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

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) Inc [2019] VSC 205
Mongoo v Fiduciary Administration Services [2020] WASC 182
Montevento Holdings Pty Ltd v Scaffidi [2012] HCA 48; (2012) 246 CLR 325
Northwest Capital Management v Westate Capital Ltd [2012] WASC 121
Re Ferguson (1995) 58 FCR 106
Sun Hung Kai Investment Services Limited v Metals X Limited [2019] FCA 1673; (2019) 139 ACSR 361
Tayeh v Commonwealth [2020] FCA 1323
Wagner v International Health Promotions (1994) 15 ACSR 419

ALLANSON J:

The Njamal People's Trust is a charitable trust. Indigenous Services Pty Ltd (ISPL), was appointed Trustee of the Trust in 2016. On three occasions in 2018 and 2019, members of the Advisory Committee established under the Trust purported to remove ISPL as Trustee. ISPL did not accept that it had been validly removed under the Trust Deed.
On 25 January 2021, the plaintiffs commenced these proceedings seeking declarations that ISPL had been validly removed and, on acceptance of the office by the new Trustee, had been replaced by the third defendant, Njamal Community Corporation Pty Ltd.
The plaintiffs also seek declarations to the effect that there are currently no validly appointed members of the Advisory Committee and to require the Trustee to convene a community meeting to elect members of the Advisory Committee in accordance with the Trust Deed.

Background

The Trust Deed

The Njamal People's Trust was established by Trust Deed, executed on 29 October 2003, and varied by Deeds of Variation made 17 November 2010 and 2 April 2012.
The Trust was established to be a perpetual charitable trust to 'assist the Beneficiaries who are Persons of Aboriginal Descent'.[1] The Trust Deed specifies two classes of beneficiaries, Primary Beneficiaries and Additional Beneficiaries. The distinction between them is not material to the present application.
[1] Recital B.
Clause 5 of the Trust Deed provides for the Trustees, including their appointment and removal. Relevantly, a person appointed as Trustee shall act until that person retires or is replaced in accordance with the Deed or any applicable legislation.[2]
[2] Sub-clause 5.2.
Clause 9 provides for the appointment and operation of an Advisory Committee 'to advise the Trustees in accordance with this Deed'.[3] The Advisory Committee has the power to appoint, remove or replace a Trustee. By sub-cl 5.5,
The Advisory Committee, by a three quarter majority decision of all Advisory Committee members, may terminate the appointment of a person as Trustee and may appoint a person or persons as a replacement Trustee and such person or persons appointed shall, on acceptance of such appointment, become a Trustee.
[3] Sub-clause 9.1.
Following amendments to the Trust Deed in 2012, the total number of members of the Advisory Committee shall not exceed 14 members with, so far as practical, each member representing one family group 'so as to ensure fair family representation on the Advisory Committee'.[4] Any or all of the members may also be Beneficiaries.[5]
[4] Ex 1.3, sub-cl 9.8 as amended.
[5] Sub-clause 9.7
Sub-clause 9.10 provides:
(a)Subject to sub-clause 9.10(f), the members of the Advisory Committee shall hold their positions until a new Advisory Committee is chosen in accordance with this sub-clause.
(b)Unless the functions of the Advisory Committee have ceased pursuant to sub-clause 9.14, commencing in the year 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. The reasonable expenses associated with convening the community meeting may be paid out of the Trust Fund.
(c)A quorum for the said community meeting shall be fifteen (15) adult Njamal People.
(d)If a quorum is present, then the community meeting may elect a new Advisory Committee by simple majority of votes, which shall upon election replace the previous Advisory Committee.
(e)If a quorum is not present, the Trustee shall call another community meeting as soon as is reasonably practical and a quorum at this meeting shall be the number of Njamal People present.
(f)here an Advisory Committee member resigns, his or her position may be filled by the remaining Advisory Committee members, and that person shall hold that position until the next community meeting referred to in subclause 9.10(b).
The Trust Deed provides for matters on which the Trustee shall consult the Advisory Committee[6] and other matters on which the Trustee may consult the Advisory Committee.[7]
[6] Sub-cl 9.3.
[7] Sub-cl 9.4.
Sub-clause 9.6 sets out the procedure for consultation by the Trustee with the Advisory Committee. In effect, consultation shall be undertaken at meetings of the Trustee and the Advisory Committee, with arrangements for the meetings as agreed between the Trustee and the Advisory Committee.[8] Provision is made for consultation other than at a meeting in situations of urgency.
[8] Sub-cl 9.6(a).
Sub-clause 9.9 provides separately for meetings to appoint, remove, or replace the Trustee:
Any Advisory Committee member may convene a meeting of the Advisory Committee for the purpose of appointing a new Trustee (if there is none) or to remove and replace a person acting as Trustee as set out in sub-clauses 5.4 and 5.5 and the method of organising a meeting of the Advisory Committee as set out in sub-clause 9.6 shall apply with necessary modifications.
In 2014, the then Trustee, Australian Executor Trustees Ltd, and members of the Advisory Committee adopted a set of interim rules (Rules) regarding the conduct of the Advisory Committee. The plaintiffs plead these Rules, or some of them, applied to meetings of the Advisory Committee to consider removal and replacement of the Trustee.

The Rules[9]

[9] Ex 1.4.

The Rules are described as 'interim rules to be adopted by the Committee as at 28 July 2014'. The Rules are expressed to be 'regarding the conduct of the Advisory Trustee Committee in relation to the administration of the Trust'.
The Rules, in some respects, are inconsistent with the Trust Deed.
In particular, sub-cl 9.10 of the Trust Deed provides for the election of members of the Advisory Committee at a community meeting of the Njamal People, to be organised each calendar year. Sub-clause 9.11 provides that members of the Advisory Committee hold their positions until the election of a new Advisory Committee in accordance with that sub-clause or by the member resigning. Despite those provisions in the Trust Deed, the Rules purport to provide:
(1)members shall hold office for two years from the date of election, with only half of the available positions elected each year;
(2)members may have a proxy 'to ensure that family representation is achievable' in each meeting;[10]
(3)an elected member may be replaced 'by their nominated proxy' should the member not attend three consecutive meetings with no genuine supported reason for non-attendance.
[10] Since amendment to the Trust Deed in 2010, sub-cl 9.8 provides 'each member will represent one family group, so as to ensure fair family representation on the Advisory Committee'.
Rule 3(vii), although it commences with the words 'as set out in the trust deed', provides for the Advisory Committee to pass a resolution without a meeting. The Trust Deed provides, in sub-cl 9.6(e) for the committee to provide a written recommendation after meeting, but not without a meeting having first occurred.
The Rules otherwise provide for two weeks written notice of a meeting; election of a chair from among the Committee members, with the chair to hold office until the election of a successor; the election of a secretary responsible for keeping the minutes of the meeting; the distribution and ratification of minutes; and for the Rules to be reviewed and agreed by any new Advisory Committee.

The parties

The first plaintiff, Terrence Kim (Terry) Wilson is a member of the Njamal People and a member of the Advisory Committee. He is the only member of the Advisory Committee who was a party to the action.
The other plaintiffs are members of the Njamal People and Beneficiaries under the Trust.
I have already referred to the position of ISPL as first defendant.
The second defendant, the Attorney General of Western Australia, was a necessary party in an action that relates to the regulation and internal management of a charity. The Attorney General did not lead evidence or cross examine witnesses but made submissions regarding the proper determination of the dispute. The Attorney General generally supported the position of ISPL, but his submissions were not confined to simply adopting the case advanced by ISPL.
The third defendant, Njamal Community Corporation Pty Ltd, did not participate in the trial.

