Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] - [2019] WASC 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SANDY -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [No 2] [2019] WASC 328
CORAM:   LE MIERE J
HEARD:   27 MAY 2019
DELIVERED          :   11 SEPTEMBER 2019
FILE NO/S:   CIV 2883 of 2017
BETWEEN:   JOHN SANDY
PAUL AUBREY
Plaintiffs
AND
YINDJIBARNDI ABORIGINAL CORPORATION RNTBC
Defendant

Catchwords:

Procedure - Pleadings - Strike out application - Application to strike out originating summons - Whether proceeding is an abuse of process - Turns on own facts

Procedure - Pleadings - Abuse of process - Whether plaintiffs' legal expenses are being funded contrary to its rule book and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - Whether plaintiffs have invoked the process of the court that could have been litigated in earlier proceedings - Turns on own facts

Legislation:

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s 60‑10, s 60‑20, s 72‑10, s166‑1, s 166‑5, s 284‑1, s 284‑5, s 287‑1, s 293‑5, s 386‑1, s 386‑10, s 386‑15, s 386‑20, s 576‑1, s 576‑25
Native Title Act 1993 (Cth)
Rules of the Supreme Court 1971 (WA), O 9A

Result:

The proceeding is not an abuse of process
The defendant's application is dismissed

Category: B

Representation:

Counsel:

Plaintiffs	:	Mr M L Bennett
Defendant	:	Mr V Hughston SC & Mr J L Edwards

Solicitors:

Plaintiffs	:	Bennett + Co
Defendant	:	HWL Ebsworth Lawyers

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

Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467
Daniel v The State of Western Australia [2005] FCA 536
Johnson v Gore Woods Co (a firm) [2002] 2 AC 1
Moses v The State of Western Australia (2007) 160 FCR 148
Moti v The Queen (2011) 245 CLR 456
Nelson v Nelson (1995) 184 CLR 538
Rogers v The Queen (1994) 181 CLR 251
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 (S)
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] [2018] WASC 124
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1
UBS AG v Tyne [2018] 92 ALJR 968

LE MIERE J:

Summary

The defendant, Yindjibarndi Aboriginal Corporation RNTBC (YAC), is an Aboriginal and Torres Strait Islander Corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). The plaintiffs are each members of YAC and of Wirlu-Murra Yindjibarndi Aboriginal Corporation (WMYAC), an Aboriginal and Torres Strait Islander Corporation incorporated under the CATSI Act.
By originating summons the plaintiffs claim a declaration that the affairs of YAC have been conducted oppressively or unfairly, a declaration that special resolutions purportedly carried at the 2016 YAC AGM were not validly carried, an order that the YAC Rule Book registered on 4 December 2016 be replaced with the previous version, an injunction requiring YAC to lodge with the Office of the Registrar of Indigenous Corporations (ORIC) a financial report for the 2018 financial year that complies with regulatory, accounting and auditing standards and the appointment of a receiver over the property of YAC.
Members of WMYAC have previously brought proceedings against YAC. In particular, two members of WMYAC brought proceedings against YAC (the AS proceeding) which was resolved by the judgment of Pritchard J in Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] (Sandy [No 4]).[1]
[1] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 4] [2018] WASC 124.
YAC has applied for orders that the plaintiffs' originating summons be struck out and the proceeding be dismissed on the ground that the proceeding is an abuse of process. YAC says the proceeding is an abuse of process on two grounds. The first ground is that WMYAC is funding the plaintiffs' action in breach of its rule book, pt 6‑6 of the CATSI Act and in circumstances where WMYAC also funded the AS proceeding in breach of its rule book and pt 6‑6 of the CATSI Act. The second ground is that WMYAC, by the plaintiffs, have invoked the process of the court to litigate claims that could and should have been litigated in the AS proceeding.
I find that this proceeding is not an abuse of process and YAC's application should be dismissed for the following reasons.

The dispute between YAC and WMYAC

At the heart of the AS proceeding, and this proceeding, is a dispute between YAC and those of its members who are also members of WMYAC.
The Yindjibarndi people come from the Pilbara Region in Western Australia. In 2003, the Federal Court recognised that the Yindjibarndi people had certain native title rights in an area referred to as the Yindjibarndi Native Title Area (Daniel Determination Area).[2] Those native title rights and interests were non‑exclusive native title rights and interests.
[2] Daniel v The State of Western Australia [2005] FCA 536. The Daniel decision was the subject of an appeal to the Full Federal Court which affirmed the decision of the trial judge, save to vary it in certain respects: see Moses v The State of Western Australia (2007) 160 FCR 148.
The Yindjibarndi people, who are referred to as the 'common law holders' of those native title rights and interests, were identified in the Daniel decision as 'aboriginal persons who recognise themselves as, and are recognised by other Yindjibarndi people as, members of the Yindjibarndi language group.[3] Under the Native Title Act 1993 (Cth) (NT Act), common law holders will ordinarily nominate a prescribed body corporate to hold their native title rights and interests on trust for them. For the purposes of the NT Act, YAC is a 'prescribed body corporate' (PBC) and a 'registered native title body corporate'; and in that capacity, it holds the native title rights and interests in respect of the Daniel Determination Area on trust for the common law holders.[4] As a PBC, which holds native title rights and interests on trust, YAC has prescribed functions, including the function to manage the native title rights and interests of the common law holders. Payments of compensation, such as those which may be made pursuant to an indigenous land use agreement will be held on trust for the common law holders.[5] The common law holders are all members of the Yindjibarndi language group, and not just those persons who are, or may become, members of YAC. As the trustee of the common law holders' native title rights, YAC is obliged to act in the interests of all of those common law holders, and not just in the interests of the members of YAC.[6]
[3] Sandy [No 4] [11].
[4] Sandy [No 4] [12].
[5] Sandy [No 4] [13].
[6] Sandy [No 4] [14].
WMYAC was registered under the CATSI Act in 2010.[7] It was established by a number of YAC members. The first plaintiff is a director of WMYAC. WMYAC's objectives, as set out in its rule book, are expressed in the same terms as YAC's objectives. The membership criteria set out in WMYAC's Rule Book are also similar to the membership criteria set out in YAC's Rule Book. In order to be a member of WMYAC, a person must be at least 18 years old, a Yindjibarndi person who holds in common the body of traditional law and culture governing the Daniel Determination Area and identify as Yindjibarndi.[8]
[7] Sandy [No 4] [77].
[8] Sandy [No 4] [78].
In Sandy [No 4], Pritchard J said that there was some dispute between the parties as to the precise bounds of the dispute between YAC and those of its members who are members of WMYAC. Her Honour said that the issues which led to the dispute included concerns about the management of YAC, including the management of its financial affairs and a dispute about whether Yindjibarndi people (through YAC) should enter into a land access agreement with Fortescue Metals Group for the payment of compensation for its mining activities on land the subject of a Yindjibarndi claim.[9]
[9] Sandy [No 4] [79].

