Sandy v Yindjibarndi Aboriginal Corporation RNTBC (No 4) - [2018] WASC 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SANDY -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [No 4] [2018] WASC 124
CORAM:   PRITCHARD J
HEARD:   5 - 9, 12 - 14, 19 DECEMBER 2016, 9 FEBRUARY 2017
DELIVERED          :   20 APRIL 2018
FILE NO/S:   CIV 2072 of 2011
BETWEEN:   AILEEN SANDY
SYLVIA ALLAN
Plaintiffs
AND
YINDJIBARNDI ABORIGINAL CORPORATION RNTBC
First Defendant
STANLEY WARRIE in his capacity as representative of persons purportedly appointed as directors of the First Defendant on or after 15 December 2010
Second Defendant

Catchwords:

Corporations - Statutory corporations - Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 166-1 - Whether an Aboriginal and Torres Strait Islander corporation has engaged in oppressive conduct - Whether an Aboriginal and Torres Strait Islander corporation's conduct of its affairs, an actual or proposed act or omission, or a resolution, or a proposed resolution, of members or a class of members, is contrary to the interests of members as a whole - Whether an Aboriginal and Torres Strait Islander corporation's conduct of its affairs, an actual or proposed act or omission, or a resolution, or a proposed resolution, of members or a class of members, is oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member or members in that capacity of any other capacity

Corporations - Statutory corporations - Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 166-5 - Whether an order for relief should be made - Whether a receiver and manager of the Aboriginal and Torres Strait Islander corporation should be appointed - Whether an order addressing the future conduct of the Aboriginal and Torres Strait Islander corporation should be made

Legislation:

Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Corporations (Aboriginal and Torres Strait Islander) Regulations 2007 (Cth)
Corporations Act 2001 (Cth)
Native Title Act 1993 (Cth)
Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)

Result:

Alternative relief granted

Category: B

Representation:

Counsel:

Plaintiffs	:	Mr M L Bennett & Ms T J Elder
First Defendant	:	Mr V Houston SC, Mr J L Edwards & Ms T Jowett
Second Defendant	:	Mr V Houston SC, Mr J L Edwards & Ms T Jowett

Solicitors:

Plaintiffs	:	Bennett + Co
First Defendant	:	HWL Ebsworth Lawyers
Second Defendant	:	HWL Ebsworth Lawyers

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

Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467
Allways Resources Holdings Pty Ltd v Samgris Resources Pty Ltd [2017] QSC 74; (2017) 121 ACSR 1
Australian Securities and Investments Commission v Healey [2011] FCA 717; (2011) 196 FCR 291
Australian Securities Commission v Multiple Sclerosis Society of Tasmania (1993) 10 ACSR 489
Bell Group (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1
Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95; (2008) 66 ACSR 359
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Cheedy on behalf of the Yindjibarndi People v The State of Western Australia [2010] FCA 690
Cheedy on behalf of the Yindjibarndi People v The State of Western Australia [2011] FCAFC 100
Daniel v The State of Western Australia [2005] FCA 536
Dosike Pty Ltd v Johnson (1996) 16 WAR 241
Exton v Extons Pty Ltd [2017] VSC 14; (2017) 118 ACSR 411
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672; [2001] NSWCA 97
FMG Pilbara Pty Ltd / Ned Cheedy and Others on behalf of the Yindjibarndi People / Western Australia [2009] NNTTA 91; (2009) 259 FLR 293
FMG Pilbara Pty Ltd / Wintawari Guruma Aboriginal Corporation / Ned Cheedy and Others on behalf of the Yindjibarndi People / Western Australia [2009] NNTTA 99
Gaiman v National Association for Mental Health [1971] Ch 317
Hamilton v Whitehead (1988) 166 CLR 121
Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207
Jenkins v Enterprise Gold Mines NL (1992) 6 ACSR 539
John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63
Jones v Dunkel (1959) 101 CLR 298
Ledir Enterprises Pty Limited [2013] NSWSC 1332
Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1
Mills v Mills (1938) 60 CLR 150
Moses v The State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Murray on behalf of Yilka Native Title Claimants v The State of Western Australia (No 5) [2016] FCA 752
Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343
NC (dec'd) v The State of Western Australia (No 2) [2013] FCA 70
New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86
Ngurli Ltd, Carinya Ltd, Fitzroy Ltd & Myall Ltd v McCann [1953] HCA 39; (1953) 90 CLR 425
Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105
Noble Investments Pty Ltd v Southern Cross Exploration NL (2008) 174 FCR 301; [2008] FCA 1963
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442
Pat v Yindjibarndi Aboriginal Corporation [2011] WASC 354
Pettit v South Australian Harness Racing Club Inc [2006] SASC 306; (2006) 95 SASR 543
Popovic v Tanasijevic (No 5) [2000] SASC 87 [505]; (2000) 34 ACSR 1
Re Avonwood Homes Pty Ltd [2000] VSC 216
Re Bountiful Pty Ltd (1994) 12 ACLC 902
Re Five Minute Car Wash Service Ltd [1966] 1 WLR 745
Re Jermyn St Turkish Baths Ltd [1971] 1 WLR 1042
Re Norvabron Pty Ltd (No 2) (1986) 11 ACLR 279
Re Tivoli Freeholds Ltd [1972] VR 445
Sampi v The State of Western Australia [2005] FCA 777
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75
Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1397; (2009) 181 FCR 201
Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393
Shum Yip Properties Development Ltd v Chatswood Investment and Development Co Pty Ltd (2002) 166 FLR 451; [2002] NSWSC 13
Szencorp Pty Ltd v Clean Energy Council Ltd [2009] FCA 40; (2009) 69 ACSR 365
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Thomas v H W Thomas Ltd (1984) 2 ACLC 610
TJ v The State of Western Australia [2015] FCA 818; (2015) 242 FCR 283
Tomanovic v Argyle HQ Pty Ltd; Tomanovic v Global Mortgage Equity Corporation Pty Ltd; Sayer v Tomanovic [2010] NSWSC 152
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 6] [2014] WASC 278; (2014) 102 ACSR 130
Turnbull v National Roads and Motorists Association Ltd [2004] NSWSC 577; (2004) 50 ACSR 44
Ubertini v Saeco International Group SpA (No 4) [2014] VSC 47; (2014) 98 ACSR 138
Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v The State of Western Australia [2017] FCA 803
Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v The State of Western Australia [No 2] [2017] FCA 1299
Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459
Weatherall v Satellite Receiving Systems (Aust) Pty Ltd [1999] FCA 741; (1999) 92 FCR 101
Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1
Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11; (1987) 162 CLR 285

Table of Contents

1. The Yindjibarndi people, YAC, subsidiaries of YAC and the role of YAC in relation to the native title rights of the Yindjibarndi people

(a) The Yindjibarndi people and their native title rights and interests over land in the Pilbara region of Western Australia

(b) The Yindjibarndi #1 claim

(d) YAC's subsidiaries and related entities

(e) Other related investigations and proceedings in respect of which YAC has been involved

Related proceedings before this Court

Related procedures pursued by the Registrar of ATSI corporations

2. The pleadings, the evidence and findings as to credibility of the witnesses

(a) The history of the action

(b) The trial and the evidence

(d) The defendants' failure to call the directors of YAC apart from Mr Mack and Ms Cheedy

3. Some background to this litigation ‑ a dispute between YAC and those of its members who are also members of the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)

4. What these proceedings are not about

5. Legal principles concerning conduct of directors under the CATSI Act

(a) The duty on a director to exercise their powers in good faith in the best interests of the corporation, and for a proper purpose

(b) Section 166-1 of the CATSI Act

Acting contrary to the interests of members as a whole under s 166‑1(1)(d)

Oppressive conduct under s 166-1(1)(e)

6. Overview of the conduct which the plaintiffs contend constitutes oppressive conduct

(a) Concerns about the management of its YAC, including the management of its financial affairs, and the role of its CEO, Mr Woodley

(b) The dispute about whether YAC should enter into an ILUA with FMG

Background to this aspect of the dispute

The emergence of differences of view within the Yindjibarndi community about whether to enter into an agreement with FMG

The differences of view in relation to the FMG Agreement

Attempts to secure YAC's agreement to enter into the FMG Agreement

Attempts to change the Applicant in the Yindjibarndi #1 claim

The belief of YAC's directors that FMG was behind WMYAC and the attempts of its members to pursue entry into the FMG Agreement

(d) Allegations of oppressive conduct in the context of membership disputes

7. Whether the plaintiffs have established that YAC engaged in oppressive conduct

7.1 Alleged denial of membership rights and improper conduct in dealing with membership applications

(a) Alleged wrongful conduct of YAC in excluding and hindering members in respect of their rights to participate as members of YAC, and invalid resolutions made by YAC in relation thereto

(b) Threatened conduct of YAC to convene a meeting for the purposes of amending rules 3.1 and 3.7 of YAC's Rule Book, in order to limit the persons who can be members of YAC and the grounds upon which membership may be cancelled

(c) Wrongful conduct and exercise of power by YAC and its purported officers in refusing and/or failing to consider membership applications, during the period 2011‑2016

(d) Wrongful denial of membership to persons approved by the board in 2014 to be eligible for membership

(e) Approval (in November 2015) of membership applications by YAC's purported board, and subsequent registration of the membership applicants as members of YAC, for an improper purpose

(f) Apparent bias in dealing with membership applications in June 2016

7.2 Alleged failure to conduct or manage meetings properly and alleged improper administration of YAC's finances

(a) Failure to conduct meetings properly - Failure to explain YAC's annual financial report or provide members an opportunity to ask questions or make comments at the AGM held on 21 March 2012; and

Improper administration of finances - Failure to explain YAC's annual financial report or provide members an opportunity to ask questions or make comments at the AGM held on 21 March 2012

(b) Discussion about financial issues hindered at the AGM held on 10 September 2014; and

Issues arising out of the Korda Mentha report tabled at the AGM held on 10 September 2014

(c) Failure to report to members in compliance with subdivision 333‑A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2007 (Cth) due to the failure to prepare consolidated accounts

(d) Signing off on the 2014 annual financial report when it contained material errors

(e) CEO's report not accepted on the basis that it did not relate to the affairs of YAC in the 2014 and 2015 financial years

(f) Alleged oppressive conduct by operating without any validly appointed directors

(g) Incurring costs in defending legal proceedings without authority from the board; and

Incurring and paying expenses in the period when YAC had no validly appointed directors

7.3 Alleged continual non-compliance with the CATSI Act and Rule Book

(a) First Compliance Notice

(b) Second Compliance Notice

(c) Failure to adequately maintain the Register of Members

8. The overall relief which should be granted in respect of the conduct of YAC within s 166‑1(1) which the plaintiffs have established

Postscript: Determination of the Yindjibarndi #1 claim

PRITCHARD J:

The plaintiffs are members of the Yindjibarndi people, and are recognised as Elders in the Yindjibarndi community.[1] They are also members of the first defendant, the Yindjibarndi Aboriginal Corporation RNTBC (YAC).
[1] Originally Ms Mavis Pat was also a plaintiff in this action. She discontinued her action in July 2013.
YAC is an Aboriginal and Torres Strait Islander (ATSI) corporation which is incorporated pursuant to, and registered under, the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act).[2] It is governed by the requirements of that Act, and not the Corporations Act 2001 (Cth). At the date of the trial, Mr Warrie was a director of YAC. At various times, he has been the Chairperson of YAC. He was joined as a defendant, as a representative of the directors of YAC, in April 2012.
[2] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 16-5.
In these proceedings, the plaintiffs contend that since December 2010, YAC has acted, and has threatened to act, in contravention of the requirements of the CATSI Act and in contravention of its constitution (the YAC Rule Book).[3] The plaintiffs contend 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, are contrary to the interests of the members of YAC as a whole, and in addition, or alternatively, are oppressive to, unfairly prejudicial to, or unfairly discriminatory against members of YAC, whether in that capacity or in any other capacity, within the meaning of s 166‑1(1) of the CATSI Act.[4] The plaintiffs also contend that the register of members of YAC (Register) is erroneous and should be corrected.[5] (For convenience, I will refer to the plaintiffs' case, in shorthand, as alleging 'oppressive conduct' on the part of YAC, recognising that that description encompasses all of the forms of conduct referred to in s 166-1(1)(d) and (e) of the CATSI Act.)
[3] Plaintiffs' Substituted Notice of Originating Motion [18].
[4] Plaintiffs' Substituted Notice of Originating Motion [19].
[5] Plaintiffs' Substituted Notice of Originating Motion [20].
The plaintiffs contend that YAC has 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 the Rule Book.[6] Within these five broad categories, the plaintiffs allege that YAC has engaged in 20 separate instances of oppressive conduct, over the course of approximately six years. As I understand it, the plaintiffs' case is that these instances of alleged conduct are, individually and collectively, said to constitute oppressive conduct for the purposes of the CATSI Act.
[6] Plaintiffs' Substituted Statement of Issues, Facts and Contentions (PSIFC) [89].
Under the CATSI Act, the Court has expansive powers to grant relief if it finds that an Aboriginal and Torres Strait Islander corporation (ATSI corporation) has engaged in oppressive conduct.[7] The plaintiffs seek that the Court grant relief in the form of an order for the appointment of a receiver and manager (Receiver) of the property of YAC, for a period of 12 months from the date of the order, or until further order, 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 say the Receiver should perform include entering the names of specified persons onto the Register as members of YAC; considering (and, if possible, deciding) any membership applications which remain undecided or which are 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.
[7] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 166-5.
There was no dispute that the plaintiffs have the standing to apply for an order pursuant to s 166-1, having regard to the requirements for standing set out in s 166-10(a) of the CATSI Act.
The defendants also do not dispute that the main issues to be determined are whether YAC has engaged in oppressive conduct of the kind encompassed by s 166-1 of the CATSI Act.[8] However, the defendants' case in respect of each of the instances of alleged oppressive conduct is that the conduct in question did not constitute oppressive conduct, or even if it did, no relief should be granted in all of the circumstances, or alternatively, that relief in the nature of the appointment of a Receiver is not warranted in all of the circumstances.[9] For completeness, I note that in response to some of the alleged instances of oppressive conduct, the defendants sought to rely on s 166‑1(2) of the CATSI Act, which precludes the Court from making an order under s 166-1 in certain circumstances.[10] However, in their closing submissions, counsel confirmed that the defendants no longer maintained that plea.[11]
[8] Defendants' Statement of Issues, Facts and Contentions (DSFIC) [1].
[9] DSFIC [179] - [180].
[10] That subsection provides that the Court must not make an order by way of relief if an officer or employee of the corporation does, or refrains from doing, or proposes to do, the act said to constitute oppressive conduct in good faith, and with the belief that doing the act is necessary to ensure that the corporation complies with a Native Title legislation obligation.
[11] Defendants' Reply Submissions [8].
For the reasons which follow, I am satisfied 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. I am also satisfied 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, I not persuaded that the appropriate relief in respect of any such conduct is the appointment of a Receiver. That is because I have formed the view that in respect of some oppressive conduct, no relief is warranted at all (because the oppression has already been remedied, or is 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 ‑ I have formed the view that rather than appoint a Receiver, the appropriate relief is, instead, to make an order addressing the conduct of that aspect of YAC's affairs into the future.
In these reasons for decision, I deal with the following matters:
1.The Yindjibarndi people, YAC, subsidiaries of YAC, and the role of YAC in relation to the native title rights of the Yindjibarndi people;
2.The pleadings, the trial and the evidence;
3.Some background to this litigation ‑ a dispute between YAC and those of its members who are also members of the Wirlu‑murra Yindjibarndi Aboriginal Corporation (WMYAC);
4.What these proceedings are not about;
5.Legal principles concerning conduct of directors under the CATSI Act;
6.Overview of the conduct which the plaintiffs contend constitutes oppressive conduct;
7.Whether the plaintiffs have established that YAC engaged in oppressive conduct:
7.1.Alleged denial of membership rights and improper conduct in dealing with membership applications;
7.2.Alleged failure to conduct or manage meetings properly and alleged improper administration of YAC finances;
7.3.Alleged continual non-compliance with the CATSI Act and Rule Book; and
8.The overall relief which should be granted in respect of the conduct of YAC within s 166‑1(1) which the plaintiffs have established.

The Yindjibarndi people, YAC, subsidiaries of YAC and the role of YAC in relation to the native title rights of the Yindjibarndi people

(a) The Yindjibarndi people and their native title rights and interests over land in the Pilbara region of Western Australia

The Yindjibarndi people come from the Pilbara region in Western Australia. In 2003, the Federal Court[12] recognised that the Yindjibarndi people had certain native title rights in an area referred to as the Yindjibarndi Native Title Area (which was defined in the first schedule to the Court's determination) (Daniel Determination Area).[13] Those native title rights and interests were non‑exclusive native title rights and interests. In other words, those rights did not confer possession, occupation, use and enjoyment of the land and waters in the Daniel Determination Area to the exclusion of others.
[12] Daniel v The State of Western Australia [2005] FCA 536. The Daniel decision was the subject of an appeal to the full Federal Court. The Court affirmed the decision of the trial judge, save to vary it in certain respects, which are not presently relevant: see Moses v The State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148.
[13] Exhibit 1.3.
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'.[14]
[14] Exhibit 1.3.
Under the Native Title Act 1993 (Cth) (NT Act),[15] common law holders will ordinarily nominate a prescribed body corporate to hold their native title rights and interests on trust for them. There was no dispute[16] that for the purposes of the NT Act, YAC is a 'prescribed body corporate'[17] (PBC) and a 'registered native title body corporate';[18] 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.[19]
[15] Native Title Act 1993 (Cth) s 56(2).
[16] PSIFC [4] ‑ [6]; DSIFC [7].
[17] See Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).
[18] Native Title Act 1993 (Cth) s 253.
[19] Exhibit 1.3.
As a PBC which holds native title rights and interest on trust, YAC has prescribed functions, including the function to manage the native title rights and interests of the common law holders; in doing so, it is required to consult with the common law holders.[20] In its capacity as a trustee which holds the rights and interests of the common law holders, YAC has the legal capacity to negotiate certain future governmental acts, such as the conferral of mining rights and the compulsory acquisition of native title rights and interests,[21] and to make indigenous land use agreements (ILUAs).[22] Payments of compensation, such as those which may be made pursuant to an ILUA, will be held on trust for the common law holders.[23]
[20] Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) reg 6.
[21] Native Title Act 1993 (Cth) s 25(1), s 29(2), s 30A, s 31, s 33.
[22] Native Title Act 1993 (Cth) s 24BA, s 24BC, s 24BD(1).
[23] YAC Rule Book r 13.1: Exhibit 1.292.
The common law holders are all of the 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 therefore obliged to act in the interests of all of those common law holders, and not just in the interests of the members of YAC.

(b) The Yindjibarndi #1 claim

In 2003, the Yindjibarndi people also made a claim of native title in respect of an area of land immediately to the south of the Daniel Determination Area.[24] In these reasons, I refer to that claim, as the parties did, as the Yindjibarndi #1 claim.
[24] Exhibit 1.2.
The Yindjibarndi #1 claim is brought on behalf of the Yindjibarndi people who are said to be the descendants of 31 identified apical ancestors.[25]
[25] Exhibit 1.2.
The NT Act requires that proceedings for the determination of a claim of native title be brought by persons authorised as a single applicant.[26] The Applicant in the Yindjibarndi #1 claim was a group of people (which included the plaintiffs) who were authorised by the Yindjibarndi people to bring that claim (the original Applicant). The claim brought by the original Applicant was for native title rights and interests in the land which were exercised by the Yindjibarndi people in the Yindjibarndi #1 claim area, to the exclusion of others.
[26] Native Title Act 1993 (Cth) s 61.
In 2008, YAC was appointed the agent for the original Applicant in the Yindjibarndi #1 claim.[27]
[27] Exhibit 1.4.
By the time of the trial in the present action, the trial of the Yindjibarndi #1 claim had concluded, and the trial judge had reserved his decision on that claim.[28]

(c) YAC - its Rule Book, members and people

[28] The decision was delivered on 20 July 2017, and orders made on 13 November 2017 effecting the decision: see Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v The State of Western Australia [2017] FCA 803; Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v The State of Western Australia [No 2] [2017] FCA 1299.

YAC is governed by its constitution (referred to as its Rule Book).[29] The current iteration of the Rule Book was registered on 15 March 2016. Under the CATSI Act, the Rule Book operates as a contract between the corporation and each member.[30]
[29] Exhibit 1.292.
[30] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s60-10.
The objectives of the YAC include to:[31]
(a)provide direct relief from poverty, sickness, suffering, misfortune, destitution or helplessness among Aboriginal people, especially the common law holders;
(b)be and to perform the functions of a prescribed body corporate for the purpose of being the subject of a native title determination under [the NT Act];
(c)be and to perform the functions of a registered native title body corporate for the purpose of being the subject of a determination under [the NT Act];
(d)protect, preserve and advance the traditions, laws, languages, culture and customs of Aboriginal people, especially the common law holders; and
(e)hold title to any vested land.
[31] YAC Rule Book r 2.1: Exhibit 1.292.
Without limiting the generality of those objectives, the YAC may also:[32]
(a)advance and promote the wellbeing of Aboriginal people, especially the common law holders;
(b)provide environmental, social, economic and cultural benefits to Aboriginal people, especially the common law holders;
(c)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; and
(d)support and provide education, training and employment for Aboriginal people, especially the common law holders.
[32] YAC Rule Book r 2.2: Exhibit 1.292.
Yindjibarndi people who meet criteria specified in the Rule Book may apply for membership of YAC. The board of YAC determines applications for membership. (The rules concerning membership of YAC are discussed in greater detail later at [219] ‑ [229] in these reasons.)
YAC is governed by a board of 12 directors. At the date of the trial its Chairperson was Ms Lyn Cheedy. The day to day management of YAC is undertaken by a Chief Executive Officer (CEO), Mr Michael Woodley. Mr Woodley was the CEO of YAC at all relevant times, other than for a short period in 2014 when he stepped down from that role. From July 2013, Mr George Irving was employed as an in‑house counsel for YAC. Mr Philip Davies was also employed by YAC, as its contact officer with the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (ORIC).