Relevant people

It is not in dispute that at a community meeting of the Njamal People on 22 October 2018, the following persons (in alphabetical order) were elected as members of the Advisory Committee:
(1)Kevin Allen;
(2)Graham (Marty) Coppin;
(3)Troy Eaton;
(4)Thomas Geary;
(5)Willie Jumbo;
(6)Wayne McKie;
(7)Kathleen McKenna;
(8)Gavin Mitchell;
(9)Aileen (Candy) Mitchell;
(10)Terry Rustus;
(11)Dean Snook;
(12)Tony Taylor;
(13)Lloyd Williams; and
(14)Terry Wilson.
Three other members of the Njamal People participated in the events relevant to this action, but are not elected members of the Advisory Committee: Ian ('Sticks') Taylor and Travis McPhee, both of whom are said to have attended a meeting of the Advisory Committee on 29 November 2018; and Sharon Westerman, who assisted in organising and attended a meeting of the Advisory Committee on 1 April 2019, at which she was 'reinstated' as a member.
Because several of the relevant people have the same family name, I will use their first name and family name where it is necessary for clarity.
Andrew White and Kathryn Bates are the directors of ISPL.
Armeli & Molony are a firm of solicitors in Perth who acted for members of the Advisory Committee during 2018 and 2019. Damian Molony (Principal) and Philip Lafferty (Special Counsel) are lawyers who were connected with that firm. It is not clear how many members of the Advisory Committee agreed to engage them; they appear to have been instructed by Mr Snook, Mr Eaton and Troy Millen.[11]
[11] ts 86, ts 150.
Sabina Schlink is a lawyer who, in 2019, was acting on instructions from members of the Njamal People including (and it appears primarily instructed by) Ms Westermann.
Neal James Guilmartin is the director of the company which holds the licence for the Walkabout Hotel in Port Hedland, where the 2019 meeting of the Njamal People was held.
Reference was also made in evidence to Troy Millen, who may have been connected with the third defendant, and who appears to have been active in attempting to procure the removal of ISPL as Trustee. Rod Carter, had previously been a director of ISPL. I mention them both in the course of the reasons, but their actions are of little, if any, significance to my findings.
In his evidence, Mr Wilson referred to the attendance at the meeting on 29 November 2018 of Don Patterson. There was no other evidence about him.

The action

The plaintiffs contend that the power of the Advisory Committee to remove and replace ISPL as Trustee was exercised on the following occasions:
(1)by circular resolution signed by 12 members of the Advisory Committee between 30 October 2018 and 5 November 2018;[12] alternatively, by circular resolution signed by 13 members between 30 October and 29 November 2018;[13]
(2)at a meeting of the Advisory Committee on 29 November 2018;[14]
(3)at a meeting of the Advisory Committee on 1 April 2019.[15]
[12] Statement of claim [21].
[13] Statement of claim [23A].
[14] Statement of claim [20].
[15] Statement of claim [24].
The plaintiffs further contend that ISPL breached its obligations under the Trust Deed by failing to present a resolution for the election of a new Advisory Committee to the Njamal People community meeting held on 30 November 2019, 'by failing to effect the election of a new Advisory Committee' at that meeting; and by closing the meeting.[16]
[16] Statement of claim [31].
The plaintiffs similarly contend that ISPL breached its obligations under the Trust Deed by failing to present a resolution for the election of a new Advisory Committee and by failing to effect the election of a new Advisory Committee at the community meeting of the Njamal People on 27 November 2020.
At trial, the plaintiffs also questioned the conduct of the 2020 community meeting as a virtual meeting, resulting in some members of the community being able to attend in person, with others only able to attend remotely. The plaintiffs did not, however, submit that the meeting was invalid or that it failed for want of a quorum.
The plaintiffs do not, however, seek any relief related to those alleged breaches other than a declaration that the terms of the Advisory Committee members elected on 22 October 2018 ceased on 30 November 2019, alternatively on 27 November 2020, so that there is currently no validly appointed Advisory Committee.

Procedural history

The action was commenced by originating summons on 25 January 2021. The plaintiffs sought interim relief, which is no longer relevant, and the following final relief:
(1)Declarations that:
(a) the first defendant was removed as trustee of the Trust by a three quarter majority vote of the Trust Advisory Committee of the Trust, pursuant to clause 5.5 of the Trust Deed established on 29 October 2003 (Trust Deed), held on 29 November 2018 and by circular resolution dated 30 October 2018 which was signed between 30 October 2018 and 29 November 2018;
(b) Njamal Community Corporation Pty Ltd ACN 629 633 601 (formerly Empowered Njamal Pty Ltd) was validly appointed as trustee of the Trust on and from 30 October 2018 and remains the validly appointed trustee of the Trust.
(2)In the alternative to paragraph (1), declarations that:
(a)the first defendant was removed as trustee of the Njamal People's Trust (Trust) by a three quarter majority vote of the Trust Advisory Committee of the Trust, pursuant to clause 5.5 of the Trust Deed, held on 1 April 2019 at Web Business Hub 18 Edgar Street Port Hedland in the State of Western Australia;
(b)Njamal Community Corporation Pty Ltd ACN 629 633 601 (formerly Empowered Njamal Pty Ltd) was validly appointed as trustee of the Trust on1 April 2019 and remains the validly appointed trustee of the Trust.
(3)In any event, declarations that:
(a) the Trust Advisory Committee elected at the community meeting of the Njamal People held on 22 October 2018 ceased being the validly constituted Advisory Committee of the Trust as of 30 November 2019, being the date on which a quorate community meeting of the Njamal People was held in accordance with clause 9.10 of the Trust Deed;
(b) the Trustee be required to organise a community meeting of the Trust, such community meeting to be held within 6 weeks of the date of this order, to elect a Trust Advisory Community pursuant to clause 9.10 of the Trust Deed and to engage the services of the Western Australian Electoral Commission to supervise the election of the Trust Advisory Committee.
The originating summons was supported by the affidavit of one of the plaintiffs, Terry Wilson, sworn 18 January 2021.[17]
[17] Ex 7.
Having regard to the nature of the matters in issue, on 19 February 2021 I ordered that the action proceed by way of pleadings.
The plaintiffs filed a statement of claim on 19 March 2021, and a minute of amended statement of claim on 12 August 2021 which, on 16 August 2021, was ordered to stand as the statement of claim. The relief sought no longer corresponds with the pleaded case, but the parties agreed that the claim should be determined by reference to the case run at trial.
ISPL filed a defence on 29 March 2021, and an amended defence on 17 August 2021. ISPL also departed from the pleaded case and advanced, without objection, a positive defence to the allegations regarding the meeting of 29 November 2018.
The Attorney General did not plead.
Each of the plaintiffs and ISPL provided further and better particulars.
The action has an unusual procedural history. The originating summons sought relief in relation to a meeting of the Advisory Committee said to have been held on 30 October 2018. In his affidavit in support of the application, Terry Wilson deposed to the events at a meeting on that date. The statement of claim filed on 19 March 2021[18] pleaded a meeting on that date. The plaintiffs provided further and better particulars as to the conduct of that meeting: how, and by whom, notice of the meeting was given; who was present; how the vote was taken; and what was said.
[18] Statement of claim [20].