AS proceeding

The plaintiffs in the AS proceeding, like the plaintiffs in this proceeding, are members of the Yindjibarndi people. They were members of YAC and of WMYAC. The plaintiffs contended that since December 2010, YAC had acted, and threatened to act, in contravention of the requirements of the CATSI Act and in contravention of its constitution contained in the YAC Rule Book. The plaintiffs contended that the conduct of YAC's affairs, actual or proposed acts or omissions by or on behalf of YAC, and resolutions or proposed resolutions of the members of YAC, were contrary to the interests of the members of YAC as a whole, and in addition, or alternatively, were oppressive to, unfairly prejudicial to, or unfairly discriminatory against members of YAC, within the meaning of s 166‑1(1) of the CATSI Act.[10] The plaintiffs also contended that the register of members of YAC was erroneous and should be corrected.[11] For convenience, Pritchard J referred to the plaintiffs' case, in shorthand, as alleging 'oppressive conduct' on the part of YAC, recognising that that description encompassed all of the forms of conduct referred to in s 166‑1(1)(d) and (e) of the CATSI Act.[12]
[10] Sandy [No 4] [3].
[11] Sandy [No 4] [3].
[12] Sandy [No 4] [3].
The AS plaintiffs contended that YAC had engaged in oppressive conduct in five broad ways, namely by operating at times without any validly appointed directors, denying membership rights and engaging in improper conduct in dealing with membership applications, failing to conduct or manage meetings properly, improper administration of YAC's finances, and continual non‑compliance with the CATSI Act and its rule book. Within these five broad categories, the plaintiffs alleged that YAC had engaged in 20 separate instances of oppressive conduct over the course of approximately six years. Pritchard J described the plaintiffs' case to be that those instances of alleged conduct, individually and collectively, constituted oppressive conduct for the purposes of the CATSI Act.[13]
[13] Sandy [No 4] [4].
The AS plaintiffs claimed relief in the form of an order for the appointment of a receiver and manager of the property of YAC, for the purpose of carrying out a variety of specific functions in addition to the usual functions of a receiver. The functions that the plaintiffs said the receiver should perform included entering the names of specified persons onto the register as members of YAC; considering (and, if possible, deciding) any membership applications which remained undecided or which were received during the term of the receiver's appointment; investigating the affairs of YAC from as early as 15 December 2010, including its finances and any significant decisions made by YAC or its directors or office bearers since then, and reporting to the court (and in turn, the members of YAC) about those matters; and investigating the circumstances surrounding the entry of members onto the register since 10 September 2014 and reporting to the court (and in turn, YAC's members) whether the register should be rectified, and in what manner.[14]
[14] Sandy [No 4] [5].
The trial of the AS proceeding took place over 10 days in December 2016 and February 2017. Prichard J delivered her reasons for judgment on 20 April 2018. Pritchard J found that some of the conduct relied upon by the plaintiffs constituted conduct which, at the time when it occurred, was conduct of the kind described in s 166‑1(1)(d) or (e) of the CATSI Act. Her Honour found that other conduct relied upon by the plaintiffs constituted conduct which, at the time of trial, was conduct which fell within s 166‑1(1)(d) or (e) of the CATSI Act. However, her Honour was not persuaded that the appropriate relief was the appointment of a receiver. Her Honour found that in respect of some oppressive conduct, no relief was warranted because the oppression had already been remedied or was no longer of any effect. In respect of the remaining oppressive conduct ‑ namely that which was still continuing as at the date of the trial ‑ her Honour found that rather than appoint a receiver, the appropriate relief was an order addressing the conduct of that aspect of YAC's affairs into the future.[15]
[15] Sandy [No 4] [8].

This proceeding

The plaintiffs commenced this proceeding by originating summons on 8 November 2017. Service of the originating summons was not effected until October 2018 and a memorandum of appearance was filed by YAC on 6 December 2018. The originating summons was amended on 18 February 2019. On 22 February 2019, YAC filed its chamber summons to strike out the plaintiffs' amended originating summons. There are no pleadings or statements of facts issues and contentions filed in this proceeding. The only affidavits filed are in support of, or in opposition to, YAC's application to strike out the amended originating summons.
The nature and scope of the proceeding is to be discerned from the plaintiffs' originating summons. In its amended originating summons the plaintiffs claim:
1.A declaration that pursuant to section 166-5(1) of the CATSI Act that the conduct of the affairs of the defendant (YAC) in:
Rejection of proxies
1.1Rejecting 27 proxies at its Annual General Meeting held on 30 November 2016 (2016 YAC AGM);
Financial reports
1.2Failing to lodge with the Office of the Registrar of Indigenous Corporations (ORIC) an audited consolidated financial report for the financial year ending 30 June 2018 (2018 Financial Year) in compliance with Division 333 of the CATSI Act, Sub-division 333-A of the CATSI Regulations and relevant accounting and auditing standards, which consolidates the accounts of the following entities controlled by YAC:
1.2.1Yindjibarndi People Community Trust;
1.2.2Yindjibarndi Commercial Trust;
1.2.3Yindjibarndi Capital Trust;
1.2.4Yindjibarndi Wealth Trust; and
1.2.5Yurra Pty Ltd;
1.3Failing to disclose details of transactions with related parties as required by AASB124 in its financial statement for the 2018 Financial Year;
1.4Failing to depreciate its office building at 45 Roe Street, Roebourne in its financial statement 2018 Financial Year in accordance with the requirements of AASB116;
1.5Failing to review the carrying amount of the land and buildings known as the Victoria Hotel, Roebourne to determine whether there is any indication of impairment as at 30 June 2018 in accordance with YAC’s statement of significant accounting policies;
Payments in breach of the YAC rule book
1.6Making payments to members and other recipients in breach of rules 8 and 9 of YAC’s rule book, including:
1.6.1 Routinely making payments that have only either been signed by an employee or a single director;
1.6.2Failing to approve payments at directors' meetings;
1.6.3In the period 16 March 2015 to 6 September 2016, making payments totalling at least $648,106.63 to its members;
1.6.4Making significant payments to Juluwarlu Group Aboriginal Corporation which funds were then used to pay YAC members. The circumstances of such payments include:
(a)On 10 November 2014, being the date of a Special General Meeting, making a payment of $98,309.20 to JGAC; and
(b)In the period 11 November 2014 to 24 November 2016, 126 cheques for $500 each were withdrawn from JGAC Community Solutions Cheque Account in the amount of $63,000 and it is reasonable to infer that some or all of these cheques were payable to YAC members;
is and has been:
1.7contrary to the interests of the members as a whole; and
1.8oppressive to, unfairly prejudicial to or unfairly discriminatory against a member or members whether in that capacity or in any other capacity;
2.A declaration that special resolutions purportedly carried at the 2016 YAC AGM were not validly carried;
3.An order pursuant to section 166-5(b) of the CATSI Act that the rule book of YAC registered on 4 December 2016 be repealed and replaced with the previous version, being the rule book of YAC registered on 15 March 2016;
4.An injunction pursuant to section 576-25(2) of the CATSI Act requiring YAC to lodge with ORIC a financial report for the 2018 Financial Year that complies with the CATSI Act, the CATSI Regulations and relevant accounting and auditing standards;
5.An order that a receiver be appointed over the property of YAC;
6.Such further or other order as to this Honourable Court may seem fit; and
7.Costs.