(d) YAC's subsidiaries and related entities

It was not in dispute that YAC has a number of subsidiaries.[33] It is the sole shareholder of Yindjibarndi Capital Pty Ltd (Yindjibarndi Capital) and of Yindjibarndi Wealth Pty Ltd (Yindjibarndi Wealth).
[33] Pursuant to Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 689-1.
It was also not in dispute that in June 2013, YAC entered into an ILUA with Rio Tinto Iron Ore (Rio Tinto) (the Participation Agreement). Part 6 of the Participation Agreement established a Benefit Management Structure that led to the establishment of Yindjibarndi Community and Commercial Ltd (YCCL) to act as the Trustee for the Yindjibarndi People Community Trust (YPCT) and the Yindjibarndi Commercial Trust (YCT). YAC is the sole shareholder of YCCL.
Currently, the primary source of income for the benefit of Yindjibarndi people is payments made pursuant to the Participation Agreement.[34] Payments under the Participation Agreement are made to YCT and YPCT. The Agreement contemplates that payments may be made by YCT and YPCT to YAC, such as for administrative support services provided by YAC. (The terms of the Participation Agreement are discussed later in these reasons.) However, as I note later in these reasons at [891] ‑ [892] there was some evidence that YAC had received income of a significant quantum from the Trusts during the 2014 and 2015 financial years.
[34] Exhibit 1.94.
In addition, in February 2013, YAC established an incorporated joint venture with Anthony Martin and Right Foot Forward Pty Ltd, called Yurra Pty Ltd (Yurra), pursuant to which YAC held 50% of its shares, and Mr Martin and Right Foot Forward Pty Ltd each held 25% of its shares. In or about March 2014, YAC's shareholding in Yurra was transferred to Yindjibarndi Wealth. YAC's CEO, Mr Michael Woodley, is one of two directors of Yurra.
It was also not in dispute that in about November 2008, YAC entered into a management agreement with Juluwarlu Group Aboriginal Corporation (Juluwarlu). Under that agreement, Juluwarlu managed YAC's native title, heritage, environmental, cultural, administrative, banking and professional needs. That management agreement was terminated in about August 2013.

(e) Other related investigations and proceedings in respect of which YAC has been involved

Some of the matters relied upon by the plaintiffs as constituting conduct warranting the grant of relief under s 166-1 of the CATSI Act, or which relate to such conduct, have previously been the subject of proceedings in this Court, or have been the subject of processes adopted by the Registrar of Aboriginal and Torres Strait Islander (ATSI) Corporations (Registrar) to enforce the requirements of the CATSI Act.

Related proceedings before this Court

The following related proceedings have been litigated in this Court. These are discussed further below, in the context of several of the claims of oppressive conduct made by the plaintiffs, but it is convenient to mention them briefly at this point.
In November 2011, the plaintiffs, together with Ms Mavis Pat, commenced proceedings seeking an interlocutory injunction to restrain YAC from proceeding with a proposed annual general meeting (AGM) on 30 November 2011, on the basis that notice of that meeting had not been properly given to members of YAC in accordance with the requirements of the CATSI Act.[35] In addition, the plaintiffs in that action sought an injunction to restrain YAC from putting a proposed resolution to the AGM to amend YAC's Rule Book which was intended to change the criteria for membership of YAC. They contended that those amendments were contrary to the CATSI Act, contrary to the interests of members and that they were oppressive, so as to attract the statutory remedies under s 166-5 of the Act.[36]
[35] Exhibit 1.64.
[36] Pat v Yindjibarndi Aboriginal Corporation [2011] WASC 354 [22] ‑ [23].
Master Sanderson granted an interlocutory injunction restraining YAC from proceeding with the AGM proposed for Wednesday 30 November 2011 until notice had been given to all members of YAC, and from considering or permitting to be passed, at any meeting, any of the resolutions set out in the notice for that AGM in relation to the proposed amendment of those rules in the YAC Rule Book which concerned the criteria for membership of YAC.[37]
[37] Exhibit 1.66; Pat v Yindjibarndi Aboriginal Corporation [2011] WASC 354.
In Adams v Yindjibarndi Aboriginal Corporation RNTBC,[38] two members of YAC ‑ Ms Charmaine Adams and Ms Jill Tucker ‑ sought declarations as to the validity of their convening of a general meeting of YAC on 10 November 2014. Justice Kenneth Martin made a declaration that the general meeting had been validly called and that each of the motions set out in the notice of the general meeting was able to be proposed at that meeting.[39]
[38] Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467.
[39] Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467 [116] ‑ [118].
Finally, in Sandy [No 2],[40] Mr John Sandy brought proceedings challenging the validity of a meeting of the directors of YAC which was held on 16 December 2015. Mr Sandy contended that the meeting had not been validly convened because it had not been called by a director; because reasonable notice had not been given to one of the directors (Ms Tucker); and because the directors had accepted membership applications from 46 new members for an improper purpose, namely to influence the outcome of motions to be considered at a general meeting of YAC on 1 February 2016. In addition, Mr Sandy contended that the terms of appointment of all of YAC's directors had expired on 10 September 2015, and that although extended (by the CATSI Act) until the next general meeting of YAC on 30 November 2015, motions for the appointment of directors were put, but not passed, at that meeting, with the result that on 16 December 2015, YAC had no validly appointed directors.
[40] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75.
Justice Le Miere held that the purported meeting of directors on 16 December 2015, and the resolutions passed at that meeting, were invalid, because the person who called the meeting, and the persons who attended, had ceased to be directors on 30 November 2015. His Honour also held that reasonable notice of that directors' meeting had not been given to Ms Tucker. His Honour further held that the directors had accepted the 46 membership applications for an improper purpose.[41]

Related procedures pursued by the Registrar of ATSI corporations

[41] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 [31], [44], [63].

The CATSI Act creates both the statutory office of the Registrar, and ORIC.[42]
[42] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 1-30 and s 653-1.
The Registrar is given a number of functions to administer the CATSI Act.[43] In addition, the Registrar has a wide variety of powers to enforce compliance with the requirements of the CATSI Act. By way of example, the Registrar may issue a notice requiring the directors of a corporation to take action to comply with the CATSI Act or the corporation's constitution, or to remedy an irregularity (compliance notice). A compliance notice may be issued if the Registrar suspects on reasonable grounds that an ATSI corporation has failed to comply with a provision of the CATSI Act or its constitution, or if there has been an irregularity in the affairs of the corporation.[44]
[43] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 658-1.
[44] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 439-20(1).
The Registrar also has power to appoint a special administrator if the Registrar suspects on reasonable grounds that circumstances exist that constitute grounds for the appointment of a special administrator.[45] The grounds for the appointment of a special administrator include if the affairs of the corporation are being conducted in a way that is oppressive or unfairly prejudicial to, or discriminatory against a member or members; or contrary to the interests of the members as a whole; or if disputes between the corporation's members and officers are interfering with the proper conduct of the corporation's affairs; or if the appointment is required in the interests of the members, or in the public interest.[46]
[45] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 439-20(3) and s 487-1.
[46] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 487-5(1).
The Registrar has issued two compliance notices of relevance to the present proceedings. The first, issued on 8 March 2011, required that YAC's directors take action to, amongst other things, deal with outstanding applications for membership and to put in place a system for the directors' approval of any payments to be made by YAC (first compliance notice).[47] In October 2011, the Registrar advised that he was satisfied that YAC had met the requirements of the first compliance notice.[48]
[47] Exhibit 1.32.
[48] Exhibit 1.58.
Another compliance notice was issued by the Registrar on 16 May 2016, following the decision of Le Miere J in Sandy [No 2] (second compliance notice).[49]That notice required YAC to, amongst other things, prepare draft policies and procedures requiring that YAC hold its AGM before 30 November each year, and that all membership applications be dealt with at a directors' meeting within a reasonable time after their receipt, and that by 30 June 2016, the directors consider any membership applications made prior to 1 June 2016.
[49] Exhibit 1.306.
In addition, I should also mention that following the decision of Le Miere J in Sandy [No 2], the Registrar exercised his powers under the CATSI Act to change YAC's Rule Book, by replacing the requirement that resolutions passed at a general meeting be passed by a special majority with a requirement for a simple majority only. In addition, the Registrar called a general meeting of YAC's members to appoint directors of YAC.[50]
[50] Exhibit 1.294.

The pleadings, the evidence and findings as to credibility of the witnesses

(a) The history of the action

This action has a long history, having commenced in 2011. In August 2013, the parties reached agreement as to a basis on which they would settle this action. A copy of the Deed of Settlement and Release (Settlement Deed) entered into by the parties at that stage was in evidence.[51] The Settlement Deed provided that, upon certain steps being taken, the proceeding would be dismissed with no determination on the merits. Regrettably, 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. These are discussed below because they form part of the factual foundation for some of the claims of oppressive conduct by YAC.
[51] Exhibit 1.97.
The action did not proceed by way of formal pleadings. Instead, the parties filed Statements of Issues, Facts and Contentions. That had the advantage of identifying, perhaps more clearly than formal pleadings might have, the issues the parties identified as requiring resolution, and the legal arguments the parties saw as underpinning their respective positions. On the other hand, the precise extent of the parties' disagreement as to the facts was less clear. In some instances, it appeared that there was little factual dispute, and on other occasions the facts alleged by each of the parties appeared to be broadly similar, but there were no admissions and few statements of express agreement as to the facts. Consequently, it has been necessary to make factual findings about each of the alleged incidents of oppressive conduct alleged by the plaintiffs.