In the amended statement of claim, the plaintiffs deleted the reference to the meeting of 30 October 2018, and pleaded the meeting occurred on 29 November 2018.
The first of the declarations sought also relate to a circular resolution dated 30 October 2018. The statement of claim pleaded that resolution was signed by 13 members of the Advisory Committee on various dates between 30 October 2018 and 29 November 2018. The amended statement of claim pleaded a circular resolution signed by 12 members of the Advisory Committee between 30 October 2018 and 5 November 2018, alternatively by 13 members between 30 October 2018 and 29 November 2018.[19]
[19] Statement of claim [21]. The plaintiffs plead that Gavin Mitchell signed the resolution, which had previously been signed by 12 members of the Advisory Committee, at the meeting on 29 November 2018.
In response to a request for particulars of when and how each of the members of the Advisory Committee was provided with the 'circular resolution', the plaintiffs pleaded that it was presented to each of the members present at the meeting on 30 October 2018 by Philip Lafferty, who was representing Armeli & Molony (the solicitors for the Advisory Committee) at the meeting and facilitating the meeting. At trial, the uncontested evidence was that any meeting on 30 October 2018 was at a café in South Hedland and was attended by only three members of the Advisory Committee. One of those attending said it was just a breakfast.
In setting out that history, I intend no criticism of the legal representatives now acting for the plaintiffs. The plea and the particulars are based on documents, including the affidavit of Mr Wilson and letters from the solicitors then acting for members of the Advisory Committee, which clearly support that pleading.[20]
[20] See, in particular, Ex 1.17, a letter signed by Damian Molony of Armeli & Molony addressed to ISPL, in which he states that he had been instructed that on 30 October 2018 the Advisory Committee held a meeting in accordance with sub-cl 5.5 of the Trust Deed at which the services of ISPL were terminated; and that, subsequent to that meeting, 12 of the 14 members of the Advisory Committee signed a circular resolution confirming the termination.
In his affidavit, Mr Wilson deposed that he was present at a meeting of the Advisory Committee held at the offices of Armeli & Molony in Perth on 30 October 2018. He stated that 10 other members of the advisory committee were present in person, three members attended by telephone (Lloyd Williams, Tony Taylor and Marty Coppin), two members of the Njamal People were present as observers (Travis McPhee and Ian Taylor), and Damian Molony was present.[21]
[21] Ex 7 [31] - [32].
Mr Wilson further deposed that at the meeting, 12 of the 14 members passed a resolution to remove ISPL as Trustee, Mr Williams said he was resigning; and immediately after the meeting 'a circular resolution confirming the vote to remove ISPL was prepared and signed by 12 of the 14 Advisory Committee members'.[22]
[22] Ex 7 [36].
Mr Wilson further deposed that the Advisory Committee had previously, in 2014, removed a trustee by circular resolution and had been advised that method sufficiently complied with sub-cl 5.5 of the Trust Deed.[23]

The pleaded case

The meeting of 29 November 2018

[23] Ex 7 [45].

The plaintiffs allege that on 29 November 2018 there was a meeting of the Advisory Committee at which a resolution to remove the first defendant as Trustee of the Trust and to appoint Njamal Community Corporation Pty Ltd (formerly Empowered Njamal Pty Ltd) as replacement trustee was passed by a three quarters majority of the total number of members of the Advisory Committee.
In particulars, the plaintiffs allege the meeting took place at the office of Armeli & Molony in Perth. The meeting was attended in person by Terry Wilson, Gavin Mitchell, Willie Jumbo, Wayne McKie, Terry Rustus, Dean Snook, Troy Eaton, Thomas Geary, Kathleen McKenna, Aileen Mitchell and Kevin Allen and Lloyd Williams and Marty Coppin by telephone. The particulars do not include Tony Taylor as attending the meeting. The plaintiffs led evidence that he did attend and pleaded that all 14 members attended.
The plaintiffs plead that all 14 members of the Advisory Committee present in person or by telephone passed the resolution to remove ISPL as Trustee and to appoint Njamal Community Corporation (formerly Empowered Njamal Pty Ltd).
In further and better particulars, filed 15 September 2021, the plaintiffs plead:
After a general discussion Dean Snook, who was appointed chairman of the meeting said words to the effect 'can I have a show of hands of all those in favour of removing Indigenous Services as trustee'. Terry Wilson, Willie Jumbo, Wayne McKie, Terry Rustus, Dean Snook, Troy Eaton, Thomas Geary, Kathleen McKenna, Aileen ('Candy') Mitchell and Tony Taylor, Ian ('Sticks') Taylor (who was acting as proxy for Lloyd Williams) put up their hands. Initially Gavin Mitchell did not put up his hands but after a short discussion with Travis McPhee who was sitting beside him he put up his hand. Marty Coppin who was on the phone said words to the effect 'I'll go with whatever you do Sticks'.
In further and better particulars, the plaintiffs also plead that, on 14 November 2018, Damian Molony of Armeli & Molony gave notice of the meeting to be held on 29 November at 2.00pm in the offices of Armeli & Molony.[24]
[24] The evidence was that the meeting began in the morning.
ISPL pleads a simple denial, but ran a more positive defence at trial, contending:
(1)the plaintiffs had not established the validity of the meeting and any resolutions purportedly passed, given the absence of any evidence of sufficient notice of the meeting when not all members of the Advisory Committee attended;
(2)Aileen Mitchell and Wayne McKie did not attend a meeting on 29 November 2018;
(3)the evidence of the plaintiffs' witnesses is consistent with a later meeting held on 8 or 9 March 2019, at which no quorum was present;
(4)if the meeting proceeded as alleged, the resolution would be invalid due to the participation of persons who were not members of the Advisory Committee.
Initially, ISPL appeared to deny that there had been a meeting on 29 November 2018. By final submissions, it was common ground that some meeting had proceeded on that day, but it remained in issue whether it was properly convened and who had attended.

The circular resolution

The plaintiffs also plead that the Advisory Committee resolved to remove ISPL as Trustee by circular resolution.
ISPL pleads that the resolution to remove it as Trustee could not be passed by circular resolution, alternatively could not be passed by circular resolution except unanimously.
ISPL also questions whether the signatures which appeared on the resolution had been properly obtained. It relies, in part, on the form of the document where the terms of the resolution do not appear on the signature page. As a matter of evidence, the issue was complicated by the absence of the original circular resolution: there were two copies in evidence in the trial bundle, but both were photocopies. One of them had handwritten annotations on it,[25] but there was no evidence about who made those annotations and when, or what they were intended to record.

The meeting of 1 April 2019

[25] See also Ex 7, TW-10.

The plaintiffs also plead that, on or about 1 April 2019, there was a meeting of the Advisory Committee at which a resolution to remove ISPL as Trustee of the Trust, and to appoint Njamal Community Corporation, was passed by a three quarters majority of the total number of members of the Advisory Committee.
The plaintiffs plead that, by notice dated 18 March 2019, Lloyd Williams was removed as a member of the Advisory Committee because he had not attended meetings of the Advisory Committee on 30 October 2018, 8 March 2019, 9 March 2019 and 10 March 2019.
The plaintiffs plead that at the 1 April 2019 meeting, of the 12 members of the Advisory Committee still appointed, a quorum of 10, or nine, members was present in person or by telephone. They plead that the members present in person or by telephone voted unanimously in favour of the following resolution:
That the appointment of Indigenous Services Pty Ltd as trustee of The Njamal Peoples Trust which was established on the 29 October 2003 be terminated pursuant to clause 5.5 of The Njamal Peoples Trust Deed effective upon the date this resolution is passed by a three-quarter majority decision of all the current TAC members. Also that the meeting notifications from 1 March 2019 and further correspondence and meetings held by TAC members enables this meeting to be ratified as legal to move the circular resolutions being put forward today.[26]
[26] Statement of claim [24].
ISPL pleads that at a meeting of the Advisory Committee held on 20 March 2019, motions to terminate the appointment of ISPL as Trustee and appoint a replacement trustee were not passed by a three quarter majority. It was tentatively agreed to hold the next meeting on 1 April 2019, but no notice was given to members of the Advisory Committee of a meeting to be held on that date. No notice was given to members of the Advisory Committee of any intention to put the motion to terminate the appointment of ISPL at that meeting, and some members of the committee were unable to attend. ISPL pleads that it was agreed between ISPL and Wayne McKie, who had been elected chair of the meeting on 20 March 2019, that the meeting would be postponed.[27]
[27] Defence [16].
ISPL further pleads that Sharon Westerman attended and participated in the meeting despite not being a member of the Advisory Committee.

The Community Meetings in 2019 and 2020

The plaintiffs further allege that the Advisory Committee elected in 2018 is no longer validly appointed. They allege that, following the convening of community meetings on 30 November 2019 and 27 November 2020, at both of which there was a quorum of adult Njamal People present, the terms of the present members ceased. On each occasion, the meeting failed to elect a new Advisory Committee.
ISPL admits that a new Advisory Committee was not elected at either community meeting. It says that no person present put a motion to elect a new Advisory Committee or to change the membership of the Advisory Committee at either meeting.
ISPL further pleads that the court should refuse discretionary relief on the grounds that
(a)ISPL has at all times continued to act as Trustee of the Trust;
(b)Njamal Community Corporation has not accepted appointment as Trustee of the Trust or otherwise taken any steps to act as Trustee of the Trust;
(c)the Attorney General supports ISPL remaining as the Trustee of the Trust and is opposed to Njamal Community Corporation acting as Trustee of the Trust.
ISPL further says that the relief should be refused by reason of the non-joinder of the persons named as the members of the advisory committee elected in 2018.