WMYAC is funding and controlling the conduct of the proceeding by the plaintiffs

YAC's abuse of process case is based upon WMYAC funding the legal costs of the plaintiffs in this proceeding, having control over the way the plaintiffs conduct this proceeding, having funded the AS plaintiffs in the AS proceeding and having had control over the way the plaintiffs conducted their case in the AS proceeding.
The plaintiffs gave notice pursuant to O 9A of the Rules of the Supreme Court 1971 (WA) that WMYAC is an interested non‑party in relation to the plaintiffs. An interested non-party means a person who provides financial assistance to a party for the purposes of conducting the case and exercises direct or indirect control or influence over the way in which the party conducts the case.
The plaintiffs, for the purposes of this application, admit that WMYAC paid the AS plaintiffs' legal fees in the AS proceeding and are paying the legal fees of the plaintiffs in this proceeding. The first plaintiff has affirmed that the plaintiffs are unable to pay the costs of this action and need the financial assistance of WMYAC to bring this action.
In his oral submissions counsel for the plaintiffs, Mr Bennett, submitted that WMYAC could not bring an oppression application under s 166‑5 of the CATSI Act because an application may be made only by a member or former member of the corporation, but that WMYAC has an interest in ensuring that the affairs of YAC are conducted in a manner that is not oppressive to the members as a whole or unfairly discriminates against members. In their written submissions the plaintiffs say that the pursuit of the claims in the AS proceeding, and the payment of legal fees to enable those claims to be pursued, was in the interests of the members of WMYAC and the pursuit of the plaintiffs' claims in this proceeding and the funding of this proceeding is in the interests of members of WMYAC. The plaintiffs further say that the proceedings were commenced to protect the rights of Yindjibarndi people and the payments made by WMYAC further that aim.
I find that WMYAC exercises control over the way in which the plaintiffs conduct the present proceeding, and exercised control over the way in which the AS plaintiffs conducted the AS proceeding.

The issue concerning WMYAC funding the plaintiffs' legal costs

YAC contends that WMYAC is contravening provisions of the CATSI Act and WMYAC's rules by paying the legal costs of the plaintiffs in this proceeding. YAC also says that WMYAC contravened its rules and the CATSI Act by funding the AS plaintiffs' legal costs of the AS proceeding. Whether WMYAC contravened its rules and the CATSI Act by funding the legal costs of the AS plaintiffs is not the point in issue in this proceeding. The court is concerned in this proceeding whether it is an abuse of the processes of the court for WMYAC to pursue this proceeding by funding the legal costs of the plaintiffs.
The plaintiffs say that WMYAC is not contravening its rules or the CATSI Act by funding the plaintiffs' legal costs because it is doing so for the benefit of its members and its rules, and the CATSI Act, permit it to apply its funds for that purpose.
Before outlining YAC's contention that WMYAC is contravening its rules and the CATSI Act by funding the plaintiffs' legal costs, and the plaintiffs' response to that contention, I will set out some of the relevant rules and statutory provisions.

Some relevant WMYAC Rules and CATSI Act provisions

The internal governance of WMYAC is governed relevantly by its constitution (WMYAC Rule Book) and the CATSI Act. The WMYAC Rule Book includes rules governing the corporations' objectives, directors and the application of its funds.
The objectives are set out in r 2 which provides:
The corporation aims to:
•provide direct relief from poverty, sickness, suffering, misfortune, destitution or helplessness among Aboriginal people, especially the common law holders;
…
The corporation may:
•advance and promote the well being of Aboriginal people, especially the common law holders;
•provide environmental, social, economic and cultural benefits to Aboriginal people, especially the common law holders;
•maintain, protect, promote and support the culture, native title traditions and customs, economic development, interests and social progress of Aboriginal people, especially the common law holders;
…
In carrying out its objectives, the corporation shall ensure no portion of its funds or property are paid or applied directly or indirectly by way of dividends, bonus or otherwise however by way of profit to any member, except in accordance with rule 9.
The application of funds by WMYAC is dealt with in r 9 which provides:
9.Application of funds
Directors can use the money and property of the corporation to carry out its business.
They cannot give the money and property to members of the corporation.
Note: This rule does not stop the corporation from making reasonable payment as permissible in accordance with its charitable status to:
•a member in their capacity as an employee; or
•a member under a contract for goods or services provided; or
•a member by way of special assistance in accordance with the objectives set out in sub rule 2.1 as approved by the directors up to a maximum aggregate sum of $100,000 in any financial year.
Rule 5 deals with directors of the corporation. Rule 5.14 provides:
If a corporation wants to give a financial benefit to a director or related party (such as a spouse of a director) it must get the approval of the members by following the procedure in part 6.6 of the CATSI Act.
The first plaintiff is a director of WMYAC. I find, for the purposes of this application, that the second plaintiff is a related party.
Part 6‑6 of the CATSI Act is concerned with the requirement for member approval for related party benefits. Section 284‑1 provides that for a corporation to give a financial benefit to a related party of the corporation, the corporation must obtain the approval of its members in the way set out in div 290.
I find for the purposes of this application that each of the plaintiffs is a related party of WMYAC.
Section 293‑5 of the CATSI Act gives guidelines on what will be a financial benefit but there is no exhaustive definition. Section 293‑5(1) provides that in determining what constitutes giving a financial benefit:
(a)give a broad interpretation to financial benefits being given, even if criminal or civil penalties may be involved; and
(b)the economic and commercial substance of conduct is to prevail over its legal form; and
(c)disregard any consideration that is or may be given for the benefit, even if the consideration is adequate.
Section 293‑5(2) makes three specific extensions by providing that the giving of a financial benefit includes:
(a)giving a financial benefit indirectly, for example, through one or more interposed entities;
(b)giving a financial benefit by making an informal agreement, oral agreement or an agreement that has no binding force;
(c)giving a financial benefit that does not involve paying money (for example by conferring a financial advantage).
For additional guidance s 293‑5(3) gives the following six examples of giving a financial benefit to a related party:
(a)giving or providing the related party finance or property;
(b)buying an asset from or selling an asset to the related party;
(c)leasing an asset from or to the related party;
(d)supplying services to or receiving services from the related party;
(e)issuing securities or granting an option to the related party;
(f)taking up or releasing an obligation of the related party.
Member approval is not required if the giving of the benefit falls within an exception set out in div 287. The only possibly relevant exception is s 287‑1(3) which relates to giving a benefit by the payment of expenses incurred by a related party in performing duties as an officer of the corporation. The first plaintiff is an officer of WMYAC, but the plaintiffs have not argued that he has incurred the legal expenses of pursuing this proceeding in the performance of his duties as an officer of WMYAC.
Division 290 specifies the requirements for valid member approval. WMYAC has not obtained the approval of the corporation members in the way set out in div 290 of the CATSI Act.