(b) The trial and the evidence

The trial took place over 10 days in December 2016 and February 2017. A very large volume of documentary evidence was tendered in a trial bundle. Many other exhibits were also tendered in evidence.
The plaintiffs tendered a total of 25 affidavits, which were sworn or affirmed by the following 18 witnesses:
•       Ms Sylvia Allan;[52]
[52] Exhibits 6, 7, 8, 9, 10 and 13.
•       Ms Aileen Sandy;[53]
[53] Exhibit 30.
•       Mr Vincent Adams;[54]
[54] Exhibits 2 and 3.
•       Ms Michelle Adams;[55]
[55] Exhibit 4.
•       Ms May Adams;[56]
[56] Exhibit 5.
•       Mr Rodney Adams;[57]
[57] Exhibit 14.
•       Mr John Sandy;[58]
[58] Exhibit 31.
•       Ms Allery Sandy;[59]
[59] Exhibits 18 and 19.
•       Mr Ken Sandy;[60]
•       Ms Sally Anne Walker;[61]
•       Ms Karen Toby;[62]
•       Mr George Ranger;[63]
•       Mr Michael Gallagher;[64]
•       Mr Payden Sandy;[65]
•       Ms Symaya Moody;[66]
•       Mr Wesley Munda;[67]
•       Mr Ian Charles Francis;[68] and
•       Ms Alexandra Zhu.[69]
[60] Exhibit 27.
[61] Exhibit 23.
[62] Exhibit 20.
[63] Exhibit 28.
[64] Exhibit 29.
[65] Exhibit 24.
[66] Exhibit 21.
[67] Exhibit 22.
[68] Exhibit 25.
[69] Exhibit 26.
The defendants tendered a total of eight affidavits, which were sworn or affirmed by the following six witnesses:
•       Mr Angus Mack;[70]
•       Ms Lyn Cheedy;[71]
•       Mr Michael Woodley;[72]
•       Mr George Irving;[73]
•       Mr Charlie Cheedy;[74] and
•       Mr Graeme Sheard.[75]
[70] Exhibit 33.
[71] Exhibit 39.
[72] Exhibit 41.
[73] Exhibits 51, 52 and 53.
[74] Exhibit 56.
[75] Exhibit 49.
Each of the parties called expert evidence from an accountant, in relation to the alleged oppressive conduct arising from YAC's alleged failure to provide consolidated accounts for it and various entities said to be related to it for accounting purposes. The plaintiffs relied on the evidence of Ms Susan Oldmeadow‑Hall[76] and the defendants relied on the evidence of Ms Nikki Shen.[77] In addition, the expert witnesses met and conferred, and, as a result of that conferral, provided a joint memorandum outlining the areas of agreement and disagreement.[78] The experts gave evidence in a concurrent session which was of assistance in further highlighting the reasons why they disagreed in relation to the extent of the consolidation of YAC's accounts which was required by relevant Accounting Standards.

(c) The credibility and reliability of the non-expert witnesses

[76] Exhibits 43, 44 and 46.

[77] Exhibit 47.

[78] Exhibit 45.

Only the plaintiffs, Mr Vincent Adams and Mr Rodney Adams were cross-examined by counsel for the defendants. The remainder of the plaintiffs' affidavit evidence was unchallenged and I accept it.
Counsel for the plaintiffs cross-examined all of the defendants' witnesses, apart from Mr Cheedy, whose evidence (limited as it was) I accept.
All of the lay witnesses, apart from Mr Irving and Mr Sheard, are Yindjibarndi people. In assessing their credibility, I have taken into account the fact that cultural differences may affect the way in which Aboriginal witnesses give evidence, or their demeanour as witnesses. It is well recognised that a number of factors may impact on the evidence given by Aboriginal witnesses, including some characteristics of communication in Aboriginal society such as the avoidance of direct eye contact as a sign of respect, and a tendency to gratuitously concur with questions, as well as language difficulties.[79] To the extent that these factors may have impacted on the evidence of particular witnesses, I have commented on them below.
[79] See, for example, S Fryer‑Smith, Aboriginal Benchbook for Western Australian Courts (2nd ed, 2008), 5:6 ‑ 5:10.
In so far as the witnesses were concerned, I make the following findings as to their reliability and credibility.
Ms Sylvia Allan is an elderly woman who has spent her entire life in Yindjibarndi country.[80] Ms Allan is a softly spoken woman, who was hard of hearing,[81] and obviously had difficulties, on occasion, in comprehending spoken English. (Ms Michelle Adams sat in the witness box with Ms Allan while she gave her evidence to provide reassurance and to act as an informal interpreter, when required. There was no objection by defence counsel to that course[82] and Ms Adams took the interpreter's oath for that purpose.)
[80] Exhibit 10.
[81] See, for example, ts 602.
[82] ts 552 ‑ 553.
In cross‑examination, it soon became apparent that Ms Allan remembered little of the matters referred to in her affidavits, particularly in so far as they concerned meetings of YAC, or other meetings in which she had participated.[83] Much of her oral evidence was of little or no assistance as a consequence of those difficulties. Ms Allan's memory was stronger when she was asked to recall people or relationships within the Yindjibarndi community, and her role in resolving membership disputes (as a member of what was referred to as the Elders' Sub‑committee, which is discussed below at [393] and following). I have taken that part of her evidence into account, and refer to it below.
[83] See, for example, ts 598 ‑ 599, 617.
The evidence of the elderly woman, who had a very limited recollection when giving her evidence in the witness box, stood in marked contrast to the detailed evidence set out in Ms Allan's affidavits. That raises the question of how the evidence set out in her affidavits should be approached. Counsel for the defendants submitted that 'to the extent that the affidavit evidence of the Plaintiffs is contentious it cannot be given any weight. This is because of the difficulties that the Plaintiffs had in recalling even basic facts about the proceeding'.[84]
[84] Defendants' Closing Submissions [17].
In the end I approached Ms Allan's affidavit evidence with caution, but I have taken it into account. Subject to the following qualifications, I accept that Ms Allan's affidavit evidence is truthful and reliable evidence. In reaching that conclusion, I have taken into account, first, the fact that Ms Allan's affidavits were prepared some time ago, and no doubt with more time and less pressure than a witness experiences in a court room. Secondly, much of Ms Allan's affidavit evidence (for example, in relation to various meetings which she attended, or applications she made in the Yindjibarndi #1 claim) was consistent with the documentary evidence in relation to those events or actions, or was corroborated by other witnesses. Thirdly, the balance of Ms Allan's evidence concerned her own motivation for participating in WMYAC, her concerns about YAC's management and its approach to membership, and her evidence about whether other persons were Yindjibarndi people. I did not understand the defendants to challenge the genuineness of that evidence. I have taken this aspect of Ms Allan's evidence into account as an example of the concerns, and different views, held by the Yindjibarndi people. However, I have not relied on the concerns or opinions of Ms Allan, or of any of the other witnesses for the plaintiffs, for the purpose of determining whether, in fact, YAC's conduct was oppressive on any count.
I turn next to the evidence of Ms Aileen Sandy. Ms Sandy is a Yindjibarndi woman of advancing years, who was born and grew up in Roebourne, and speaks the Yindjibarndi language 'all the time'.[85] (As she did with Ms Allan, Ms Michelle Adams sat with Ms Sandy in the witness box to provide reassurance and to act as an informal interpreter, when required.)
[85] Exhibit 30 [1] ‑ [5].
Most of Ms Sandy's oral evidence was of no assistance, for two reasons. First, she was unable to remember much about the events about which she was cross-examined. On several occasions, she indicated that she could not remember 'because it has been too long'.[86] Secondly, on numerous other occasions, it was apparent that Ms Sandy clearly did not wish to answer the questions put to her. At times she responded to questions with silence, while on other occasions she quite simply 'closed down' and replied in terms such as 'I can't give you answer on that. Thank you very much'.[87] Her demeanour on those occasions was different from the occasions on which she told the Court that she could not remember the events in question. That reluctance appeared particularly pronounced when she was asked about the dispute between YAC and WMYAC. Perhaps Ms Sandy's response was attributable to cultural differences, but she left me with the clear impression that she simply did not wish to give evidence in respect of certain matters. Ms Sandy conveyed the impression that she was weary of litigation, and deeply sad and disappointed about the division in the Yindjibarndi community.[88]
[86] For example, ts 811, 833.
[87] See, eg, ts 818, 821, 822, 827, 829.
[88] ts 818 - 819.
As for Ms Sandy's affidavit evidence, it stands in a different position to her oral evidence. Much of it sets out her reasons for participating in WMYAC and her concerns about YAC and its management. I accept that evidence on the basis that it reflects Ms Sandy's genuinely held views about those matters. However, I have not relied on the concerns or opinions of Ms Sandy for the purpose of determining whether, in fact, YAC's conduct was oppressive on any count.
Turning to the evidence of Mr Rodney Adams and Mr Vincent Adams, I was satisfied that their ability to give their evidence was not hampered by cultural differences or language difficulties. Subject to one reservation in relation to Mr Rodney Adams' evidence (which I discuss at [212]), I accept that the evidence given by each of them was credible and reliable.
As for the defendants' evidence, Mr Angus Mack gave evidence in support of the defendants' case.[89] I carefully observed him giving his evidence. Counsel for YAC submitted that it was extremely difficult for Mr Mack to comprehend lengthy and detailed questions, having regard to his limited education, and to cultural differences.[90] Sometimes the questions put to him were lengthy and involved considerable detail, and there were a number of occasions on which Mr Mack clearly did not understand the question.[91] However, on most occasions, Mr Mack requested clarification or that the question be put to him differently. On other occasions where he appeared to be experiencing difficulties in comprehension, I intervened to confirm that he understood the question put, or to ask counsel to rephrase the question. In addition, Mr Mack also asked counsel to proceed more slowly if his questions were put too quickly.[92] In the end, I was satisfied that Mr Mack's evidence adequately, and accurately, conveyed his knowledge of, and perspective on, the events and issues in dispute in this trial and was not hampered by cultural differences.[93]
[89] Exhibit 33.
[90] ts 877.
[91] For example, ts 874, 876.
[92] ts 877.
[93] See, for example, S Fryer‑Smith, Aboriginal Bench Book for Western Australian Courts (2nd ed, 2008), 5:6 ‑ 5:10.
At times there were long pauses in Mr Mack's evidence while he thought about the question put to him. On some occasions ‑ when dealing with questions concerning the approach taken by the YAC directors to membership applications by WMYAC members ‑ it appeared that Mr Mack was hesitant in giving his evidence because he was concerned that his answer might result in an acknowledgement of conduct by YAC which might be open to criticism.[94] I approached his evidence with caution for that reason.
[94] ts 914 - 915.
Ms Lyn Cheedy answered questions directly and frankly, and clarified questions with counsel when she was uncertain what was being asked. There was nothing to suggest that Ms Cheedy experienced any comprehension or language difficulties in giving her evidence, and I did not observe anything in her demeanour to suggest that her evidence was hampered by cultural differences. Ms Cheedy appeared to find cross‑examination stressful and distressing on occasion.[95] That may have been, in part, a response to the stress of extensive cross‑examination. In addition, Ms Cheedy had recently experienced a family bereavement.[96] However, it was also apparent that, on occasion, Ms Cheedy sought to answer questions so as to cast the best light on the directors' conduct. That was especially so in relation to her evidence as to the basis for the directors' decisions as to membership on 29 June 2016, and consequently I found some aspects of her evidence, in relation to that issue, unconvincing. I approached the balance of her evidence with caution, but ultimately I have accepted it.
[95] ts 1104.
[96] ts 1125.
Mr Woodley is the CEO of YAC, and has been for some years. He gave his evidence directly and confidently. It was clear that he has passionate and strongly held views about the importance of preserving the culture and identity, and protecting the financial interests, of the Yindjibarndi community, and that he sees those interests as best served by YAC. It was also apparent that it is Mr Woodley who drives many of the management decisions and policies adopted by the YAC board.
I approached Mr Woodley's evidence with some caution because of the risk that his strongly held views would skew his recollection of events. By way of example, when asked about a suggestion made by Korda Mentha concerning the delegation of authority by the board of YAC, Mr Woodley's ambiguous answer (which may have been deliberately so) was that the board 'took it on, but [the board] had some other plans in terms of how [the board] thought what would be in the best interests for the corporation'[97] and that 'at the end of the day, the Board had [its] own ideas in terms of what we was going to do in terms of [Korda Mentha's suggestion].'[98] In addition, Mr Woodley gave very vague and ambiguous evidence when asked about financial matters related to Juluwarlu, and he subsequently suggested that he kept his distance from Juluwarlu matters because his wife, Ms Lorraine Coppin, is the chief executive officer of Juluwarlu.[99] I have not relied on any of Mr Woodley's evidence to the extent that it concerned Juluwarlu and its financial connection with YAC.
[97] ts 1210.
[98] ts 1214.
[99] ts 1233 - 1234.
In so far as Mr Woodley's evidence pertained to factual matters, I have relied upon his evidence to the extent that it is consistent with the documentary evidence. However, in so far as Mr Woodley's evidence concerned the decisions of the board of YAC, I have relied primarily on the documentary evidence, and on the evidence given by Ms Cheedy and Mr Mack, subject to my expressed reservations in relation to their evidence. .
Mr Irving is the solicitor and in‑house counsel for YAC. I accept his evidence as credible and reliable.
Similarly, I accept the evidence of Mr Sheard as credible and reliable.