The evidence

The plaintiffs called two members of the Advisory Committee at the material times: Terry Wilson and Dean Snook.
The plaintiffs also relied on the evidence of Travis McPhee, who gave evidence about attending a meeting of the Advisory Committee, although not a member.
Sharon Westerman gave evidence about the meeting of 1 April 2019 at which she was reinstated as a member of the Advisory Committee.
The witnesses also gave evidence about the two relevant community meetings in 2019 and 2020. The plaintiffs called Mr Guilmartin in relation to events at the meeting in 2019.
The last of the plaintiffs' witnesses was Sabina Schlink, who gave evidence about her role in the meeting of 1 April 2019 and her attendance at the community meeting later that year.
ISPL adduced evidence from two members of the Advisory Committee: Aileen Mitchell and Wayne McKie.
Kathryn Bates and Andrew White also testified.
The parties tendered the Trust Deed and the Advisory Committee Rules, and relied on documents including the circular resolution, notices and correspondence.
I will deal with issues of credibility, where necessary, in making findings about the major issues.

Consideration

Preliminary matters

First, rules for the construction of contracts apply also to trusts.[28] The court must look to the ordinary and natural meaning of the words that are used in a particular provision of the Trust Deed, when that clause is read in the context of the whole document.[29] Consideration should ordinarily be given not only to the language of the instrument, but also to the apparent purpose and object of any transaction created by or evidenced in it.
[28] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [59], [102]. Mercanti v Mercanti [2016] WASCA 206; (2016) 50 WAR 495 [68] - [77].
[29] See, for example, Montevento Holdings Pty Ltd v Scaffidi [2012] HCA 48; (2012) 246 CLR 325.
Second, the Trust Deed provides for the business of the Advisory Committee to be transacted at meetings. Resolutions passed at meetings of the Advisory Committee - at least meetings convened under sub-cl 9.9 - are intended to have legal effect.
The law relating to meetings, as modified by the provisions of the Trust Deed, apply to the conduct of such a meeting. The facts of this action require consideration of the terms of the Trust Deed and the common law relating to the attendance at meetings by telephone, the requirements of proper notice, and voting by proxy.
The Trust Deed provides for meetings of the Advisory Committee to take place by telephone, teleconferencing, or any other electronic medium. Where meetings are conducted by electronic medium, for there to be a 'meeting', each participant must be able to be aware of the contributions to the meeting made by others and to contribute themselves to the meeting.[30]
[30] See, for example, Wagner v International Health Promotions (1994) 15 ACSR 419, 421 - 422; Re Ferguson (1995) 58 FCR 106.
The Trust Deed does not provide for notice of a meeting, although the rules, if they apply, require 14 days written notice.
Generally, the requirement to give proper notice of a meeting goes to the validity of the meeting. Where a meeting has been convened, or business has been conducted, in breach of the rules with respect to the giving of notice to all members, in due time and with proper notification of business, the meeting is null and void for all intents and purposes and no business can be validly transacted at the meeting.[31]
[31] Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205 [350], citing A D Lang, Horsley's Meetings: Procedure, Law and Practice (LexisNexis Butterworths, 7th Edition, 2015), 37.
The general principle at common law is that a person has no right to appoint another person to act and vote on their behalf as their proxy. Any such right must be conferred by the documents constituting the relevant body.[32] The Trust Deed does not provide for voting by proxy or for the practice, apparently adopted by the Advisory Committee, that members have a 'standing' proxy representing the same family group.
[32] Sun Hung Kai Investment Services Limited v Metals X Limited [2019] FCA 1673; (2019) 139 ACSR 361 [28]; Harben v Philips (1883) 23 Ch D 14, 35 - 36.
Finally, ISPL also challenged the validity of any resolution at the two meetings because of the presence and influence of strangers at each meeting.
On the plaintiffs' case, Ian Taylor and Travis McPhee attended the meeting which they allege occurred on 29 November 2018. On the evidence, Troy Millen, Don Patterson, Damian Molony, and Philip Lafferty may also have been present for at least part of the meeting. And Dean Snook may have been on the phone to Rod Carter for some of it.
The meeting of 1 April 2019 was chaired by Ms Schlink, and Ms Westerman attended and purported to participate as a member of the Advisory Committee.

The Circular Resolution

The plaintiffs relied on a document, described as a Circular Resolution, which includes the signatures of 13 of the members of the Advisory Committee.

The evidence

On 5 November 2018, Armeli & Molony, purportedly acting on behalf of the Advisory Committee wrote to ISPL and advised that the Advisory Committee had, at a meeting on 30 October 2018, terminated the appointment of ISPL in accordance with sub-cl 5.5 of the Trust Deed. The letter further advised that, subsequent to the meeting, 12 of the 14 members of the Advisory Committee had signed a Circular Resolution confirming the termination.[33]
[33] Ex 1.17.
The letter attached a copy of a document. The original was not tendered in evidence and it appears that none of the parties had it. The copy document has three pages. The first is headed Circular Resolution and is in these terms:
Following from the Trustee Advisory Committee meeting held on 30 October 2018 where it was resolved:
1.The appointment of the current trustee(s) of the Trust be terminated; and
2. Empowered Njamal ACN 629 633 601 be appointed as trustee of the Trust;
3.Dean to circulate the resolution to the other TAC members for their signing;
4.Dean to be authorised to work with the TAC lawyer, Armeli Molony, to effect the transition to the new Trustee; and
5.Dean Snook be authorised by the Advisory Committee to execute all documents and attend to all other matters to give effect to the above resolutions, with a 12 month appointment period.
We resolved by Circular Resolution in accordance with 9.6(e) of the Trust Deed that:
1.The appointment of the current trustee(s) of the Trust be terminated; and
2.Empowered Njamal ACN 629 633 601 be appointed as trustee of the Trust;
3.The TAC meeting held on 30 October 2018 was authorised in accordance with the requirements of the Trust Deed;
4.Dean to be authorised to work with the TAC lawyer, Armeli Molony, to effect the transition to the new Trustee; and
5.Dean Snook be authorised by the Advisory Committee to execute all documents and attend to all other matters to give effect to the above resolutions, with a 12 month appointment period.[34]
[34] Ex 1.17, 191.
The following two pages are simply headed, 'Signed by', and each has space for signing by the then 14 members of the Advisory Committee. One page has nine signatures, three of which are dated '30.10.18'. The other page has three signatures: two dated 31 October and the other dated 1 November 2018.
The evidence about the signing the document was not entirely consistent. Mr Wilson said:
before we signed that document, we were told to go down to Perth. Troy Eaton - Troy Millen arranged us to go down to remove Indigenous Service….
Can you recall where you were presented with this document?--- This is the document we had in the office, on top.[35]
[35] ts 58 - 59.
In cross examination, Mr Wilson said that the document was 'passed around the table' at the meeting, but then said, 'I know we usually sign documents like that around the table'.[36]
[36] ts 81 - 82.
When considered with his affidavit, Mr Wilson's evidence regarding the signing of the circular resolution is not reliable.
Mr Snook said that he was voted in to take charge with Troy Eaton to help him to get rid of ISPL.[37] The only meeting at which this could have occurred is that on 30 October 2018, which had only three members of the Advisory Committee present.
[37] ts 127.
Mr Snook said he and Troy Eaton prepared the document and got Troy Millen to help print it out. Mr Snook said he approached other Advisory Committee members to request them to sign it, and 'explain what was going on first before they signed it'.[38] He said he approached Kathleen McKenna, Tony Taylor, Terry Rustus, Willie Jumbo, Terry Wilson, Marty Coppin, Kevin Allen, Wayne McKie and Gavin Mitchell.[39] Mr Snook said:
We just said like, they - the trust wasn't doing the right thing for a number of people - a whole number of people, and then that Troy Eaton had discussed a bit more - extra with that, with the information. And then, yes, for them to sign.[40]
[38] ts 127.
[39] 127 - 128.
[40] 128.