YAC contends WMYAC is contravening its rules and CATSI Act pt 6‑6

YAC says that WMYAC is failing to comply with both limbs of r 9 in funding the plaintiffs' legal costs in this proceeding. YAC says that WMYAC is not carrying out its business by reference to the objectives in r 2 and in funding the plaintiffs' legal costs WMYAC is giving money to two of its members contrary to the second limb of r 9. YAC says that the note to r 9 does not apply to the plaintiffs.
YAC says that pt 6‑6 of the CATSI Act requires member approval to give a financial benefit to a related party, WMYAC is giving a financial benefit to the plaintiffs by paying their legal costs, each of the plaintiffs is a related party and WMYAC has not obtained the approval of its members in the way set out in div 290. Therefore, YAC says in funding the plaintiffs' legal costs WMYAC is not complying with s 284‑1.
YAC says that in paying the legal costs of the AS plaintiffs in the AS proceedings WMYAC was not complying with s 284‑1 for the same reasons.

Plaintiffs deny WMYAC is contravening its rules or CATSI Act

The plaintiffs say that WMYAC did not merely pay funds to the plaintiffs in this proceeding or in the AS proceeding. It paid invoices rendered for legal fees associated with the conduct of those proceedings, which proceedings are, and were, in the interests of its members and are consistent with its objectives. The objectives include to advance and promote the wellbeing of Aboriginal people, especially the common law holders. The AS proceeding related to the dispute between YAC, and those of its members who were also members of WMYAC, and the exclusion of, and attempts to exclude, Yindjibarndi people, who are members of WMYAC, from participating in YAC.
The plaintiffs point to the judgment of Prichard J in Sandy [No 4] where her Honour found that it was not in the best interest of YAC for Yindjibarndi people to be excluded from membership of YAC, on the basis that they were also members of WMYAC.[16] Pritchard J noted two reasons why it is important for Yindjibarndi people to participate in YAC:
Membership of YAC is significant in at least two respects. Decisions in relation to matters impacting the native title rights of the Yindjibarndi people must be made by YAC, as the trustee of those rights. Membership of YAC thus carries with it the ability to participate in those decisions. In addition, compensation for acts which are inconsistent with the Yindjibarndi's native title rights, pursuant to the Participation Agreement, is paid to YPCT and YCT, and to the extent that any of these funds are distributed to individuals (such as in the form of vouchers for food or other purchases) such distributions are now made only to persons who are members of YAC. (In the past, vouchers were given to Aboriginal people even if not members of YAC.) To deny membership of YAC to a Yindjibarndi person, merely because that person is a member of WMYAC, would be to deny that person any meaningful ability to participate in decisions affecting the native title rights of the Yindjibarndi people, and to deny them the financial benefits of any compensation paid for the benefit of the holders of native title under the Daniel determination.[17]
[16] Sandy [No 4] [309] ‑ [316].
[17] Sandy [No 4] [309].
Therefore, the plaintiffs argue, members of WMYAC have an interest in ensuring that their rights to membership of YAC, and to participate in the decision making of YAC, are not denied.
For the same reasons, the plaintiffs say, it is in the interest of YAC, and therefore the members of WMYAC who are members of YAC, or should be allowed to be members, for YAC's affairs, including its financial affairs, to be properly conducted. It follows, the plaintiffs say, that the pursuit of the claims in the AS proceeding and the payment of legal fees to enable those claims to be pursued was in the interests of the members of WMYAC. The plaintiffs in the AS proceedings did not personally profit from the proceedings or the provision of funding in relation to those proceedings. The payments were not made 'by way of profit to any member'. Therefore the plaintiffs say, the payment of legal fees for the AS plaintiffs did not constitute the provision of money or property to a member of WMYAC in breach of WMYAC's Rule Book, or a financial benefit within the meaning of pt 6‑6 of the CATSI Act to a director or a related party of WMYAC.
The plaintiffs' claims in the present proceedings concern alleged oppressive conduct of the affairs of YAC including the following matters. First, at its AGM on 30 November 2016, YAC rejected 27 of the 28 proxies lodged by YAC members who were also members of WMYAC and, the plaintiffs say that in those circumstances, resolutions passed by YAC upon which the relevant proxy holders were excluded from voting are invalid. Relevantly, by those resolutions:
(1)rule 4.3 was amended such that directors can now only call general meetings by passing a resolution at a directors' meeting or by a circular resolution, that is, a director can no longer independently call a general meeting;
(2)rule 4.12 was amended such that only members can be appointed as proxies thereby circumventing the ruling of Kenneth Martin J in Adams v Yindjibarndi Aboriginal Corporation RNTBC;[18] and
(3)rule 5.5 was amended such that directors have two year terms rather than one year terms and the following words were inserted: 'If, despite the operation of section 246‑25(4) of the CATSI Act, the terms of all directors expire so that there are no directors appointed at a particular time, the directors holding office immediately before the expiry will continue to hold office until the members appoint new directors or reappoint the existing directors by resolution at a general meeting', thereby circumventing the ruling in Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] (Sandy [No 2]).[19]
[18] Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467.
[19] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75.
The second matter relied on in this proceeding is that YAC failed to lodge with ORIC an audited consolidated financial report for the financial year ended 30 June 2018 that complies with the CATSI Act, CATSI regulations, relevant accounting and auditing standards and the findings in the AS proceeding.
The third matter is that YAC made payments to members and other recipients in breach of the WMYAC Rule Book, including significant payments made to Juluwarlu Group Aboriginal Corporation (JGAC), which funds were then used to pay YAC members.
The plaintiffs say that, for the same reasons as applied to the AS proceeding, the relief sought in these proceedings, and the funding provided to pursue this proceeding, is not to profit the plaintiffs personally; it is to ensure that YAC's affairs are properly conducted, which is important to, and for the benefit of, Yindjibarndi people generally and members of WMYAC.
The plaintiffs say that the payment of the plaintiffs' legal costs in this proceeding by WMYAC is to enable the proceedings, which could not otherwise be pursued, to proceed in the interests of Yindjibarndi people especially the common law holders and members of WMYAC.
The plaintiffs say that WMYAC is paying invoices rendered by the lawyers to prosecute this proceeding; the plaintiffs are deriving no personal benefit. The plaintiffs say the pursuit of this proceeding is within the objectives of WMYAC and in carrying out those objectives WMYAC is not paying any funds 'by way of profit' to the plaintiffs.
The plaintiffs say that WMYAC is not 'giving' money to them and is not in breach of r 9.
The plaintiffs say that the payment to the plaintiffs' lawyers, to pursue this proceeding in the interests of WMYAC members, is not giving a financial benefit to the plaintiffs and hence does not contravene s 284‑1 of the CATSI Act.