(d) The defendants' failure to call the directors of YAC apart from Mr Mack and Ms Cheedy

Counsel for the plaintiffs made a submission, in reliance on Jones v Dunkel,[100] arising from the decision by the defendants not to call any directors of YAC apart from Mr Mack and Ms Cheedy.[101] He submitted that
the failure to call evidence from 10 of the 12 members of the YAC Board, including a director of not only YAC but all its subsidiaries (except Yurra Pty Ltd), should enable the Court in the evaluation of evidence to infer that the omitted evidence would have not have assisted the defendants' case on either of the financial issues or the membership issues. Further, it should enable the Court to more confidently or readily draw inferences of fact adverse to the defendants which might otherwise be open.[102]
[100] Jones v Dunkel (1959) 101 CLR 298.
[101] Plaintiffs' Closing Submissions [33].
[102] Plaintiffs' Closing Submissions [33].
With respect, that submission was not an entirely fair reflection of the defendants' position. Late in the course of the trial, counsel for the defendants advised the Court that the defendants had decided not to call Mr Stanley Warrie, the second defendant. Counsel advised that Mr Warrie was an elderly man who, by the time he was due to give evidence, after having waited at the Court for several days to do so, was not feeling sufficiently well to give evidence.[103]
[103] ts 1404.
Counsel for the defendants also advised the Court that the defendants decided not to call Ms Pansy Sambo, who is a director of YAC and all of the corporate entities related to YAC, except Yurra Pty Ltd, because she had had a bereavement in her family in the course of the trial.
Counsel for the defendants submitted that an adverse inference should not be drawn from the defendants' failure to call other directors of YAC. He submitted that it would have been both 'unrealistic and disproportionate'[104] for the defendants to obtain affidavits from each of the persons who had been directors of YAC between 2010 and 2016. He also submitted that:[105]
In view of the lengthy cross-examination of the Defendants' witnesses, there would have been insufficient time to call any further witnesses than those who were called. The case could not have finished within a reasonable time.
[104] Defendants' Reply Submissions [11].
[105] Defendants' Reply Submissions [12].
Notwithstanding these practical difficulties (which are not without some force) in my view, it remains open to the Court to infer, from the defendants' failure to call other directors, that none of the other directors would have been of more assistance to the defendants' case than the evidence of Mr Mack and Ms Cheedy. However, that inference is of limited assistance to the plaintiffs in the circumstances of this case, particularly the following two circumstances. First, the failure to call individual directors would have been particularly significant had the defence under s 166-1(2) of the CATSI Act been maintained. As the defendants abandoned reliance on that 'defence', the forensic significance of the absence of the other directors was much reduced. Secondly, in many respects the defendants' case involved little dispute about the facts alleged by the plaintiffs, but rather centred on whether, in all of the circumstances, the relief sought by the plaintiffs should be granted. In that context, the evidence of other directors was also of lesser forensic significance, and the impact of any Jones v Dunkel inference far less important than it might have been in a case involving a dispute about a critical fact.
I have relied on the evidence of Mr Mack and Ms Cheedy as evidence of the conduct and views of the directors as a whole, and those of YAC itself. I have also relied on Mr Woodley's evidence as to his conduct as evidence of the conduct of YAC, given his integral role in the management of YAC and his influence on its decisions.[106]
[106] The knowledge and state of mind of a company's officers can be ascribed to the company where those officers have control of the company's acts, to the extent that they act as the company's directing mind and will: Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170; Hamilton v Whitehead (1988) 166 CLR 121, 127 (Mason CJ, Wilson and Toohey JJ); Bell Group (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1, 678 - 679, [6142] - [6143] (Owen J).
Counsel for the plaintiffs also submitted that the decision by the defendants not to call Mr Philip Davies to give evidence was also of significance. Mr Davies was one of the management staff within YAC, and the officer designated as the contact person for enquiries relating to ORIC. I accept that I can infer that Mr Davies' evidence would not have assisted the defendants, any more than the evidence given by the other witnesses involved in the management of YAC, notably Mr Woodley. However, in view of the documentary evidence relating to YAC's responses to the Registrar's intervention in its affairs (which is discussed later in these reasons), and the nature of the case advanced by YAC, the significance of the failure to call Mr Davies was also considerably diminished.

Some background to this litigation ‑ a dispute between YAC and those of its members who are also members of the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)

At the heart of this action is a dispute between YAC and those of its members who are also members of the ATSI corporation called WMYAC.
WMYAC was registered under the CATSI Act on 23 November 2010.[107] It was established by a number of YAC members, including the plaintiffs. Ms Sylvia Allan is a director of WMYAC[108] and Ms Aileen Sandy was a director of WMYAC until shortly before the trial.[109]
[107] Exhibit 1.17.
[108] Exhibit 6 [5] ‑ [6].
[109] ts 815.
WMYAC's objectives, as set out in its Rule Book,[110] are expressed in identical terms to YAC's objectives.[111] 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.[112]
[110] Exhibit 1.297.
[111] WMYAC Rule Book r 2: Exhibit 1.297.
[112] WMYAC Rule Book r 3.1: Exhibit 1.297.
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. It is not necessary to resolve the origins of that dispute, or even to make findings about all of the issues which may be in dispute. It was, however, apparent that some of the issues which led to the dispute included concerns about the management of YAC, including the management of its financial affairs and the role and conduct of its CEO, Mr Michael Woodley, and, most significantly, a dispute about whether Yindjibarndi people (through YAC) should enter into a land access agreement with Fortescue Metals Group (FMG) for the payment of compensation for its mining activities on land the subject of the Yindjibarndi #1 claim.
I deal with the nature of these aspects of the dispute between YAC and its members in a little more detail later in these reasons because they form part of the context for some of the allegations of oppressive conduct made by the plaintiffs.

What these proceedings are not about

This is an appropriate juncture to make some brief observations about what this case was not about, and thus what this judgment does, and does not, determine. This case was not about whether YAC, or the Yindjibarndi people represented by some other indigenous corporation, should enter into an agreement with FMG, or the terms of that agreement. Nor was this case one in which a determination was sought that particular persons are, or are not, eligible for membership of YAC, or of any other indigenous corporation which purports to exist to act in the interests of the Yindjibarndi people. Nor did this case concern who should be the directors and chief executive officer of YAC. These are all questions with which the Yindjibarndi people must continue to grapple themselves.
All this case is about is whether the particular conduct of YAC (which has been specifically identified and relied upon by the plaintiffs), said to have been engaged in by YAC's directors and CEO, constitutes conduct of the kind referred to in s 166‑1 of the CATSI Act, and if so, whether any order should now be made by the Court in relation to that conduct, and in particular, whether the relief sought by the plaintiffs ‑ namely the appointment of a Receiver ‑ should be granted.

Legal principles concerning conduct of directors under the CATSI Act

One of the objectives of the CATSI Act was to align the corporate governance requirements for ATSI corporations with modern standards of corporate regulation and accountability, but in such a way as to reflect the different circumstances of ATSI corporations, and so as to enable some flexibility for ATSI corporations to tailor their arrangements to suit those circumstances.[113] So, for example, fundamental concepts from the Corporations Act 2001 (Cth) ‑ such as the separate legal personality of a corporation upon its registration,[114] and its governance by a board of directors[115] who are accountable to the corporation's members, and required to act in good faith in the best interests of the corporation, and for a proper purpose[116] - are replicated in the CATSI Act.[117] Furthermore, some of the key corporate governance provisions from the Corporations Act 2001 (Cth) are closely replicated in the CATSI Act. They include the provisions concerning the duty of directors to exercise their powers and perform their duties in good faith in the best interests of the corporation, and for a proper purpose,[118] which are found in s 181 of the Corporations Act 2001 (Cth) and reflected in s 265-5 of the CATSI Act.
[113] Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467 [8] - [16] (K Martin J).
[114] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 42-1, s 96-1.
[115] ATSI corporations with more than 2 members must have at least 3 and not more than 12 directors: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 243-1 and 243-5.
[116] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 265-5. That obligation mirrors the good faith and proper purpose obligations in s 181 of the Corporations Act 2001 (Cth): see Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 [51] (Le Miere J).
[117] Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467 [9] (K Martin J).
[118] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 265-5.
The plaintiffs' claims for relief in this case are founded on s 166‑1 and s 166-5 of the CATSI Act, which are in very similar terms to s 232 and s 233 of the Corporations Act 2001 (Cth). To the extent that the CATSI Act provisions in relation to corporate governance reflect those in the Corporations Act 2001 (Cth), the principles developed in relation to the application of the Corporations Act provisions apply also to the CATSI Act provisions.[119]

(a) The duty on a director to exercise their powers in good faith in the best interests of the corporation, and for a proper purpose

[119] Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1397; (2009) 181 FCR 201 [308], [363] ‑ [369]; Adams v Yindjibarndi Aboriginal Corporation RNTBC [2014] WASC 467 [9] ‑ [10].

Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power, but rather must be exercised for the benefit of the company as a whole.[120]
[120] Mills v Mills (1938) 60 CLR 150, 185 (Dixon J); Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11; (1987) 162 CLR 285, 300.
As Dixon J explained in Mills v Mills, if the power would not have been exercised save for some ulterior and illegitimate object, then that[121]
which has been attempted as an ostensible exercise of power will be void, notwithstanding that the directors may incidentally bring about a result which is within the purpose of the power and which they considered desirable.
[121] Mills v Mills (1938) 60 CLR 150, 186 (Dixon J).
The test for determining whether a power has been exercised for a proper purpose is an objective one.[122]
[122] Westpac Banking Corporation v Bell Group Ltd (In Liq) (No 3) (2012) 44 WAR 1, 353 [1988], 362 [2027] (Drummond AJA).
In determining whether a power has been exercised for a proper purpose, the Court must first determine the purpose or purposes for which the power must properly be exercised. That is a question of law. The Court then determines the purpose for which the power was, in fact, exercised, and whether that purpose was within the category of permissible purposes.[123]
[123] Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 [60] (Brereton J).
The power of the directors must be used for the purpose for which it was conferred. That power must not be used under the cloak of such a purpose but in fact for an ulterior purpose, such as benefiting some shareholders at the expense of others, or so that some shareholders can wrest control of the company from others.[124] Similarly, for a director to exercise the power to accept or decline a membership application for the purpose of manipulating the voting power of members, or creating a new majority of members, would be foreign to the purpose of that power.[125]
[124] Ngurli Ltd v McCann [1953] HCA 39; (1953) 90 CLR 425, 439 ‑ 440 (Williams ACJ, Fullagar & Kitto JJ); Mills v Mills (1938) 60 CLR 150, 186 (Dixon J).
[125] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 [55] (Le Miere J).
Clearly, there may be cases where conduct which constitutes a misuse of directors' powers (that is, the exercise of those powers other than in good faith and for a proper purpose) also constitutes oppressive conduct towards members of the corporation.

(b) Section 166-1 of the CATSI Act

Section 166-1 of the CATSI Act provides:
(1)Subject to subsection (2), the Court may make an order under section 166‑5 if:
(a)the conduct of an Aboriginal and Torres Strait Islander corporation's affairs; or
(b)an actual or proposed act or omission by or on behalf of an Aboriginal and Torres Strait Islander corporation; or
(c)a resolution, or a proposed resolution, of members or a class of members of an Aboriginal and Torres Strait Islander corporation;
is either:
(d)contrary to the interests of the members as a whole; or
(e)oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
The Court must not make an order under that section in certain circumstances, including where the act said to constitute oppressive conduct was done by an officer of the corporation in good faith and with the belief that doing the act was necessary to ensure that the corporation complied with a Native Title legislation obligation.[126] Initially, the defendants sought to rely on that provision but in the course of submissions, counsel confirmed that that was no longer pressed.[127]
[126] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 166-1(2).
[127] Defendants' Reply Submissions [8].
The orders which may be made by a Court (which includes the Supreme Court[128]) pursuant to s 166-1 are set out in s 166-5 of the CATSI Act, which provides:
[128] Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) s 694-35.
(1)The Court can make any order under this section that it considers appropriate in relation to the corporation, including the following:
(a)an order that the corporation be wound up;
(b)an order that the corporation's existing constitution be modified or repealed and replaced;
(c)an order regulating the conduct of the corporation's affairs in the future;
(d)an order for the corporation to institute, prosecute, defend or discontinue specified proceedings;
(e)an order appointing a receiver, or a receiver and manager, of any or all of the corporation's property;
(f)an order restraining a person from engaging in specified conduct or from doing a specified act;
(g)an order requiring a person to do a specified act.
The persons who are entitled to apply for an order under s 166-5 are set out in s 166-10 of the CATSI Act. They include a member of the corporation. That is so even if the application relates to an act or omission that is against the member in a capacity other than as a member, or another member in that member's capacity as a member. As I have already observed, there was no dispute that the plaintiffs were entitled to bring the present action.
Chapter 11 of the CATSI Act provides for corporations to be placed under special administration and for a special administrator to be appointed. The exercise of the power to appoint a special administrator will be informed by the objects and aims of the CATSI Act, in contrast to an administration under the Corporations Act 2001 (Cth), which is principally driven by the interests of creditors and a certainty of commercial transactions.[129]
[129] Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] [2016] WASC 75 [66] (Le Miere J).
In addition to the Court's powers under the CATSI Act, the plaintiffs also rely on the Court's power in its equitable jurisdiction to grant injunctions or make declarations about the rights of the parties.[130] The plaintiffs contend that to the extent that the conduct or proposed conduct of YAC constitutes a breach or threatened breach of the Rule Book, an injunction or declaration could be granted by way of relief.[131] There is no doubt that the Court has power to grant relief of that kind in an appropriate case.

(c) What conduct is proscribed by s 166-1?

[130] PSIFC [217].

[131] PSIFC [219].

The ground of being 'contrary to the interests of members as a whole' under s 166-1(1)(d) is independent of the ground of being 'oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members whether in that capacity of any other capacity' under s 166‑1(1)(e).[132]
[132] Turnbull v National Roads and Motorists Association Ltd [2004] NSWSC 577; (2004) 50 ACSR 44 [39] (Campbell J); Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 [25] (Tamberlin J).
It is convenient to consider the meaning of each of those provisions separately.

Acting contrary to the interests of members as a whole under s 166‑1(1)(d)

The meaning of the phrase 'contrary to the interests of the members as a whole' in the corporations legislation has been equated with 'the benefit of the company as a whole'.[133]
[133] New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86, 96. The decision of the New South Wales Court of Appeal was unsuccessfully appealed to the High Court, and without any adverse comment by the members of the Court on that aspect of the judgment of the Court of Appeal.
The interests of the members, considered as a whole, are 'circumscribed by, and found within, the constituting documents of the company'.[134] So, for example, to exclude a member from membership of a corporation, contrary to its articles, may be contrary to the interests of the members of the company as a whole.[135]
[134] New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86, 96.
[135] Australian Securities Commission v Multiple Sclerosis Society of Tasmania (1993) 10 ACSR 489, 516.
The requirement that an exercise of a corporation's powers be for the benefit of the members as a whole is to exclude their exercise for 'ulterior special and particular advantages'. The provision is directed to 'purposes foreign to the association's operations, affairs and organizations'.[136]
[136] Pettit v South Australian Harness Racing Club Inc [2006] SASC 306; (2006) 95 SASR 543 [26] (White J).
Conduct by a board of directors will be contrary to the interests of the members as a whole if no board, acting reasonably, could have engaged in that conduct.[137] It is not necessary to show bad faith on the part of the directors. In other words, conduct may be contrary to the interests of the members as a whole even though the board of directors does not act in bad faith.[138]
[137] Pettit v South Australian Harness Racing Club Inc [2006] SASC 306; (2006) 95 SASR 543 [26] (White J); Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459, 467 - 468 (Mason ACJ, Wilson, Deane & Dawson JJ).
[138] Pettit v South Australian Harness Racing Club Inc [2006] SASC 306; (2006) 95 SASR 543 [26] (White J), citing Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459, 472 (Brennan J).
In considering an allegation that conduct was contrary to the interests of the members as a whole, the courts will not assume the management of corporations, so as to substitute their decisions and assessments (about the merits of particular management decisions) for those of the directors.[139] Consequently, in order to show that a decision was not in the overall interests of the members as a whole, it has to be shown that the decision of the board of directors was such that no board acting reasonably could have made it.[140]

Oppressive conduct under s 166-1(1)(e)

[139] New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86, 102.

[140] Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459, 468 (Mason ACJ, Wilson, Deane & Dawson JJ) and see also, to similar effect, Brennan J at 469 - 470, 473.

As Menhennitt J noted in Re Tivoli Freeholds:[141]
Whether or not a company is being conducted in a manner oppressive to certain shareholders or members depends upon all the circumstances and it is not possible to attempt a universal definition.
[141] Re Tivoli Freeholds Ltd [1972] VR 445, 452 (Menhennitt J); Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 [23] ‑ [24] (Tamberlin J).
The concept of oppression in the corporations legislation has, historically, been understood as importing the notion 'that the oppressed are being constrained to submit to something which is unfair to them as the result of some overbearing act or attitude on the part of the oppressor'.[142] A key issue in the application of the equivalent statutory test under the corporations legislation is that of fairness,[143] and the different elements in the statutory formulation based on oppression, unfair prejudice and unfair discrimination have been described as 'merely different aspects of the essential criterion, namely commercial unfairness'.[144] As Tamberlin J explained in Shelton v National Roads and Motorists Association, '[i]f directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive'.[145] Conduct on the part of a director that is merely unwise, inefficient or careless will not, by itself, amount to oppression.[146]
[142] Re Jermyn St Turkish Baths Ltd [1971] 1 WLR 1042, 1060 (Buckley LJ).
[143] Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 [112] (Hasluck J), referring to Jenkins v Enterprise Gold Mines NL (1992) 6 ACSR 539.
[144] Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343 [87] (Barrett J); Dosike Pty Ltd v Johnson (1996) 16 WAR 241.
[145] Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 [23] (Tamberlin J).
[146] Re Five Minute Car Wash Service Ltd [1966] 1 WLR 745, 752 - 753; Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 [111] (Hasluck J).
Those alleging that the affairs of the company have been conducted in a manner oppressive to them must therefore establish, as one element, conduct which is unfair, or burdensome, harsh and wrongful, to the other members of the company or some of them, and which lacks that degree of probity which they are entitled to expect in the conduct of the company's affairs.[147] A failure to provide information, or a lack of transparency about the financial affairs of a closely held group of companies may also amount to oppressive conduct.[148] So, too, can a persistent failure to allow time for discussion at meetings.[149]
[147] Re Jermyn St Turkish Baths Ltd [1971] 1 WLR 1042, 1059 (Buckley LJ); Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 [110] (Hasluck J); Re Tivoli Freeholds Ltd [1972] VR 445, 452 (Menhennitt J).
[148] ReLedir Enterprises Pty Limited [2013] NSWSC 1332 [194] ‑ [199].
[149] John J Starr (Real Estate) Pty Ltdv Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63, 71 ‑ 72, 82 - 84; Shum Yip Properties Development Ltd v Chatswood Investment and Development Co Pty Ltd [2002] NSWSC 13; (2002) 166 FLR 451 [205].
The Court should not take a narrow approach to cases of oppression[150] and the Court's jurisdiction should not be confined by technical distinctions.[151] The judicial imposition of limitations on the scope of the provisions should be approached with caution.[152]
[150] Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 [23] (Tamberlin J).
[151] Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 [4].
[152] Campbell v Backoffice Investments Pty Ltd[2009] HCA 25; (2009) 238 CLR 304 [72] (French CJ).

In addition, counsel for the defendants submitted that if the Court found that the conduct of the directors in refusing those applications constituted oppression, the preferable course would be to order the directors to reconsider and determine those applications (or any relevant applications) lawfully and in accordance with any relevant findings of the Court and of the Federal Court in the Yindjibarndi #1 claim proceedings. Counsel for the defendants pointed out that the directors of YAC had the clear support of the majority of YAC's members, having been elected by the members by a secret ballot at the meeting called and conducted by the Registrar in March 2016.