Mr Snook said he saw each of them read the document and he also read it to them and explained the purpose of getting rid of ISPL.[41]
[41] 129.
Mr Snook was asked if the document was present at the meeting in the lawyers' office in Perth, which was attended by all members of the Advisory Committee, Ian Taylor and Travis McPhee. He said, 'There was signature ones', although he then said that it should have been there. Mr Snook said the members all voted, 'and so once they - they signed it and then all agreed…'[42] When asked about the signature on the document of Travis McPhee, Mr Snook said that would have been with Troy Eaton.[43]
[42] ts 137.
[43] ts 139.
Mr McPhee's evidence was that the document was signed at the meeting in the offices of Armeli & Molony, and that he saw everyone who was at the table that day sign the document.[44] On the evidence, the document with at least 12 signatures was probably in existence before 5 November 2018, when Armeli & Molony referred to it in the letter of that date. The evidence of Mr McPhee is also not reliable.
[44] ts 191 - 192.
Ms Mitchell recognised her signature on the signature page, although commented that she was normally 'pretty particular' about dates against her signature.[45] Ms Mitchell said she did not recall being shown the wording of the resolution and could not recall how her signature came to be on the document.[46]
[45] ts 196.
[46] ts 197, 204.
Ms Mitchell came across as uncertain in her evidence, referring frequently to being new on the Advisory Committee and going along with the others. Her evidence that she could not recall how her signature came to be on the document, which I accept, is inconsistent with her being told that the purpose of the document was to remove the trustee.
Mr McKie said that he had only seen the document in that form - with the page containing the resolution - in the weeks before trial.[47] He agreed that his signature was on the signing page, together with a date in his handwriting. He said he had been given the document by one of the Advisory Committee members in the trust offices in South Perth. He said he was told that the document was to keep ISPL 'on board' and he had never knowingly signed a document for its removal.[48]
[47] ts 325.
[48] ts 325 - 326.
In cross examination, Mr McKie agreed that he would not normally sign a document not knowing what it was he was being asked to sign, but said that in the course of a general conversation with other committee members in the South Perth office, he signed the document which he had not read.[49]
[49] ts 333.
In summary, the evidence of the witnesses regarding the signing of the document now described as the Circular Resolution is generally vague about how and when the document was signed, and, in particular, inconsistent on when it was signed.
On the evidence, and in particular absent the original which would enable a finding with some confidence about whether the signature pages were part of or attached to the page containing the text of the resolution, I am not satisfied about the circumstances in which it came to be signed.

The validity of a circular resolution

I would, in any event, not accept the Circular Resolution is legally effective.
As a result, it is unnecessary to resolve concerns about the wording of the document which is patently misleading in stating that matters, including terminating the appointment of ISPL, were resolved at a meeting of the Advisory Committee on 30 October 2018. That statement is now accepted to be false.
The plaintiffs submitted that the business of the Advisory Committee can be transacted other than at meetings of the committee. Specifically, they submitted that sub-cl 5.5 is in a separate clause of the Trust Deed, and does not require the decision to remove a Trustee be made at a meeting of the Advisory Committee. Sub-clause 9.9 provides for one means by which the Advisory Committee could remove a Trustee, by a meeting convened by a member, but does not exclude the Advisory Committee making a decision made by other means.
The Trust Deed does not expressly require the decisions of the Advisory Committee to be made at a meeting. Nor does it expressly permit the committee to decide by circular resolution without a meeting. Whether the Advisory Committee can make a decision under sub-cl 5.5 without a meeting of members is a question of construction of the Trust Deed as a whole.
The court was referred to the decision of Edelman J in Northwest Capital Management v Westate Capital Ltd, where his Honour found that a clause in a trust deed for a unit trust which permitted the removal of the trustee 'by a majority vote of the Members at any time and from time to time' permitted the removal of the trustee by circulating resolution.[50] His Honour arrived at that conclusion on the construction of the trust deed as a whole. Importantly, his Honour had regard to several factors. The relevant clause did not mention the requirement for a meeting and was 'separate and independent' from the clause concerned with meetings of members and where there was nothing that created a relationship between the two clauses. The clause used the word 'vote', which is commonly used in connection with voting in the absence of a meeting, and which was used elsewhere in the trust deed in connection with voting in the absence of a meeting. The trust deed defined resolution to include votes cast in the absence of a meeting 'where the law allows a resolution in writing signed by members holding the required majority of Units in the Trust', and where other provisions of the trust deed contemplated the members acting other than at meetings. A meeting of members could only be convened by the trustee. Finally, the construction was inconsistent with the history and purpose of the clause.
[50] Northwest Capital Management v Westate Capital Ltd [2012] WASC 121 [186] - [204]; (2012) 264 FLR 424.
In summary, Edelman J approached the question by reference to the construction of the trust deed, searching for the 'objectively manifested meaning of the words used', in the context of the trust deed as a whole.[51]
[51] Northwest Capital Management v Westate Capital Ltd [190] - [191].
In my opinion, on the proper construction of the Njamal People's Trust Deed, the power in sub-cl 5.5 is intended to be exercised at a meeting of the Advisory Committee, convened under sub-cl 9.9. That conclusion is based on the following factors.
First, there is no provision in the Trust Deed for how the Advisory Committee is to exercise its functions under the Trust Deed other than at a meeting. The Trust Deed constitutes the Advisory Committee as a body to advise the Trustee, 'unless otherwise agreed, at regular meetings convened for that purpose', with arrangements for meetings to be agreed.[52] It specifically provides for the Trustee to be able to consult with members individually, other than at a meeting, in situations of urgency. The only provision for the Advisory Committee to provide recommendations or advice in writing is after a meeting.[53]
[52] Sub-cl 9.6(a).
[53] Sub-cl 9.6(c) - (e).
Second, a meeting to appoint, remove or replace a Trustee can be convened by any Advisory Committee member without reference to the Trustee.
Third, sub-cl 9.9 provides specifically for the convening of a meeting to appoint or to remove and replace a Trustee 'as set out in sub-clauses 5.4 and 5.5' and provides, although inadequately, for the method of organising a meeting.
Fourth, there is no provision in the Trust Deed for a resolution in writing in any circumstances.
Fifth, the Advisory Committee is a representative body, constituted to ensure fair representation of the families making up the Njamal People.[54] A meeting permits discussion and debate, where the represented family groups have the opportunity to put their positions, and hear and consider competing positions.
[54] Sub-cl 9.8.
I take into account that sub-cl 5.5 does not expressly require the decision to remove a Trustee to be made at a meeting pursuant to sub-cl 9.9. But the provisions of the Trust Deed, read together, sufficiently disclose the intention that a decision of the Advisory Committee to remove a Trustee must be made at a meeting convened pursuant to that clause.
Rule 3(vii) of the Rules made in 2014 provides that a resolution may be passed without a meeting if three quarters of members sign a statement in favour of the resolution, and that document 'may in turn then be forwarded to the Trustee for consideration'. The Rule, on its face, is for the purpose of advising the Trustee and does not apply to a meeting for removing the Trustee. In any event, the Rule is inconsistent with the Trust Deed. Such a provision in a subordinate instrument cannot confer a power inconsistent with the Deed pursuant to which it is made.