Prima facie case established

I find there is a prima facie case that WMYAC has breached, and is breaching, its rules and s 284‑1 of the CATSI Act by paying the plaintiffs' legal fees in this proceeding. However, it is arguable that those payments are not 'by way of profit' to the plaintiffs in this proceeding and do not amount to 'giving a financial benefit' to the plaintiffs. It is arguable that the payments are made to the lawyers for the plaintiffs to pursue the proceeding, which is to advance and promote the wellbeing of Aboriginal people, especially the common law holders and WMYAC members, and are not payments by way of profit to the plaintiffs, or amount to giving a financial benefit to the plaintiffs, and do not contravene WMYAC's Rules or s 284‑1 of the CATSI Act.
I will not finally determine the factually and legally complex question of whether WMYAC has contravened its rules and the CATSI Act as alleged because it is unnecessary and inappropriate to do so. It is unnecessary because, for the reasons I will explain the contravention of the WMYAC Rules and CATSI Act alleged by YAC, if established, would not establish that the present proceeding is an abuse of process. It is inappropriate because if the alleged contraventions are established, any person involved in the contraventions may be in contravention of a civil penalty provision of the CATSI Act and liable to a penalty or to pay compensation in properly constituted proceedings brought by a person with authority to bring proceedings under the CATSI Act. Only the Registrar of Aboriginal and Torres Strait Islander Corporations (Registrar) may apply for a declaration of contravention or a pecuniary penalty order.

Abuse of process - ground 1

The first ground on which YAC asserts the plaintiffs' amended originating summons is an abuse of process, is that WMYAC is funding the plaintiffs' legal expenses contrary to its rule book and the CATSI Act. For the purposes of this application I will assume, without finding, that in paying the plaintiffs' legal costs of this proceeding WMYAC has failed to comply with r 2 of its rules, by paying funds by way of profit to the plaintiffs, and r 9, by giving money to the plaintiffs, and has failed to comply with r 5.14 and s 284‑1 of the CATSI Act by giving a financial benefit to the plaintiffs.
In Moti v The Queen[20] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ adopted the statement of McHugh J in Rogers v The Queen that:
although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.[21]
[20] Moti v The Queen (2011) 245 CLR 456, 463 ‑ 464.
[21] Rogers v The Queen (1994) 181 CLR 251, 286.
YAC says that this case falls within the third of those categories of abuse of process. The plaintiff relies in particular on the reasons for judgment of the members of the High Court in Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (Strickland).[22]
[22] Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1.
Strickland concerned prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic). Pursuant to the Australian Crime Commission Act 2002 (Cth) (the ACC Act), the Australian Crime Commission (the ACC) may conduct a special investigation into matters relating to federally relevant criminal activity and an examiner may conduct an examination of a witness for the purposes of that investigation. A person appearing as a witness at such an examination is prohibited from refusing to answer a question that the examiner requires the person to answer. In December 2008, the ACC received information concerning allegations that a company was involved in criminal activity. The ACC did not undertake any investigation of its own, but instead referred the allegations to the Australian Federal Police (the AFP) and offered to allow the AFP to utilise for the AFP's own purposes the ACC's coercive powers to examine witnesses. In 2010, the ACC compulsorily examined the appellants. Prior to their examinations, each appellant had declined to participate in a cautioned record of interview with the AFP. Several AFP officers watched each examination from a nearby room and their presence was not disclosed to the appellant under examination. Following each examination, the examiner appointed under the ACC Act made orders permitting the dissemination of examination material to the AFP and the Commonwealth Director of Public Prosecutions (the CDPP). The ACC then provided audio recordings of the examinations to both the AFP and the CDPP.
The appellants were later charged with Commonwealth and Victorian offences. On the pre-trial applications of each appellant to the Supreme Court of Victoria, the primary judge ordered that the proceedings on each indictment be permanently stayed as an abuse of process. On appeal, the Court of Appeal set aside the orders of the primary judge and concluded that the stay applications should be refused.
By grants of special leave, the appellants appealed to the High Court. The Court held, unanimously, that the ACC had acted unlawfully: the ACC had not conducted a special investigation into the matters the subject of the AFP investigation or matters otherwise relevant to the examination of the appellants, but had acted at all times simply as a facility for the AFP to cross‑examine the appellants under oath for the AFP's own purposes. A majority of the Court held, consequently, that the appellants' prosecutions ought to be stayed, as, in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute. A plurality of the Court held that this conclusion was further supported by the fact that the prosecution had derived a forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking them into a version of events from which they could not credibly depart at trial. For the same reason, at least three of the appellants had suffered a forensic disadvantage as a result of the examinations. The plurality held that given the wide dissemination of the examination product within the AFP and the Office of the CDPP, the forensic disadvantage and consequent prejudice to the fair trials of the appellants were incurable.
In Strickland, Edelman J said that the notion of repute, or public confidence, is a construct that is concerned with the systemic protection of the integrity of the court within an integrated system of justice.[23] Edelman J then considered the notion of the integrity of the court in the context of a criminal proceeding, where the function of initiating and maintaining a criminal proceeding is vested in the executive and the function of hearing and determining the proceeding is vested in the courts. His Honour elaborated:
The notion of the integrity of the court is a loose principle which is not easily applied to a particular case. This is one reason why it has been said in this area of law that forms of expression should be 'understood in the context of the particular facts of each case' and should not 'be read as attempting to chart the boundaries of abuse of process'. In a case of the nature of these appeals, the question to be asked is whether, despite the substantial public interest in pursuing a trial of the accused, the trial must be stayed due to the threat to the integrity of the court arising from the systemic incoherence that would result if the trial were allowed to proceed. That incoherence arises where the manner in which the case against the accused was developed and brought was contrary to basic tenets of the Australian criminal justice system, as embodied in a statute.[24]
[23] Strickland [257].
[24] Strickland [261].