Why a Receiver should not be appointed

I am unable to accept the plaintiffs' submissions that the appointment of a receiver is the appropriate relief under s 166-5 in response to my findings that YAC has engaged in conduct of the kind described in s 166-1(1)(d) and (e) of the CATSI Act. In the words of s 29(5) of the Supreme Court Act 1935 (WA), the appointment of a receiver would not be 'just and convenient'. I have reached that view for the following reasons.
First, in so far as the oppressive conduct concerning membership is concerned, a receiver could not, without advice, determine membership applications. In other words, the application of the criterion, in rule 3.1 of the Rule Book, that the applicant be a 'Yindjibarndi person who holds in common the body of traditional law and culture governing the determination area and who identifies as Yindjibarndi' could not be applied by a receiver, other than on advice.
Secondly, the corollary of the first reason to which I have referred, is that the appointment of a receiver will not, in reality, provide a solution to the membership dispute. Although a receiver could obtain advice (for example, from Yindjibarndi Elders), in the event of uncertainty about an applicant's compliance with the criteria for membership, it is difficult to see how the receiver would be in a position to make a final decision. Instead, the most likely course would be that the receiver would need to apply to the Court for directions. It also seems likely that directions from the Court could not be given in the absence of hearing evidence in respect of each and every applicant about whom there was a dispute. Counsel for the plaintiffs frankly acknowledged that that outcome was 'not perfect, but it's the best solution … I accept 100 per cent that it's difficult to fashion the appropriate remedy because the wound is deep, the prejudices are ingrained and the remedies ordinarily available [are not suitable in this case]'.[1300]
[1300] ts 1657.
Thirdly, I am not persuaded that it is appropriate to appoint a receiver to deal with membership applications. The admission of a person to membership of YAC is a decision of fundamental importance to the Yindjibarndi people (as these, and the various related proceedings to which I have referred, amply demonstrate). To entrust decisions about membership to a stranger, from outside the Yindjibarndi community, is in my view liable to perpetuate membership disputes in the long run, rather than to resolve them.
Fourthly, the appointment of a receiver to deal with membership disputes might, perhaps, be pursued as a last resort, but I am not persuaded this case has yet reached that point. YAC itself should be given a further opportunity to resolve membership disputes, but within the confines of declaratory relief given by the Court as to the framework within which those membership decisions must be made. I will discuss that relief further below. The prospect that that approach may have utility is supported by the fact that under the Settlement Deed, YAC's board agreed to admit to membership those persons whose applications were supported by the Elders' Sub‑committee, including those understood to be supporters of WMYAC.
In so far as the oppressive conduct of YAC in relation to its financial management and reporting is concerned, I am also not persuaded that the appointment of a receiver is necessary. In reaching that conclusion, the following three factors appear to me to be of particular significance.
First, in so far as YAC has failed to prepare accounts that comply with subdivision 333-A of the CATSI Regulations and the applicable Accounting Standards, I do not consider that it is necessary to appoint a receiver to rectify this deficiency in the future. In view of the Court's decision, YAC's directors, advised by its accountants, can undertake the preparation of consolidated reports that is required.
Secondly, at the time when much of YAC's oppressive conduct took place, it did not have the assistance of external accountants and auditors. I have no reason to doubt that as YAC has now engaged accountants and auditors, its compliance with its financial and reporting requirements should improve, especially if ORIC continues to monitor that compliance.
Finally, in so far as financial and management practices are concerned, what emerged very clearly from this case is that the directors of YAC who gave evidence did not have a sophisticated understanding of their obligations as directors, and relied heavily on the CEO in ensuring compliance with YAC's obligations. Clearly, those who act as YAC's directors, and as its CEO and its other office holders, need education and training in relation to their role and responsibilities, in relation to financial decision-making and accounting standards, and in relation to matters relevant to the running of a small to medium sized business and sound investment decision making. It is only by ensuring that YAC's directors and officers obtain the education and training that they need, that the standard of the board's decision making, and YAC's compliance with its obligations, will improve. To appoint a receiver, as a substitute decision maker, merely postpones the time at which that more fundamental problem must be tackled. The real solution to the deficiencies in YAC's financial management and administration, which presents an ongoing challenge for YAC, and for ORIC, is to ensure that YAC's directors and officers obtain the education and training that they need to properly meet the responsibilities of their role. Given the amount of compensation which is paid to the Trusts under the Participation Agreement, and the significance of YAC's income from the Trusts for improving the wellbeing of the Yindjibarndi people, it is essential that that issue be addressed as soon as possible. At the same time, the existence of that income stream means that YAC has the means at its disposal to ensure its directors and officers can receive at least some of the training they need.
Before turning to consider what alternative relief should be granted, it is appropriate to deal, briefly, with the submission advanced by senior counsel for the defendants in closing, namely that in the exercise of its discretion, the Court should decline to appoint a receiver to resolve membership disputes, and that instead, the preferable forum for the resolution of membership disputes within ATSI corporations was in native title proceedings in the Federal Court. He pointed to s 84 of the NT Act, which permits a person, who has been excluded from an applicant in native title proceedings, to apply to become a respondent to a proceeding under s 61 of the NT Act for the determination of native title or compensation. He submitted that that was the preferable course for any person whose application for membership of YAC had been refused. Counsel submitted that that was the course which had been taken by members of the Todd family in relation to the Yindjibarndi #1 claim, who claimed that they had been wrongly excluded from the Applicant in the Yindjibarndi #1 claim. He submitted that a similar application had also been made by members of a family group in Yilka v State of Western Australia.[1301] Counsel submitted that such an application enabled the persons claiming to be among the common law holders of native title to adduce expert evidence as to their membership of that group, enabled that evidence to be tested, enabled competing evidence to be adduced and tested, and thus permitted the dispute about membership of the applicant group to be resolved with procedural fairness to all interested parties. He submitted that the same could not be said for decisions as to membership which might be made by a receiver.
[1301] Murray on behalf of Yilka Native Title Claimants v The State of Western Australia (No 5) [2016] FCA 752.
With the greatest of respect to counsel, that submission was advanced very late in these proceedings, and almost as an after-thought, was not fully developed in submissions, and consequently was not presented as an approach with real practical utility in the present circumstances. Perhaps recourse to the Federal Court might be viable if native title proceedings are ongoing, but the hearing of the Yindjibarndi #1 claim had concluded (although judgment was reserved) by the time the trial of the present action commenced. Furthermore, recourse to the Federal Court (like recourse to this Court) is a costly and time-consuming exercise. It is not a desirable means by which to resolve membership disputes in relation to large numbers of applicants, such as in this case.
I turn, next, to consider what alternative relief should be granted.

What alternative relief should be granted?

It is appropriate to begin by summarising the findings I have made as to the plaintiffs' allegations of oppressive conduct by YAC.
In relation to the various allegations of conduct falling within s 166‑1(1) of the CATSI Act, which were said to have arisen in relation to membership of YAC, my findings are as follows:
•In relation to the wrongful exclusion of members from meetings of YAC, in particular the AGM of 15 December 2010, I found that YAC engaged in conduct which was oppressive to those persons in their capacity as members of YAC, contrary to s 166‑1(1)(e) of the CATSI Act. However, I concluded that this conduct, considered on its own, does not warrant the grant of relief.
•In relation to the wrongful purported cancellation of memberships on 15 December 2010 with respect to 26 members of YAC, and continued denial of that membership until at least 21 March 2012, I found that the purported cancellation of the 26 memberships was oppressive conduct for the purpose of s 166‑1(1)(e) of the CATSI Act. However, I concluded that, considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
•In relation to the threatened conduct of YAC to convene a meeting for the purpose of amending rules 3.1 and 3.7 of YAC's Rule Book, in order to limit the persons who can be members of YAC and the grounds upon which membership may be cancelled, I found that YAC's failure to provide proper notice of the meeting to members was oppressive conduct, and that YAC's conduct in proposing the amendments to its Rule Book, at least in so far as those amendments sought to include the loyalty criterion and the disqualification ground in the membership rules for YAC, was also conduct which was oppressive for the purposes of s 166‑1(1) of the CATSI Act. However, I concluded that, considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
•In relation to YAC's wrongful rejection of 52 membership applications on 25 August 2011, I found that that conduct was conduct falling within the meaning of s 166-1(1)(d) of the CATSI Act, in that it was conduct which was contrary to the interests of the members of YAC as a whole. However, I concluded that, considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
•In relation to YAC's alleged wrongful denial of membership to 17 persons approved by the board in 2014 to be eligible for membership, I found that that conduct was not oppressive conduct of the kind described in s 166-1(1) of the CATSI Act, and consequently that no basis for relief has been established.
•In relation to YAC's approval (in November 2015) of membership applications by its purported board, and subsequent registration of the membership applicants as members of YAC, for an improper purpose, I found that that conduct was oppressive conduct for the purposes of s 166-1(1) of the CATSI Act. However, I concluded that, considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
•In relation to YAC's apparent bias in dealing with membership applications in June 2016, I found that the directors purported to apply criteria they had introduced in the Pending Applications Policy, which criteria reflected those the directors had agreed on in the new policies. Of those, the criteria for membership which the directors employed in order to provide them with a basis for refusing membership in these circumstances were the identification criteria, the Birdarra Law criteria, and the loyalty criteria. The same criteria under the new policies, and in addition, the requirement for a commitment under the Code of Conduct, including the requirement for support for YAC's UNDRIP policy, were also designed to achieve the same outcome: a basis for refusing membership to WMYAC members and supporters. I concluded that the directors' decision to refuse membership to WMYAC supporters on the basis of the identification criteria, the Birdarra Law criterion, or the loyalty criterion, constituted the exercise of the directors' power for an improper purpose, and that the directors' conduct fell within s 166-1(1) of the CATSI Act. I found that if the directors were permitted to apply the same policies in the future, further oppressive conduct may occur. I concluded that this conduct, of itself, warranted the grant of some relief under s 166-1(1) of the CATSI Act, but of itself did not warrant relief in the form of appointment of a receiver.
In relation to the various allegations of conduct falling within s 166‑1(1) of the CATSI Act, which were said to have arisen in relation to YAC's conduct of meetings, and the administration of its finances, my findings are as follows:
•In relation to YAC's alleged improper conduct of the AGM on 21 March 2012, and its improper administration of its finances in that it failed to provide members with an opportunity to ask question or make comments about YAC's financial report at the AGM on 21 March 2012, I found that that conduct was not conduct falling within s 166-1(1) of the CATSI Act and consequently no basis for relief has been established.
•In relation to YAC's alleged hindrance of discussion about financial issues at the AGM held on 10 September 2014; and the issues arising out of the Korda Mentha report which was tabled at that AGM, I found that while the findings in the Korda Mentha Report could not be relied upon as evidence of improper administration of YAC's finances, that YAC's hindrance of discussion at the meeting constituted oppressive conduct under s 166-1(1)(e) of the CATSI Act, but that that conduct, of itself, does not warrant the grant of relief;
•In relation to YAC's failure to report to members in compliance with subdivision 333‑A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2007 (Cth) due to its failure to prepare consolidated accounts, I found that YAC had failed to comply with the requirement to prepare consolidated accounts, but that that conduct did not constitute conduct falling within s 166-1(1) of the CATSI Act, and that no relief is warranted in respect of that conduct.
•In relation to YAC's signing off on the 2014 annual financial report when it contained material errors, I found that that conduct did not constitute conduct which fell within s 166-1(1) of the CATSI Act, and that no basis for relief has been established in respect of that conduct;
•In relation to the fact that at the AGMs on 30 November 2015, the CEO's report was not accepted on the basis that it did not relate to the affairs of YAC in the 2014 and 2015 financial years, I doubted whether that conduct could constitute conduct of the kind referred to in s 166-1(1) of the CATSI Act, but in any event, concluded that no relief is warranted in respect of that conduct.
•In relation to YAC's operation without any validly appointed directors, I doubted whether that conduct could constitute conduct of the kind referred to in s 166-1(1) of the CATSI Act but in any event, concluded that no relief is warranted in respect of that conduct.
•In relation to the incurring of legal costs without authority from the board, and YAC's incurring and payment of expenses in the period when YAC had no validly appointed directors, I found that that conduct was not conduct falling within s 166-1(1) of the CATSI Act, and that no basis for relief has been established in respect of that conduct.
•In relation to YAC's alleged continual non-compliance with the CATSI Act and the Rule Book, arising from the first compliance notice and the second compliance notice, and by YAC's failure to adequately maintain the Register of Members, I found that the plaintiffs had not established that any of the conduct in the first or second compliance notice occurred, or that it was conduct by YAC of the kind referred to in s 166-1(1) of the CATSI Act, and in so far as the Register of Members is concerned, I found that YAC's failure to properly maintain the Register was not conduct of the kind referred to in s 166-1(1) and that no basis for relief had been established in respect of that conduct.
Accordingly, while I have found that some of the conduct about which the plaintiffs complained constituted conduct within s 166-1(1) of the CATSI Act, I am not persuaded that any of that conduct, with one exception, individually warrants the grant of relief. That exception arose from YAC's refusal of membership applications in June 2016, on the basis of the identification criteria, the Birdarra Law criteria, and the loyalty criteria, and its adoption of similar criteria under the new policies (including its adoption of the requirement for a commitment under the Code of Conduct, and the requirement for support for YAC's UNDRIP policy).
It remains, then, to reconsider all of the conduct the subject of the plaintiffs' allegations to determine if the conduct which constituted conduct of the kind within s 166-1(1), when considered together, warrants the appointment of a receiver. I am not persuaded that it does, for the reasons I have already outlined in relation to the issue of the appointment of a receiver.
However, I am satisfied that all of the oppressive conduct I have found to have occurred, especially when considered in the context of the long running dispute concerning membership of YAC, which has involved repeated instances of oppression over a number of years, warrants some relief being granted. The purpose of that relief must be to signal to the directors of YAC that their conduct has been contrary to the CATSI Act, and to endeavour to ensure that such conduct is not repeated into the future.
At the same time, I bear in mind that the directors of YAC have a statutory discretion to refuse membership to an applicant, and must be entitled to refuse membership in appropriate cases, including to any person who they, in good faith, consider would not act in the best interests of the corporation.
Consequently, taking no action at all is not an appropriate response in this case. As the appointment of a receiver is not the appropriate relief, and as none of the other more orthodox forms of relief for oppression in the corporate context are suitable here, what remains is injunctive or declaratory relief.