The meeting of 29 November 2018

The membership of the Advisory Committee following the community meeting of 22 October 2018, and therefore at the time of the circular resolution, and the meeting of 29 November 2018, is agreed on the pleadings. The Advisory Committee had 14 members and accordingly required 11 members to constitute a 75% majority. The plaintiff's case is that, at the meeting of 29 November 2018, it achieved that majority.
Evidence about the meeting said to have taken place on 29 November 2018 was given by four members of the Advisory Committee, Terry Wilson, Dean Snook, Aileen Mitchell, and Wayne McKie. Evidence was also given by Travis McPhee, who was not a member of the advisory committee but believed he should have been. Travis McPhee said he was present throughout and participated in the meeting.
The plaintiff pleads that the meeting was attended by 14 members of the Advisory Committee, although in particulars it names only 13: in person, Terry Wilson, Gavin Mitchell, Willie Jumbo, Wayne McKie, Terry Rustus, Dean Snook, Troy Eaton, Thomas Geary, Kathleen McKenna, Aileen Mitchell and Kevin Allen and by telephone, Lloyd Williams and Marty Coppin.[55] The plaintiffs' evidence was that Tony Taylor also attended in person.[56] And, despite Lloyd Williams attending by telephone, Ian Taylor attended as his proxy.
[55] Statement of claim [20].
[56] Compare the affidavit of Mr Wilson where he deposed that Tony Taylor attended the meeting, then said to have taken place on 30 October 2018, by telephone.
The plaintiffs adduced no evidence that written notice was given of the meeting and the resolutions to be considered at it. Mr Wilson said that he could not remember any notice being sent of the meeting, but was told about it by 'mainly phone calls, and things like that'.[57] He could recall being told about the meeting by Troy Millen and Troy Eaton.
[57] ts 59.
Mr Snook was asked about organising the meeting, and the notice given to members. He said he contacted them by phone.[58] Mr Snook was asked what, in substance, he said to each member and replied:
Just that we needed to get together to discuss what Troy Eaton was letting us know what's going on with Indigenous Service and it - we needed to get rid of them. And it - we all needed to be, you know, needed to be heard with the whole TAC members.[59]
[58] ts 134.
[59] ts 134.
If the evidence of the plaintiffs is accepted, however, all members of the advisory committee attended, either in person or by telephone.
In his evidence at trial, Mr Wilson named the members of the Advisory Committee present at the meeting. He said that they had Lloyd Williams on the phone 'for a little while', and Graham Coppin answered the phone but said he would leave everything to Ian Taylor and would go on whatever Ian Taylor would say.[60]
[60] ts 63.
Mr Wilson said that both Damian Molony and Philip Lafferty of Armeli & Molony were present throughout the meeting.[61] He referred also to the presence of Troy Millen and Don Patterson.[62] Mr Wilson said that Troy Millen joined in the discussion and was 'giving us what he could do'.[63]
[61] ts 99.
[62] ts 61, 63, 96.
[63] ts 96.
Mr Snook also named the other members of the Advisory Committee who were present at the meeting and said that Ian Taylor and Travis McPhee, who were not members, were also there.[64] He said that the meeting went on for about two hours,[65] or three and a half hours.[66] In his examination in chief, Mr Snook said that before the vote was taken there was a phone call to Lloyd Williams and Marty Coppin.[67] In cross examination, he said they were phoned on mobile phones at the beginning of the meeting.[68]
[64] ts 137.
[65] ts 137.
[66] ts 158.
[67] ts 138.
[68] ts 161.
Mr Snook said that Mr Molony was not present during the meeting but came in after they had finished the meeting and discussed what had been agreed on.[69]
[69] ts 159, 160.
Travis McPhee said he attended a meeting at Armeli & Molony, he believed in November 2018.[70] He said that, in the meeting, Dean Snook was on the phone to Rod Carter until Gavin Mitchell objected to it.[71]
[70] ts 182.
[71] ts 185.
Mr McPhee said that those present in the meeting had a general discussion for an hour or two.[72] In cross examination, he said the meeting lasted a good four or five hours.[73]
[72] ts 184.
[73] ts 189.
Mr McPhee said there were two people who did not want to see ISPL removed, Aileen Mitchell and Gavin Mitchell.[74] Mr McPhee said he participated in the meeting and expressed his views. He described his participation by saying he was one of the people 'putting pressure' on Gavin Mitchell.[75] He said that Ian Taylor also wanted ISPL gone.[76]
[74] ts 185.
[75] ts 186.
[76] ts 186.
Mr McPhee recalled that in the vote Lloyd Williams said 'he had had enough - he wanted out'; and Graham Coppin said he would go with whatever Ian Taylor (who was present but not a member of the Advisory Committee) decided.[77]
[77] ts 187.
Mr McPhee signed the circular resolution and his recollection was that it was handed around and he saw everybody else sign it at the meeting.[78] He was asked to sign it by the Advisory Committee members and Mr Molony.[79] His signature is not dated. The only signature dated 29 November 2018 is that of Gavin Mitchell.
[78] ts 191, 193.
[79] ts 187.
Mr McPhee said that after the meeting they called Mr Molony in to make sure the correct process was followed and that there could be no argument about the decision.[80]
[80] ts 188.
Mr Wilson said that he saw Ms Bates at the lawyers' office, but outside the meeting room, and Mr White was there, on the street.[81] Mr Snook also said that he saw Ms Bates at the meeting.[82] Mr McPhee said that when he arrived he saw Mr White in the foyer (at street level).[83] That evidence is significant because Ms Bates and Mr White both say that they were not there that day, and (without objection) Ms Bates produced documents in her evidence to show where they were.
[81] ts 62.
[82] ts 136.
[83] ts 182.
Aileen Mitchell is also a member of the Advisory Committee, first elected in 2018. She was called on behalf of ISPL.
Ms Mitchell could recall attending a meeting of the Advisory Committee at a lawyer's office in Perth, but did not recall attending a meeting on 29 November 2018. She said that every year on 29 November her family gathered in Carnarvon because it was a celebration for her nanna's birthday, and she would remember if the meeting was on that day.[84]
[84] ts 203.
Ms Mitchell confirmed her signature on the signature page said to be part of the circular resolution, but did not know how her signature came to be on it.[85] She said she had not seen the page containing the resolution before.[86] She denied signing it knowing what it contained.
[85] ts 196 - 197.
[86] ts 197.
Ms Mitchell did not remember any voting on a resolution.[87] She said that even if the chair asked for a vote, there were not enough people to make a vote.[88]
[87] ts 197.
[88] ts 202.
Ms Mitchell professed to having a poor recollection, referring particularly to being newly appointed to the Advisory Committee and feeling pressured.
The last of the witnesses to give evidence about the meeting was Wayne McKie.
Mr McKie said he attended a meeting of the Advisory Committee at the offices of Armeli & Molony, but he believed it was on 9 March 2019.[89] He said he had been to those offices only once.[90] Not all members of the Advisory Committee were present at the meeting he attended - he believed there were 12.[91] He recalled a female lawyer being present, perhaps Ms Schlink, assisting Dean Snook.[92] Mr McKie could remember seeing Ms Bates and Mr White in the lobby area of the building, and also some of the elders.[93]
[89] ts 326.
[90] ts 334.
[91] ts 327.
[92] ts 327.
[93] ts 328.
The business at the meeting was purely to remove ISPL as Trustee.[94] Mr McKie could recall discussion about whether the Advisory Committee should remove ISPL. He said that he did not think that the meeting actually voted on whether to remove ISPL.[95]
[94] ts 328.
[95] ts 328.
Mr McKie could recall another meeting shortly after that one, at the Njamal offices at Melville Parade, South Perth. A majority of the advisory committee attended and Ms Schlink was there.[96] Another lawyer, Mr Sheiner, also attended.[97] The vote on that occasion was eight for and six against removing ISPL.
[96] ts 328.
[97] ts 329.
Ms Bates and Mr White gave evidence about their movements on 29 November 2018. Each said that they were not present at the offices of Armeli & Molony and were in the office or at lunch in South Perth follow on. They said that they were present at the Armeli & Molony offices at a later meeting in March 2019.
I am conscious of the problems that might attend accepting the evidence of witnesses who are apparently more polished in the witness box. Nevertheless, I accept the evidence of Ms Bates and Mr White that they were not at the offices of Armeli & Molony on 29 November 2019. The material adduced by Ms Bates convinces me that it is more likely that they were in South Perth on the day. That fact is not, of course, conclusive, but it does cast doubt on the reliability of the recollection of the plaintiffs' witnesses.
I also take into account the following:
(1)Armeli & Molony were then the solicitors acting for members of the Advisory Committee. The only letter from the solicitors which refers to a resolution to remove ISPL as Trustee is dated 5 November 2018, and refers to a meeting of 30 October 2018. It is not now in dispute that the 'meeting' on 30 October 2018 was between three members of the Advisory Committee, one of whom (Ms Mitchell) described it simply as a breakfast.
(2)Following the meeting on 29 November 2018, Armeli & Molony wrote to the solicitors then acting for ISPL on 30 November and requested ISPL to convene a meeting with the Advisory Committee to discuss urgent matters relevant to the Trust.[98] The letter was signed by Mr Molony and Mr Lafferty. Mr Wilson's evidence was that both of them were present throughout the meeting, but I am not satisfied that his evidence on that point was reliable.[99] Mr Snook gave evidence that the content of the letter was what he told the solicitors straight after the meeting finished.[100] Mr McPhee said that Mr Molony was called into the meeting at the close to make sure that everything was covered, and that someone from the Advisory Committee explained what had been agreed.[101] The letter does not refer to any resolution at that meeting to remove ISPL, but assumes the prior removal of ISPL by the disputed circulating resolution.
(3)In February 2019, members of the Advisory Committee gave notice of further meetings for the purpose of passing the resolutions which, on the plaintiffs' case, had been passed unanimously in November 2018. The plaintiffs' explanation is that two members had claimed that the meeting was invalid. The Advisory Committee however, had equal representation. The explanation is not convincing.
[98] Ex 1.51.
[99] ts 99.
[100] ts 163.
[101] ts 191.
Counsel for ISPL submitted that the court should draw an inference from the failure of the plaintiffs to call Mr Molony was that his evidence could not have assisted their case. The letter from Armeli Molony of 30 November 2018 refers to sub-cl 5.5 of the Trust Deed but does not otherwise refer to the meeting of 29 November 2018 resolving to remove ISPL as Trustee. The possible ambiguity or uncertainty of meaning could have been resolved by calling the author.