In Strickland, all seven members of the High Court agreed that the ACC examiner had acted illegally and strongly condemned the actions of both the ACC and the AFP. In their joint judgment Kiefel CJ, Bell and Nettle JJ said that 'the whole exercise was profoundly unlawful'.[25] The plurality said that there is a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and therefore where a defect in process is so profound as to offend the integrity and functions of the court, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.[26] The plurality found that the prosecution derived a forensic advantage from the unlawful examinations which fundamentally altered the accusatorial process for the investigation, prosecution and trial of the offence charged.
[25] Strickland [90].
[26] Strickland [106].
This case is far removed from Strickland. Assuming the payment of the plaintiffs' legal costs is in contravention of WMYAC's rules and the CATSI Act provisions, that is not a matter which affects the trial of the issues in this proceeding. The coercive powers of the State have not been used, or misused, to obtain evidence or further the plaintiffs' case in any way.
In Nelson v Nelson McHugh J observed:
In most cases, the statute will provide some guidance, express or inferred, as to the policy of the legislature in respect of a transaction that contravenes the statute or its purpose. It is this policy that must guide the courts in determining, consistent with their duty not to condone or encourage breaches of the statute, what the consequences of the illegality will be. Thus, the statute may disclose an intention, explicitly or implicitly, that a transaction contrary to its terms or its policy should be unenforceable. On the other hand, the statute may inferentially disclose an intention that the only sanctions for breach of the statute or its policy are to be those specifically provided for in the legislation (citation omitted).[27]
[27] Nelson v Nelson (1995) 184 CLR 538, 613.
Whether or not allowing this proceeding to continue, assuming that the funding of the plaintiffs' legal costs by WMYAC contravenes WMYAC's rules and provisions of the CATSI Act, would bring the administration of justice into disrepute requires a consideration of all of the circumstances, starting with the CATSI Act provisions relating to related party benefits and WMYAC's rules relating to the application of funds.
Section 284‑1 provides that a corporation can provide related party financial benefits but, unless the benefit falls within one of the exceptions set out in div 287, the corporation must first get the approval of members. The consequences of contravention of s 284‑1 are expressly provided for in s 284‑5 of the CATSI Act:
284‑5Consequences of breach
(1)If the corporation or entity contravenes section 284‑1:
(a)the contravention does not affect the validity of any contract or transaction connected with the giving of the benefit; and
(b)the corporation or entity does not commit an offence.
Note:A Court may order an injunction to stop the corporation or entity giving the benefit to the related party (see section 576‑25).
(2)A person contravenes this subsection if they are involved in a contravention of section 284‑1 by a corporation or entity.
Note 1:This subsection is a civil penalty provision (see section 386‑1).
Note 2:Section 694‑55 defines involved in.
(3)A person commits an offence if they are involved in a contravention of section 284‑1 by a corporation or entity and the involvement is dishonest.
Penalty: 2,000 penalty units or imprisonment for 5 years, or both.
Also important is s 694‑95 which relevantly provides:
(2)An act, transaction, agreement, instrument, matter or thing is not invalid, void, voidable or unenforceable merely because of:
(a)a contravention of section 284‑1 or 284‑5;
In this case the CATSI Act expressly provides that contravention of s 284‑1 does not make an act, matter or thing invalid, void, voidable or unenforceable merely because it is a contravention of s 284‑1 or s 284‑5.
A person involved in the contravention (which may be the person who receives the financial benefit) may be subject to a declaration of contravention under s 386‑1 of the CATSI Act. If the contravention, amongst other things, materially prejudices the interest of the corporation or its members, the court may also impose a pecuniary penalty under s 386‑10 of the CATSI Act. A compensation order may be made under s 386‑15 of the Act in respect of damage to the corporation, subject to the operation of s 576‑1.
Section 576‑25(1) provides that if a person has engaged in conduct that constitutes, among other things, a contravention of the Act, the court may, on the application of the Registrar, or of a person whose interests have been, are, or would be affected by the conduct, grant an injunction restraining the person from engaging in the conduct.
Section 386‑20 provides who may apply for a declaration or order. The Registrar may apply for a declaration of contravention, a pecuniary penalty order or a compensation order. The corporation affected by the contravention of a civil penalty provision may apply for a compensation order. No other person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.
Having regard to the above provisions, the scheme of the CATSI Act is as follows. A corporation itself is not subject to any sanction as a result of it giving financial benefits to a related party. However, other persons (including a director of the corporation and the person receiving the financial benefit) may be subject to sanction if they are involved in a contravention of s 284‑1. The sanction faced by a party involved in the contravention is, depending on the circumstances, a declaration of contravention, a pecuniary penalty order, a compensation order (which may relate to damage suffered by the corporation) and a criminal conviction and sentence. The validity and enforceability of an act, matter or thing is not affected by the fact that it provides for the giving of a financial benefit to a related party. Only the Registrar may apply for a declaration of contravention or a pecuniary penalty order. No other person may apply for a declaration of contravention or a pecuniary penalty order.
The CATSI Act has provided guidance as to the policy of the legislature in respect of acts, matters or things that contravene s 284‑1. The following matters are important. First, an act, matter or thing is not invalid, void, voidable or unenforceable merely because of a contravention of s 284‑1 or s 284‑5. Secondly, only the Registrar or the corporation may take proceedings for a declaration of contravention, a pecuniary penalty order or a compensation order.
Part of the harmony and coherence of the law is its division of responsibility between courts and regulators. The enforcement of breaches of civil penalty provisions such as s 284‑1 is the responsibility of the Registrar.
The administration of justice will not be brought into disrepute if the proceeding continues when the Registrar has not taken steps to obtain an injunction to stop the corporation giving a benefit to the plaintiffs, or taken proceedings for a declaration of contravention or the imposition of a pecuniary penalty order or a compensation order. In Strickland, Edelman J said that to allow the trial to proceed would effectively stultify the operation of essential provisions of the ACC Act.[28] To allow this action to proceed will not effectively stultify the operation of the related party benefit provisions of the CATSI Act. The enforcement of those provisions, if contravened, is and will remain the responsibility of the Registrar.
[28] Strickland [285].
The administration of justice will not be brought into disrepute if the proceeding continues when the corporation is in breach of its rules by paying the plaintiffs' legal costs. Section 60‑10 of the CATSI Act provides that a corporation's constitution has effect as a contract between the corporation and its members, and between a member and each other member. A failure to comply with replaceable rules is not of itself a contravention of the Act.[29]
[29] CATSI Act s 60‑20.
Section 72‑10 of the CATSI Act provides that a corporation's constitution may contain an express restriction on, or a prohibition of, the corporation's exercise of any of its powers, such as r 5.14 or r 9. Section 72‑10(1) further provides that the exercise of power by the corporation is not invalid merely because it is contrary to an express restriction or prohibition in the corporation's constitution. Nor is the exercise of a power by the corporation invalid merely because it is contrary to or beyond the objects set out in the corporation's constitution.[30] In effect, the exercise of corporate power is validated.
[30] CATSI Act s 72‑10(2).
The administration of justice will not be brought into disrepute if the proceeding continues when, in paying the legal costs of the plaintiffs, the corporation has breached a rule where the CATSI Act provides that the exercise of the power by the corporation is not invalid merely because it is contrary to an express restriction or prohibition in the corporation's constitution.

