Wilson v Indigenous Services Pty Ltd [No 2] - [2021] WASC 338 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILSON -v- INDIGENOUS SERVICES PTY LTD [No 2] [2021] WASC 338
CORAM:   ALLANSON J
HEARD:   9, 10, 13, 14 & 23 SEPTEMBER 2021
DELIVERED          :   7 OCTOBER 2021
FILE NO/S:   CIV 1043 of 2021
BETWEEN:   TERRENCE KIM WILSON
First Plaintiff
URSULA WILSON
Second Plaintiff
MAVIS WESTERMAN
Third Plaintiff
LESLEY RHONDA THORNHILL
Fourth Plaintiff
KAREN BEASLEY
Fifth Plaintiff
AND
INDIGENOUS SERVICES PTY LTD
First Defendant
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Second Defendant
NJAMAL COMMUNITY CORPORATION PTY LTD
Third Defendant

Catchwords:

Charitable trust - Where Trust created for benefit of Aboriginal community - Where Advisory Committee elected under Trust Deed with power to terminate appointment of Trustee by three quarter majority of all members - Whether on proper construction of Trust Deed the decision to terminate the appointment of Trustee required a meeting of the Advisory Committee or could be done by circulating resolution
Charitable trust - Where plaintiffs claim Trustee removed by three quarter majority of all members at meeting of Advisory Committee - Whether plaintiffs have proved valid meeting of all members where vote taken - Turns on facts
Charitable trust - Where Advisory Committee has power to terminate appointment of Trustee - Whether presence and participation of non-members at meeting invalidates resolution - Turns on facts
Charitable trust - Where vote at meeting to terminate the appointment of Trustee - Whether person 'reinstated' to Advisory Committee without election at community meeting entitled to vote - Whether member of Advisory Committee telephoned from the meeting attended and voted - Turns on facts

Charitable trust - Where Trust Deed provided for election of Trustee Advisory Committee at annual community meeting to be called by Trustee - Where annual meeting held but did not proceed to elect Advisory Committee - Whether breach of trust by Trustee - Whether existing Advisory Committee members continue in office - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	C Stokes
Second Plaintiff	:	C Stokes
Third Plaintiff	:	C Stokes
Fourth Plaintiff	:	C Stokes
Fifth Plaintiff	:	C Stokes
First Defendant	:	M Cuerden SC
Second Defendant	:	S Teoh
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Chris Stokes & Associates
Second Plaintiff	:	Chris Stokes & Associates
Third Plaintiff	:	Chris Stokes & Associates
Fourth Plaintiff	:	Chris Stokes & Associates
Fifth Plaintiff	:	Chris Stokes & Associates
First Defendant	:	CX Law
Second Defendant	:	State Solicitor's Office
Third Defendant	:	Mendelawitz Morton Commercial Lawyers

Cases referred to in decision:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Harben v Philips (1883) 23 Ch D 14
Helton v Allen [1940] HCA 20; (1940) 63 CLR 691
Jones v Dunkel [1959] HCA 8; (1959) 10 CLR 298
Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495
Moala v Free Wesleyan Church of Tonga in Australia (Victoria)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASC 338 (S)
Decision Date

CaseChat Overview and Summary

The matter of Wilson v Indigenous Services Pty Ltd [No 2] involved the plaintiffs, the Njamal Peoples Trust, and the defendant, Indigenous Services Pty Ltd, who were the trustees of the Njamal Peoples Trust. The dispute centred on the failure of the trustees to hold elections for the Advisory Committee as stipulated in the Trust Deed. The case was heard by the Supreme Court of Western Australia. The plaintiffs argued that the trustees had breached their fiduciary duties by not facilitating the election of a new Advisory Committee and by convening community meetings that did not result in such elections.

The legal issues before the court were whether the trustees had adequately fulfilled their obligations under the Trust Deed to hold community meetings and to facilitate the election of Advisory Committee members. The plaintiffs relied on a previous decision by the court in Mongoo v Fiduciary Administration Services Pty Ltd [No 2], which involved a similar trust deed but with specific provisions regarding the term of Advisory Committee members. The court needed to determine whether the absence of equivalent provisions in the Njamal Peoples Trust Deed meant that the trustees were still obligated to hold elections for the Advisory Committee and whether the manner in which the 2019 and 2020 community meetings were conducted complied with the Trust Deed.

