. The bequest was insufficient to establish a hospital and the alternative, not opposed by the Attorney-General, of a primary health care centre was held to be consistent with the spirit and intention of the deceased.

7. In these circumstances, and were it necessary to do so, alternative contention 2 should be upheld. 

8. Finally, ATLA and the respondents amended alternative contention 3 so that it read:

   3. The Court’s exercise of the discretion to grant an order for the appointment of an inspector ([Reasons][15], [113] and [256]) was equally open by reference to the following additional relevant considerations:

   3.1.    to enable the Special Administrator to complete his reporting function to the Common Law Holders as to the administration of the native title compensation payments into the Trust; and/or

   3.2.    as the means by which the significant amount of disputation regarding the administration of the Trust, and the monies paid under the Agreements, might most appropriately be addressed.

9. It is clear from the foregoing that there is a close inter-relationship between the operation of ATLA and the operation of the Trust as administered by Rangelea.  Whilst each has an identifiable area of operation, there is a degree to which those areas can, and do at times, overlap.  For example, it is undoubtedly an aspect of the proper function of the Special Administrator that he be in a position to report to the common law holders regarding the ways in which the payments made under the native title mining agreements have, at the direction of ATLA, been administered. 

10. Whether that direction ought to continue, or be modified in some way, is but one of a number of issues which the Special Administrator may wish to consider.  Associated with that, it is necessary for the Special Administrator to obtain some understanding about the way in which the Trust has been administered so as to determine whether or to what extent there have been deficiencies in that administration, as ATLA and the other respondents fear. 

11. The appointment of an independent inspector to scrutinise the administration and management of the Trust, particularly as to whether the interests of the beneficiaries have been appropriately recognised and met in accordance with the terms of the Trust Deed, will be of particular interest to the Special Administrator and likely to assist him in connection with the reports he must furnish to the common law holders.  The same may be said about the extent to which the income and assets of the Trust have been appropriately administered in accordance with the terms of the Trust Deed. 

12. It would have been relevant and appropriate for the primary judge to have regard to this close inter-relationship when determining to appoint an inspector who must comply with the reporting requirements under the Trustee Act and furnish the Special Administrator (and others) with information likely to be of interest to the common law holders and which will equip him with the material necessary to make his reports.  Likewise, it would have been appropriate for the primary judge to view the appointment of an inspector as the most appropriate means of addressing the very significant level of disputation regarding the due administration of the Trust, observing that there is an inter-relationship between that and the proper operation and management of Rangelea and ATLA.

13. For these reasons also, the orders made for the appointment of an inspector were justified. 

    Conclusion

14. The particular criticisms made by Rangelea should each be rejected and, were it necessary, the alternative contentions upheld. 

15. It is clearly in the interests of the Adnyamathanha people, particularly the traditional owners and common law holders, that the management and distribution of trust monies received under the native title mining agreements be reviewed with the benefit of the production of trust documents and the appointment of an inspector in accordance with the orders made by the primary judge.

16. The appeal should be dismissed with costs.