What is necessary, by way of relief, is to set aside the directors' decisions to refuse membership to applicants on the basis that they did not meet the identification criteria, the Birdarra Law criteria or the loyalty criteria. Those applications must then be reconsidered. It also needs to be made clear that the directors of YAC are not permitted to refuse membership of YAC to applicants who are identified as members or supporters of WMYAC, including for the reason that those persons take a different view from the directors about the merits of YAC entering into an agreement for compensation with FMG or have sought to prosecute that view in the past, including by the s 66B Application. That could be done by appropriately fashioned orders for injunctive and declaratory relief. I will hear from counsel in due course, but the necessary orders would appear to be along the following lines:
(i)A declaration that the conduct of the directors on 29 June 2016, in refusing applications for membership to applicants on the basis of their failure to meet the identification criteria, the Birdarra Law criterion and the loyalty criterion, was oppressive conduct within s 166-1(1) of the CATSI Act.
(ii)A declaration that the adoption of the new policies, in so far as they contained criteria for membership on the grounds of the identification criterion, the Birdarra Law criterion, the loyalty criterion, or required commitment to the Code of Conduct (including support for the UNDRIP policy) was oppressive conduct within s 166-1(1) of the CATSI Act.
(iii)An injunction to prevent the directors applying those aspects of the new policies in respect of any membership application in the future.
I digress at this point to observe that I see no difficulty in the directors applying other aspects of the new policies in the future, such as the time frame within which applications for membership will be considered, and by recourse to the views of Yindjibarndi elders in the case of uncertainty about an applicant's satisfaction of membership criteria. Indeed, in my view, in order to ensure that there is some confidence within YAC's membership, and within the Yindjibarndi community more generally, in relation to the consideration of membership applications by the directors, in any case in which the directors consider that an applicant for membership may not meet the criteria for membership in rule 3.1 of the Rule Book, it would be highly desirable for the directors to establish a committee of Yindjibarndi elders to whom such applications could be referred. I note that the new policies contemplated the establishment of an advisory Birdarra Law Committee.
I will hear from counsel as to whether it is open to the Court to mandate a requirement for recourse to that committee in relation to applicants for membership who the committee considers may not meet the criteria for membership of YAC. Such a committee might, for example, comprise both male and female Yindjibarndi elders, who are recognised and respected elders within the Yindjibarndi community, and who are regarded as the custodians of the traditional law and culture of the Yindjibarndi people, and an equal number of persons who are members of YAC, on the one hand, and persons who are members of YAC and who are also members or supporters of WMYAC, on the other hand.
Continuing on with the orders which should be made, the orders should also include:
(iv)A mandatory injunction to require the directors to reconsider the membership applications in (i), and any future membership applications, by applying the criteria for membership in rule 3.1 of the Rule Book, namely that the applicant has reached the age of 18 years, and is a Yindjibarndi person who holds in common the body of traditional law and culture of the Yindjibarndi people. (As I have said, I will hear from counsel as to whether it is open to the Court to mandate that in the event that the directors consider that an applicant may not meet those criteria, or are uncertain about satisfaction of those criteria, they must obtain the advice of an advisory committee of elders as described in the previous paragraphs.)
(v)An injunction to prohibit the directors from rejecting any application for membership of YAC, in respect of an applicant who otherwise meets the criteria for membership of YAC, solely on the basis that that applicant is a member of WMYAC, or supports entry into an agreement with FMG on the same, or similar, terms as those set out in the FMG Agreement;
(vi)In relation to the membership applications described in (i), compliance with the re-consideration of those applications, the process adopted, and the decisions reached, including the basis for those decisions, should be verified by an affidavit filed in the Court.
In the event that an application for membership is refused under this process, an unsuccessful applicant will have to consider such legal rights as they may have in respect of that decision.
In addition, a copy of this judgment should be forwarded to ORIC so that it may continue to monitor YAC's conduct in relation to its financial and management practices, in light of the conclusions reached in these reasons.
YAC's directors should also be left in no doubt that the Court's expectation is that they will take steps, with the assistance of YAC's accountants, to ensure that the directions set out in the second compliance notice continue to be observed, and to ensure that YAC's accounts are prepared in accordance with the relevant Accounting Standards concerning consolidated accounts for YAC and its subsidiaries.
In my view, a long term improvement in YAC's financial and management practices requires ongoing monitoring by ORIC to ensure that appropriate procedures and standards are maintained. ORIC has the means at its disposal, in the exercise of its powers under the CATSI Act, to take steps to ensure that that occurs.
I will publish these reasons, and then give the parties some time to confer about the terms of the orders which should be made, before calling the matter on for a hearing at which to make final orders.

Postscript: Determination of the Yindjibarndi #1 claim

On 20 July 2017, the Federal Court published its reasons for decision in the Yindjibarndi #1 claim. On 13 November 2017, Rares J made orders giving effect to those reasons for decision.
His Honour's determination was that native title exists in the Yindjibarndi #1 claim area to the extent set out in his Honour's determination. Of particular significance was his Honour's determination that in an area referred to as the 'exclusive area, the native title rights and interests [of the Yindjibarndi] people confer[red] the right to possession, occupation, use and enjoyment of that area to the exclusion of all others'.[1302] That area included unallocated Crown land on which FMG's Solomon Hub mine is located.
[1302] Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v The State of Western Australia [No 2] [2017] FCA 1299; Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v The State of Western Australia [2017] FCA 803.
In addition, Rares J ordered that an indigenous corporation called the Yindjibarndi Ngurra Aboriginal Corporation (YNAC) was to hold those native title rights on trust for the native title holders pursuant to the NT Act. YNAC was registered as an indigenous corporation under the CATSI Act, on 11 October 2017, and under the NT Act, the members of the Applicant in the Yindjibarndi #1 claim had nominated YNAC to hold on trust, as the PBC, their native title rights and interests over the claim area.[1303] However, as his Honour observed:[1304]
All of the Yindjibarndi people, regardless of whether they support WMYAC or not, are now entitled to the benefit of the exclusive and non‑exclusive rights and interests that YNAC will hold in trusts for them in large parts of the claimed area.
[1303] Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v The State of Western Australia [No 2] [2017] FCA 1299 [23].
[1304] Warrie (formerly TJ) (on behalf of the Yindjibarndi people) v The State of Western Australia [No 2] [2017] FCA 1299 [27].
The final observation which should be made is that nothing in the evidence at the trial suggests that the dispute within the Yindjibarndi community is intractable. On the contrary, the evidence demonstrated that members of the Yindjibarndi community have, in the past, been willing to attempt to resolve their dispute. The Deed of Settlement negotiated between the parties to this action is an example. A further example is a meeting held on 11 April 2014 in the 50 Cent Hall in Roebourne, which was attended by a large number of the members of the Yindjibarndi community. At that meeting, there was a discussion of various options for how the dispute between YAC and WMYAC might be resolved.[1305] These included matters such as equal representation on YAC's board of people identified as YAC members and people who were also WMYAC members, equal representation on the committees negotiating native title deals, the appointment of a new YAC chief executive officer (Michael Woodley having resigned to enable that to occur) and a framework for resolving disputes about membership of YAC.[1306]
[1305] Exhibit 1.635.
[1306] ts 1359 ‑ 1360.
Mr Woodley's evidence was that YAC had:[1307]
no issue with getting back to the table with FMG and negotiating on a fair deal. We ‑ we've always opened the door to our members who support the Wirlu‑murra side with their concerns about issues. We just don't share the same opinion [about the terms of such an agreement].
[1307] ts 1357 ‑ 1358.
It is to be hoped that the clarification of the extent of the native title rights of the Yindjibarndi people in the Yindjibarndi #1 claim area may provide a turning point for the Yindjibarndi people to leave behind their past differences and to work together to make decisions about whether, and if so how, they should enter into agreements with mining companies, and the terms of any such agreements which would best serve the interests of all of the Yindjibarndi people.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO HER HONOUR JUSTICE PRITCHARD
20 APRIL 2018