The court held that the plaintiffs' reliance on the Mongoo decision was misplaced. The court found that the Njamal Peoples Trust Deed did not contain a provision that prescribed a minimum term or limited the term of Advisory Committee members following a community meeting where no quorum was present. Instead, members of the Advisory Committee held their positions until a new Advisory Committee was chosen, as per sub-clause 9.10(a). The court found that while the trustees had a duty to organise community meetings at least once a year, the Trust Deed did not mandate that the election of a new Advisory Committee must occur at these meetings. The court also found that the trustees were not in breach of their duties for the manner in which they conducted the 2019 and 2020 community meetings, particularly considering the COVID-19 pandemic and the measures taken to avoid its spread.

The court made no orders in favour of the plaintiffs, dismissing their claims. The decision emphasised the importance of adhering to the specific provisions of the Trust Deed and highlighted that the trustees were not obligated to facilitate the election of a new Advisory Committee at every community meeting. The court also acknowledged the trustees' efforts to adapt the community meetings to the challenges posed by the COVID-19 pandemic.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The plaintiffs' reliance on my decision in Mongoo v Fiduciary Administration Services Pty Ltd [No 2] [2020] WASC 182 is misplaced. The trust deed in that case, although it had several similarities to the Njamal Peoples Trust Deed, contained, in cl 9.11, a provision which has no equivalent in the present case:9.11Term of Advisory Committee MembersThe Advisory Committee shall act for a minimum of 12 months beginning from the time they are elected and may continue to act for a further 12 months if a quorum is not present at the community meeting of the Yugunga-Nya People called in accordance with clause 9.10.[118][118] See Mongoo v Fiduciary Administration Services [2020] WASC 182 [56], emphasis added. In contrast, there is nothing in the Njamal Peoples Trust Deed which discloses an intention to prescribe a minimum term, or to limit the term of a committee member following a community meeting where no quorum is present. In accordance with sub-cl 9.10(a), members of the Advisory Committee hold that position until a new Advisory Committee is chosen. There was no equivalent clause in the deed that I considered in Mongoo. ISPL convened a Community Meeting in each of 2019 and 2020. For the 2019 meeting the agenda included 'Election of Trustee Advisory Committee members - if required', with the facilitator nominated as responsible. The item on the 2020 agenda was 'Review of Trustee Advisory Committee members - if required', with beneficiaries nominated as responsible. There is room for disagreement on the evidence about whether it was necessary to shut down the 2019 meeting, following an argument within one of the families. The minutes of the meeting show that the meeting proceeded to the election and questions were raised by beneficiaries about the method of identifying family groups (to comply with cl 9.8 of the Trust Deed). I am satisfied that the decision to break into family groups for further discussion was for the purpose of enabling the election to proceed, not to prevent it. The seriousness of what then happened was perceived differently by different people. The evidence does not, however, support a finding that the decision to shut the meeting down was for the purpose of avoiding the election of a new Advisory Committee. The effect was that no election was conducted, and the Advisory Committee was not replaced. There can also be differing opinions about the measures that were taken to hold the 2020 meeting as a virtual meeting. I am satisfied that what was done was for the purpose of avoiding the spread of COVID-19 into the relevant communities, while providing for the attendance by electronic media of interested members of the Njamal community. It is not in dispute that the meeting did not proceed to elect a new Advisory Committee. The evidence does not show why that did not occur. The minutes of that meeting were not in evidence. There is no evidence that any beneficiary was prevented from raising that agenda item. I do not intend, by these reasons, to suggest that the only obligation on the Trustee is to convene an annual meeting of the community. Subclause 9.10(b) of the Trust Deed provides that, commencing from 2004, the Trustee shall organise a community meeting of the Njamal People and thereafter ensure that such a meeting is organised at least once each calendar year. That obligation arises in the context of a clause which is solely concerned with the election, resignation, and replacement of members of the Advisory Committee. While paragraph (d) simply provides that the community meeting 'may' elect a new Advisory Committee, the Trustee, consistently with its duty under the Trust Deed, should enable that election to occur.