Abuse of process - ground 2

The second ground of YAC's abuse of process application is more limited than the first ground. By its second ground, YAC seeks that [1.6] of the plaintiffs' amended originating summons be struck out on the ground that it is an abuse of process of the court.
The matter said to constitute an abuse of process is that WMYAC is an interested non‑party in this proceeding, and was an interested non‑party in the AS proceeding, and WMYAC, by the AS plaintiffs, could and should have raised the allegations made in [1.6] of the plaintiffs' amended originating summons in this proceeding in the AS proceeding.
In [1.6] of the amended originating summons the plaintiffs claim a declaration that the conduct of the affairs of YAC has been oppressive or unfairly discriminatory in making payments to members and other recipients in breach of YAC's r 8 and r 9 including:
1.6.1Routinely making payments that have only either been signed by an employee or a single director;
1.6.2Failing to approve payments at directors' meetings;
1.6.3In the period 16 March 2015 to 6 September 2016, making payments totalling at least $648,106.63 to its members;
1.6.4Making significant payments to Juluwarlu Group Aboriginal Corporation which funds were then used to pay YAC members. The circumstances of such payments include:
(a)On 10 November 2014, being the date of Special General Meeting, making a payment of $98,309.20 to JGAC; and
(b)In the period 11 November 2014 to 24 November 2016, 126 cheques for $500 each were withdrawn from JGAC Community Solutions Cheque Account in the amount of $63,000 and it is reasonable to infer that some or all of these cheques were payable to YAC members.
YAC says that those allegations could and should have been litigated in the AS proceeding. Indeed, the AS plaintiffs included those allegations in a proposed amendment to their Statement of Issues, Facts and Contentions (SFIC) which they unsuccessfully moved on the first day of the trial of the AS proceeding.
YAC says that successive proceedings by the same or by closely related parties may be an abuse of process. YAC referred in particular to the recent High Court decision in UBS AG v Tyne,[31] in which the High Court held that a successive proceeding in the Federal Court was an abuse of process because claims made in that court could and should have been litigated in earlier proceedings brought by a related party in the New South Wales Supreme Court.
[31] UBS AG v Tyne [2018] 92 ALJR 968 (UBS AG v Tyne).
The respondent in UBS AG v Tyne, in his capacity as trustee of the Argot Trust (the Trust), commenced proceedings in the Federal Court against the appellant (UBS), claiming damages and equitable compensation arising out of advice and representations made by UBS to Mr Tyne and 'through him' to related to entities, namely the former trustee of the Trust (ACN 074) and an investment company (Telesto). Mr Tyne was the controlling mind of ACN 074 and Telesto. The claimed loss arose in connection with the pledge of the Trust's assets to secure the liabilities of Telesto under credit facilities extended to Telesto by UBS. UBS had earlier brought proceedings in the High Court of Singapore against Telesto, as principal debtor, and Mr Tyne, as guarantor, for default on the credit facilities (the Singapore proceedings). ACN 074 was not a party to those proceedings. Before the Singapore proceedings were concluded, Mr Tyne, in his personal capacity, Telesto and ACN 074 (as trustee) commenced proceedings in the Supreme Court of New South Wales (the SCNSW proceedings). UBS applied for a permanent stay of the SCNSW proceedings. Ward J granted a temporary stay, holding that it was not evident that there would be overlap between the SCNSW proceedings and the Singapore proceedings. In written submissions filed on behalf of Telesto, Mr Tyne and ACN 074, it was foreshadowed that the latter two parties would discontinue their claims. Ward J gave leave to file amended pleadings. These were subsequently filed and removed Mr Tyne and ACN 074 as plaintiffs. The Singapore proceedings were finalised in favour of UBS, and UBS then successfully obtained a permanent stay of the SCNSW proceedings on the basis that, as a matter of substance, the Singapore proceedings 'covered' the causes of action pursued by Telesto, creating a res judicata. Mr Tyne, in his capacity as the trustee of the Trust, commenced in the Federal Court some 23 months after Ward J had granted leave to amend in the SCNSW proceedings (facilitating the discontinuance by Mr Tyne and ACN 074 as plaintiffs). Mr Tyne had become the trustee of the Trust. The claims made in the Federal Court proceedings arose out of the same facts, and were essentially the same claims as those in the SCNSW proceedings.
UBS applied for a permanent stay of the proceedings on grounds including that they were an abuse of process. The primary judge granted the stay, holding that the allegations were essentially the same as had been made by the Trust in the SCNSW proceedings before it discontinued its claims, and no 'proper explanation' had been given for the failure to prosecute them in the Supreme Court. On appeal to the Full Court, the majority set aside the stay holding that, in circumstances in which the Trust's claims had not been decided on the merits in the SCNSW proceedings, there was no unfairness in requiring UBS to answer them in them in the Federal Court proceedings.
By majority, the High Court allowed the appeal. At the outset of their joint judgment Kiefel CJ, Bell and Keane JJ said:
This appeal is concerned with the power to permanently stay proceedings as an abuse of the process of the court. The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. The issue in this appeal is whether one or both of those conditions is met in circumstances in which the factual merits of the underlying claim have not been determined and any delay in prosecuting the claim has not made its fair trial impossible.[32]
[32] UBS AG v Tyne [1].
The majority held that the timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. Hiving off the Trust's claim from the SCNSW proceedings, with a view to bringing it in another court after the determination of those proceedings, was the antithesis of the discharge of the duty imposed on parties to civil litigation in the Supreme Court and in the Federal Court. For the Federal Court to lend its procedures to the staged conduct of what was factually one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation was an abuse of the processes of the court, warranting a permanent stay of proceedings.
Senior counsel for YAC, Mr Hughston SC, referred to the following statement of Lord Bingham of Cornhill in Johnson v Gore Wood & Co approved by a majority of the High Court in UBS:
The appellants submitted that the court should not allow one or more of the number of plaintiffs, controlled by the same individual, to discontinue proceedings, stand back and allow those proceedings to continue to final determination, then, depending on the outcome of the earlier proceedings and without proper explanation, to commence fresh proceedings raising the same substratum of facts and, in substance, the same claims against the same defendant.[33]
[33] UBS AG v Tyne [7] citing Johnson v Gore Woods Co (a firm) [2002] 2 AC 1.
Kiefel CJ, Bell and Keane JJ said that whether conduct of that description rises to the level of an abuse of the processes of the court is a determination that requires consideration of all the circumstances. Their Honours said that, as Lord Bingham of Cornhill explained, that consideration requires the court to make:
a broad, merits‑based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all of the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.[34]
[34] UBS AG v Tyne [7].
The circumstances of this case are very different from those of UBS AG v Tyne. The AS plaintiffs commenced the AS proceeding in 2011. In August 2013, the parties reached agreement as to a basis on which they would settle the action which was contained in a deed of settlement and release (settlement deed). The settlement deed provided that, upon certain steps being taken, the proceeding would be dismissed with no determination on the merits. The parties fell into dispute in relation to completion of those steps and the proposed settlement did not come to fruition. However, certain steps were taken by the parties in partial compliance with the terms of the settlement deed.[35] Under the settlement deed, YAC was obliged to instruct a forensic accountancy firm nominated by the AS plaintiffs to investigate the financial affairs of YAC for the period 1 December 2010 to 15 September 2013 and to prepare a report. YAC instructed Korda Mentha to do this work and it produced a report (Korda Mentha report).[36]
[35] Sandy [No 4] [43].
[36] Sandy [No 4] [740].
The plaintiffs contended that the Korda Mentha report was presented at YAC's AGM on 10 September 2014. The plaintiffs alleged that discussion about issues arising from the Korda Mentha report was hindered, and not facilitated, by YAC and the chairperson.[37]
[37] Sandy [No 4] [742].
In about March 2016 Bennett + Co started acting for the AS plaintiffs. In March 2016 the court delivered judgment in Sandy [No 2] and Sandy [No 2] (S).[38] On 16 May 2016 ORIC delivered a compliance notice to YAC. The AS plaintiffs reformulated their claims in the AS proceeding. In August 2016, the AS plaintiffs filed a substituted SIFC which contained a new category of conduct headed 'Improper Administration of YAC Finances'. On 5 October 2016, at the request of the plaintiffs, the court issued a subpoena to JGAC to produce specified documents. JGAC objected to inspection of documents produced in answer to the subpoena. Relevant subpoenaed documents were produced for inspection on 18 November. After seeing documents produced on subpoena, the AS plaintiffs moved to amend their SFIC by inserting new paragraphs 76 and 89 in a minute of 2 December 2016.
[38] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 (S).