There is another aspect of what was said in Jones v Dunkelwhich, in my opinion, is particularly important in this case. Where the plaintiff seeks to establish a conclusion, the facts proved must form a reasonable basis for a definite conclusion, affirmatively drawn.[102]
[102] Jones v Dunkel [1959] HCA 8; (1959) 10 CLR 298, 305.
The evidence about the meeting on 29 November 2018, at which the plaintiffs say the resolution to remove ISPL was passed, was inconsistent. The plaintiffs adduced no evidence of written notice given to all Advisory Committee members of the meeting, its date and location, and the resolutions to be put. The evidence of the notice given orally does not enable a finding of when notice was given and what members were told. No minutes were taken at the meeting despite the plaintiffs' evidence that they realised the importance of the step they were taking and had legal advice to ensure that everything was done properly. Had there been minutes, they would have constituted prima facie evidence that the meeting occurred and transacted the business recorded. The onus would clearly have been on ISPL to disprove what was recorded. In the absence of minutes, the plaintiffs must prove that the meeting was held as alleged and the resolutions duly passed.
Those facts must be proved to the reasonable satisfaction of the court; that is, the court 'must feel an actual persuasion of [their] occurrence or existence'.[103] In the present case, I am satisfied (and it is no longer disputed) that there was a meeting on 29 November 2019. The letter sent by Mr Molony the following day is otherwise inexplicable. But I am not persuaded that it passed the resolutions alleged.
[103] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 712, 305.
The evidence also raises questions about the validity of the meeting if it did occur as described by the plaintiffs' witnesses.
First, the plaintiffs' pleaded case is that Ian Taylor voted as the proxy for Lloyd Williams. The Trust Deed does not allow for proxy voting.
Second, the evidence about the telephone attendance of Mr Coppin and Mr Williams was as follows:
(1)Mr Wilson said that they had Lloyd Williams on the phone for a little while. He said that Graham Coppin answered the phone and said he wanted to leave everything to Ian Taylor.[104]
(2)Mr Snook said he called Mr Williams and Ms Mitchell called Mr Coppin, both by mobile phone, 'just as we were going to start the meeting'.[105]
(3)Mr McPhee said that Mr Williams was on the phone and said 'he had enough - he wanted out'.[106] Mr Coppin said he would go with whatever the group, or especially Ian Taylor, decided.[107]
[104] ts 63.
[105] ts 161.
[106] ts 186 - 187.
[107] ts 187.
I am not satisfied that Mr Williams and Mr Coppin can properly be regarded as present at the meeting and voting.
Ian Taylor was not a member of the Advisory Committee and should not have participated in the deliberation and voting process in the way described. In effect, he appears to have been treated as the proxy of Mr Williams, despite Mr Williams attending by telephone, and to have decided the vote for Mr Coppin.
Mr McPhee's evidence was that both he and Ian Taylor were putting pressure on Gavin Mitchell to change his position.
In Tayeh v The Commonwealth,[108] Jagot J referred with apparent approval to the following summary of principle which, in my opinion, accurately sets out the law which I should apply:
(a)there is no general rule that the mere presence of an ineligible person invalidates either the whole meeting or a particular resolution at the meeting: Lynch v Hodges (1963) 4 FLR 348 [(Lynch)]; Williams v The Queen [1977] Tas SR (NC) 135; McGovern v Ku-Ring-Gai Council [[2008] NSWCA 209]; (2008) [72] NSWLR 504 at [242] (Campbell JA); or even that the participation of an ineligible person by voting on a motion invalidates the resolution – each case must be considered on its facts: Steuart v Oliver (No 2) (1971) 18 FLR 83[, 84 (Steuart)];
(b)the presence of so many unqualified persons in a meeting may be such that a court would not regard it as a meeting of the particular body: Steuart [at 84]; Barter v Maher (1972) 21 FLR 10 at [25];
(c)if a non-qualified person is relied on to constitute a quorum then there is no quorum and the proceedings of the meeting are ineffectual: Steuart [at 84];
(d)participation of non-members in a general meeting of a body ought to be limited, so that they are unable to exercise influence in its conduct which, if excessive, may invalidate the meeting: Clark v Framingham Aboriginal Trust [2014] VSC 367 at [140]; so that, a resolution has been held invalid where:
(i)an ineligible person, who had a personal interest in a motion, actively participated in its adoption by moving and voting in favour of it, albeit that his vote was not vital to its passage: Lynch;
(ii)the ineligible person moved the motion, played a dominating part in the deliberations and made a materially false statement to the meeting concerning the motion: Allen v Townsend [1977] FCA 10; (1977) 31 FLR 431 at 482.
[108] Tayeh v Commonwealth [2020] FCA 1323 [127].
The intention disclosed in the Trust Deed is that a Trustee may be removed by the meeting of the Advisory Committee, constituted by those persons elected by the Njamal community. The evidence adduced by the plaintiffs is that Ian Taylor and Travis McPhee, who were not elected members of the committee, both participated and exercised a clear influence on the outcome. In my opinion, the degree of participation of Ian Taylor and Travis McPhee, as described by the plaintiffs' witnesses, in particular by putting pressure on an elected member, was sufficient to invalidate the meeting.