At the commencement of the trial of the AS proceeding, the AS plaintiffs moved to amend their SIFC in accordance with the minute of 2 December 2016. The proposed amendments included to insert new paragraphs 76 and 89. Paragraph 76 was as follows:
76.YAC has made and continues to make payments in breach of Rules 8 and 9 of the YAC Rule Book.
76.1YAC has routinely made payments that have only either been signed by an employee or a single director.
76.2There is no evidence that the majority of payments have been subsequently approved at a directors' meeting.
76.3In the period 16 March 2015 to 6 September 2016, YAC made payments totalling at least $648,106.63 to its members.
76.4The Korda Mentha report observed that 61% of YAC payments during the period 1 December to 15 September 2013 were made to JGAC or related parties, which included directors of YAC who are also members of YAC.
76.5YAC has made significant payments to JGAC which was then used to pay YAC members.
76.6On 10 November 2014, YAC made a payment of $98,309.20 to JGAC.
76.7In the period 11 November 2014 to 24 November 2016, 126 cheques for $500 each were withdrawn from JGAC Community Solutions Cheque Account in the amount of $63,000 and it is reasonable to infer that some or all of these cheques were payable to YAC members.
The amendment was refused by Prichard J. Her Honour's reasons were as follows. First, there was significant delay in making the application. To some extent the issues that had been in dispute had been overtaken by events and, in particular, by the decision of this court in another proceeding brought by the first plaintiff against YAC, Sandy v Yindjiharndi Aboriginal Corporation RNTBC.[39] Delay of itself was not necessarily determinative, the question was: what were the consequences of the delay? Secondly, YAC would not have an opportunity to answer the new allegations unless the trial was adjourned. Thirdly, the amendment should not be allowed because it would require the adjournment of the trial. Fourthly, the proposed amendments added allegations of financial mismanagement, the plaintiffs' case already alleged financial management and the plaintiffs would have some opportunity to make out their case of significant financial mismanagement already pleaded. Fifthly, the plaintiffs had had an opportunity to put their case and the need for the court to expeditiously resolve proceedings with a due sense of proportionality had been reached.
[39] Sandy [No 2], and Sandy [No 2] (S).
Counsel for the plaintiffs, Mr Bennett, submits that the AS plaintiffs applied to amend their SFIC at the earliest possible time. Senior counsel for YAC, Mr Hughston SC, says that that is contrary to the finding of Prichard J and this court is bound by, or at least should follow, the finding of her Honour.
Justice Prichard found that there had been a significant delay in making the amendment application. Her Honour accepted that the delay 'has arisen from the fact that the issues have not become apparent until seeing documents produced on subpoena' and that the subpoenas were issued by the court at the request of the plaintiffs 'very promptly after the amended statement of issues, facts and contentions was filed in August, and there has been no delay on the plaintiffs side in that respect'. However, her Honour said that those submissions, which her Honour accepted, failed to appreciate the broader context of the proceedings. The broader context to which her Honour referred was that the proceeding had been on foot since 2011, aspects of YAC's alleged financial management could be tried even if the amendment was refused and allowing the amendment would require the adjournment of the trial. Her Honour refused the amendment application for case management reasons.
The question now before the court is not whether the AS plaintiffs moved to amend their SFIC to insert new paragraphs 76 and 89 at the earliest possible opportunity. The question is whether the conduct of WMYAC, through the plaintiffs in this proceeding, in making the Irregular Payments Allegation in this proceeding, in the circumstances I have referred to, is misusing or abusing the process of the court.
The facts in UBS v Tyne are distinguishable from the present case in significant respects. First, in UBS v Tyne the court found that Mr Tyne perceived a forensic advantage to the Tyne related parties in holding back one of the party's claims.[40] That led to duplication of resources and increased costs, and delayed the resolution of the dispute between the Tyne related parties and UBS. Those features are not present in this case. WMYAC does not have, or perceive itself to have, a forensic advantage by not pursuing the Irregular Payments Allegations in the AS proceeding and later raising them in a new action. To the contrary, WMYAC, through the AS plaintiffs, tried to pursue the Irregular Payments Allegations in the AS proceeding but they were refused leave to amend their SFIC to raise the allegations.
[40] UBS v Tyne [55].
Secondly, this proceeding has not been brought by WMYAC through the plaintiffs to pursue only claims that existed at the time of the trial of the AS proceeding. In this proceeding WMYAC, through the plaintiffs, seeks a declaration that the affairs of YAC have been conducted oppressively and unfairly since judgment in Sandy [No 4], as well as relying on conduct which occurred before judgment in that action. The judgment in the AS proceeding did not mean that there was a final determination and could not reasonably have led YAC to understand that the plaintiffs, or WMYAC through the plaintiffs, could not and would not bring any further proceedings based on alleged oppressive or unfair conduct.
YAC says that the raising of the Irregular Payment Allegations in this proceeding is oppressive because YAC has already incurred substantial costs defending allegations of financial mismanagement in the AS proceeding. YAC says that what WMYAC, through the AS plaintiffs, tried to do then and what WMYAC through the plaintiffs in this proceeding are trying to do now is to raise the Irregular Payments Allegations as more instances of 'Improper Administration of YAC Finances'. YAC says that the AS plaintiffs were found by Prichard J to have had an opportunity to raise the Irregular Payments Allegations in the AS proceeding but failed to do so. The oppression, YAC says, is found in the significant delay in the resolution of the dispute and the inevitability of increased costs to YAC. At its core, YAC says, is the vexation of being required to deal again with claims that should have been resolved in the AS proceeding.
YAC says that it has already incurred substantial costs defending allegations of financial mismanagement in the AS proceeding. However, YAC has not incurred costs defending the Irregular Payments Allegations. Those allegations have not been previously tried and determined. Indeed, Pritchard J refused the proposed amendment to the AS plaintiffs' SFIC in the AS proceeding because YAC had no opportunity to consider and respond to those allegations.
YAC says that there is oppression to it in the significant delay in the resolution of the dispute. This proceeding, in which the plaintiffs seek relief including the appointment of a receiver, will proceed with or without the Irregular Payments Allegations. The inclusion of those allegations in the proceeding does not cause any significant delay in the resolution of the dispute constituted by the plaintiffs' claim of oppressive conduct and its claim for the appointment of a receiver.
The court must take account of all the facts of the case, focusing attention on the crucial question whether, in all of the circumstances, WMYAC, through the plaintiffs, is misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before. In all the circumstances WMYAC's conduct, through the plaintiffs, is not an abuse of the process of the court.
This is not a case where WMYAC, through the AS plaintiffs, chose to hold back a claim to obtain some perceived forensic advantage by bringing the claim in later proceedings through the plaintiffs in this proceeding.
It was not unreasonable for WMYAC, through the AS plaintiffs, not to have raised the Irregular Payments Allegations in the AS proceeding before their proposed amended SFIC in December 2016. Pritchard J refused the amendment because, if it had been allowed, it would have led to an adjournment of the trial and that should not be allowed for case management reasons. That is not a finding that WMYAC, through the AS plaintiffs, acted unreasonably by raising the Irregular Payments Allegations when they did and not earlier.
Raising the Irregular Payment Allegations by WMYAC, through the plaintiffs in this proceeding, does not occasion unjustifiable oppression to YAC. It is not an abuse of the process of the court.

Conclusion

YAC's application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere
11 SEPTEMBER 2019