The meeting of 1 April 2019

Ms Schlink acted as the chair of the meeting on 1 April 2019, apparently by invitation of some of the members through Ms Westerman.
Ms Schlink said that she had a copy of the Trust Deed and the Rules.[109] If the Rules applied to that meeting, the chair was required to be a member of the Advisory Committee.
[109] ts 236.
Ms Schlink prepared a document which has been referred to as the minutes of the meeting. The minutes are signed by Ms Schlink, as chairperson. But there is no evidence that they were provided to members other than Ms Westerman, or that any member other than Ms Westerman saw them before Ms Schlink signed them. The minutes cannot be regarded as formal minutes of the meeting. While I will refer to the 'minutes', that is simply a reference to Ms Schlink's record of the meeting.
The terms of the first resolution relating to the removal of ISPL are as follows:
That the appointment of [ISPL] as trustee of The Njamal People's Trust which was established on 29 October 2003 be terminated pursuant to clause 5.5 of The Njamal People's Trust Deed effective upon the date this resolution is passed by a three quarter majority decision of the current [Advisory Committee] members. Also that the meeting notifications from 1 March 2019 and further correspondence and meetings held by [Advisory Committee] Members enables this meeting to be ratified as legal to move the circular resolutions being put forward today.
The evidence at trial did not explain what was meant by the last sentence, including the reference to circular resolutions.
At the time of the meeting on 1 April 2019, or at least at the time resolutions were put, the membership of the Advisory Committee was in question.
First, the Advisory Committee apparently had already resolved to remove Lloyd Williams, and resolved on 1 April to remove Marty Coppin as members for non-attendance at meetings.
Second, the minutes record, 'As was previously advised both Wayne McKie and Gavin Mitchell are conflicted and therefore were unable to participate in the vote'.[110] The Advisory Committee was recorded as being able, on the basis of information provided to them by Ms Schlink, to make an informed decision that neither Mr McKie nor Mr Mitchell could participate in the voting process as a consequence of their employment with ISPL. Neither was at the meeting, for other reasons.
[110] Ex 1.70.
Third, the Advisory Committee resolved to 'reinstate' Ms Westerman as a member of the committee. Although there was no further resolution to that effect, the minutes record that the Advisory Committee was to write to an elected member, Kevin Allen, and advise him that he had been removed as a consequence of Ms Westerman's reinstatement.
Fourth, the evidence is that Troy Eaton, who was recorded as attending by phone, was only on the phone to the meeting for a short time. The meeting proceeded for more than two hours, from 11:48am to 1:00pm; and then from 3:02pm to 4:02pm.
The minutes state that the resolutions relating to the removal of ISPL would be considered by the 10 members who were able to participate. By proceeding in that way, the vote proceeded upon two fundamental errors.
First, Ms Westerman was not a member of the Advisory Committee and was not entitled to vote.
Second, the purported removal of Lloyd Williams and Marty Coppin was not effective.
The resolution in relation to Mr Coppin referred to non-attendance by Mr Coppin at three meetings on consecutive days, 8, 9 and 10 March 2019, 'despite the fact that he was advised of these meetings well in advance…' Notice of the meeting of 8 March 2019 was given on 20 February 2019.[111] The evidence of Mr Snook was that the meeting of 8 March was adjourned to the following day, and then again adjourned for a day because not all members of the Advisory Committee were present. Accepting that the meeting of 8 March 2019 was validly convened, there was no proper notice to members of the following two meetings (if they were separate meetings and not a continuation of the same meeting).
[111] Ex 1.54.
In any event, on the proper construction of the Trust Deed, the Advisory Committee had no power to remove a member for non-attendance. The only mechanism prescribed for removal of a member is by resignation or by the election of a new committee at the next community meeting. Even if the Rules of 28 July 2014 applied to the meeting, those Rules providing for the removal of a member by the Advisory Committee are inconsistent with the Trust Deed.
Sub-clause 5.5 of the Trust Deed provides for the removal of the Trustee 'by a three quarter majority decision of all Advisory Committee members.' It does not refer to members present, or members entitled to vote, but to 'all Advisory Committee members'. In short, the resolution to terminate the appointment of IPSL required the votes of 11 members.
If the Advisory Committee comprised only 12 members, the required majority would be nine. And even on that basis, the meeting did not achieve the required majority.
The participation of Ms Westerman was wrong. Assuming that Ms Westerman had been improperly removed from the Advisory Committee at some earlier time, her term as a member ceased on the next election of an Advisory Committee at a meeting of the community. She was not a member of the Advisory Committee elected at the most recent community meeting of the Njamal People. Other than to replace a member who has resigned, election at a community meeting is the only means under the Trust Deed for a person to be appointed to the Advisory Committee. Ms Westerman's purported 'reinstatement' to the Advisory Committee, and the consequent removal of an elected member, was not legally effective.
It is not necessary for me to determine the effect of Ms Westerman's participation in the meeting on the validity of the meeting. Her vote cannot be counted.
On the evidence, I am satisfied that Troy Eaton did not meet with the other Advisory Committee members and I am not satisfied that he voted.
Mr Wilson's evidence was that Mr Eaton was contacted by telephone and said 'something like' he was at the courthouse with his son that day, and he had to go. He agreed that Mr Eaton did not participate in the meeting for more than a few minutes.[112]
[112] ts 119.
Mr Snook said that he was the one who telephoned Mr Eaton and that Mr Eaton told him he was at the Karratha courthouse with one of his children and he declined to participate in the meeting because he was busy. Mr Snook agreed that the phone call was two or three minutes and that Mr Eaton did not vote.[113]
[113] ts 169 - 170.
Ms Schlink was asked about Mr Eaton's participation. She agreed that someone telephoned him, but could not recall what was said, or for how long he was on the phone. [114]
[114] ts 227 - 228.
The high point of the plaintiffs' case was the evidence of Ms Westerman. She could not say for how long Mr Eaton was on the phone, but said it was 'for quite a short while'.[115] Later in Ms Westerman's evidence, the following evidence was given:
[115] ts 250.
Okay. Do you recall somebody telephoning Mr Eaton at some point towards the start of the meeting?---Yes.
And Mr Eaton saying he was at the Karratha Courthouse with one of his children?---Yes, I do now. Yes.
And he declined to participate?---He was at the Karratha Courthouse to start with. We got him back later and the resolutions were read out to him at some point. And, obviously, because he was in the Karratha Courthouse, that was very difficult to - for him to attend the whole meeting. But his response was to agree with the resolutions.[116]
…
… think you said he was on the phone for about 20 minutes; is that right?---Maybe throughout different points of the day. I'm not sure if he just was on the phone just once. I think it was several times that we had him on the phone in between things, so - - -
Well, you recall him being rung several times, do you?---I recall him being rung at least, you know, once or twice. Probably twice, yes.
Probably twice?---Because, like I said, he - well, he - of course, we kept ringing him because we were trying to get hold of him in between court breaks. So that's how it was working out on the day. It wasn't, like, you know - it wasn't, like, just one phone call, we can't get hold of him. We kept ringing him.
And - - -?---And at times, we got hold of him and times we didn't.
- - - was it just fortunate that the resolutions were voted on during one of his court breaks?---I can't say for sure.
You don't recall him in a conversation of two or three minutes declining to participate and being left alone?---He - in the end, I guess that's what he did but he did agree with the resolutions. In the end he sort of said, look, I've got all this stuff going on.[117]
[116] ts 276.
[117] ts 277.
On that evidence I am not satisfied that Mr Eaton was in the meeting with the other members of the Advisory Committee, and I am not satisfied that he voted at the meeting on the resolution to remove the Trustee. The majority in favour of the removal of the Trustee was, at most, eight and the vote failed.

Membership of the Advisory Committee

There are two issues: first, did the failure of the community meetings in 2019 and 2020 to proceed to elect an Advisory Committee result in the terms of the existing committee members expiring with no replacement; second, did ISPL act in breach of trust in failing to ensure that elections were conducted on each occasion.
The first question is one of construction of the Trust Deed. Decisions on the construction of other, differently worded, deeds to not assist except to the extent they identify relevant principles to be applied in the construction of this instrument.
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 Members
The 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.
In each of the years in question, the agenda included the 'election' or 'review' of Advisory Committee members. On the evidence, I'm not satisfied that anything more was required in those particular years. The failure of the election to proceed in 2019 was explained. There is no evidence as to why there was no election the following year.
There is no reason to doubt, on the evidence adduced at this trial, that the Trustee will convene an annual meeting of the Njamal people in 2021 as required by the Trust Deed. No basis in the evidence has been shown for the court to make the proposed order requiring the participation of the Electoral Commission in any election at the 2021 Community Meeting. It is, accordingly, not necessary for me to consider whether such an order is within power.

Conclusion

The plaintiff's application will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
7 OCTOBER 2021