Wintawari Guruma Aboriginal Corporation RNTBC v Stevens
[2016] WASC 115
•8 APRIL 2016
WINTAWARI GURUMA ABORIGINAL CORPORATION RNTBC -v- STEVENS [2016] WASC 115
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 115 | |
| Case No: | CIV:2382/2015 | 10 MARCH 2016 | |
| Coram: | REGISTRAR C BOYLE | 8/04/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | WINTAWARI GURUMA ABORIGINAL CORPORATION RNTBC SUSAN SMITH TANIA STEVENS |
Catchwords: | Account Pleadings Whether pleadings admit defendant liable to account |
Legislation: | Nil |
Case References: | Hancock v Rinehart [2015] NSWSC 646 Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 Re Ellis; Ellis v Ellis [2015] WASC 77 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
SUSAN SMITH
Second Plaintiff
AND
TANIA STEVENS
Defendant
Catchwords:
Account - Pleadings - Whether pleadings admit defendant liable to account
Legislation:
Nil
Result:
Application refused
Category: B
Representation:
Counsel:
First Plaintiff : Mr R I Viner QC
Second Plaintiff : Mr R I Viner QC
Defendant : Mr S Daley
Solicitors:
First Plaintiff : Castledine Gregory
Second Plaintiff : Castledine Gregory
Defendant : Shayne Daley & Associates
Case(s) referred to in judgment(s):
Hancock v Rinehart [2015] NSWSC 646
Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365
Re Ellis; Ellis v Ellis [2015] WASC 77
- REGISTRAR C BOYLE:
The plaintiff seeks an interlocutory order for account
1 In this action the substantive relief the plaintiffs seek is that the defendant account to them for money that the plaintiffs plead the defendant has received on trust for them.
2 A statement of claim is indorsed on the writ and the defendant has filed a defence.
3 The plaintiffs now apply for an interlocutory order for an account. The question is whether the state of the pleadings is such that on the admitted facts the plaintiffs are incontrovertibly entitled to the account they seek.
The power to make an interlocutory order for account
4 The application is expressed to be brought under O 45 r 1 of the Rules of the Supreme Court 1971 (WA). The statement of claim claims an account, so the jurisdictional basis for an order for account has been enlivened. Order 45 r 2, and indeed the text of O 45 r 1(1) itself, make it clear that an application may be made at any time after an appearance.
5 The remedy of account is flexible. An account may be ordered where it is shown that one party (the accounting party) has received funds in circumstances in which for whatever reason, the accounting party is liable to account for another. For present purposes, it is sufficient to refer to the following passage from Hancock v Rinehart [2015] NSWSC 646:
338 The plaintiffs seek orders for the taking of an account of the Trust, in common form. A plaintiff who seeks the remedy of an account must prove that the defendant is an accounting party, and that the plaintiff is entitled to some (uncertain) sum from the defendant [Juul v Northey [2010] NSWCA 211, [185]; Mulherin v Quinn Villages Pty Ltd [2007] QSC 231; Re Sharpe (unreported, FCA, Drummond J, 11 December 1992), [5]; Meagher, Gummow & Lehane, Equity Doctrines and Remedies 4th ed (2002) LexisNexis (at [25-025]), citing Doss v Doss (1843) 3 Moo Ind App 175, 196-7; 18 ER 464, 472 (Dr Lushington)].
339 In the relation of trustee and beneficiary, the trustee is an accounting party. It is a fundamental obligation of a trustee to keep and render to the beneficiaries a full and candid record of their stewardship, including all appropriate financial accounts [Burrows v Walls (1855) 5 De G M & G 233; 43 ER 859, 866 (Cranworth LC); Low v Bouverie [1891] 3 Ch 82, 99 (Lindley LJ); Armitage v Nourse [1998] Ch 241, 261 (Millett LJ); Waterhouse v Waterhouse (1998) 46 NSWLR 449, 494 (Windeyer J)]. That duty to account encompasses a duty to keep records, a duty to report to the beneficiaries and/or the court, and a duty to pay amounts the trustee is obliged to pay to the beneficiaries [Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26, [42]].
340 Except where an account on the wilful default basis is sought - and it is not sought here - a beneficiary's entitlement to an account does not depend on alleging or establishing any default or breach of trust. As Powell J (as he then was) put it in Spellson v George (1987) 11 NSWLR 300 (at 315-316):
'This being the essential nature of the position of a trustee, and the liability to account being an essential ingredient in it, it seems to me that it is inescapable that the cestuis que trust, or any one of the cestuis que trust, have, or has, a correlative right to approach the Court for its assistance in enforcing the personal obligation of the trustee, and, in particular, in enforcing the trustee's obligation to account. Since that right is, as it seems to me, a fundamental right of the cestuis que trust, or of a cestui que trust, it seems to me that it is not correct to say that its enforcement by the court is dependent upon the cestuis que trust, or the cestui que trust in question, first raising an allegation, or establishing a prima facie case, of fraud or some other like breach of trust. On the contrary, so it seems to me, where the court's assistance in enforcing the trustee's obligation to account is invoked, the court should be concerned with only two questions, they being, first, whether the plaintiffs are, or the plaintiff is one of the, cestuis que trust, and, second, whether the defendant trustee has failed to observe his obligation to account.'
341 The only defences to a claim for accounts in common form, where liability to account is established, are (1) release, (2) that the defendant has already rendered proper accounts and the amount due has been paid, or (3) settled accounts [Dawson v Dawson (1737) 1 Atk 1; 26 ER 1; Young, Croft and Smith, On Equity, [16.1340]].
6 Again for present purposes, it is not necessary to set out the practice on the taking of accounts. I rely upon and apply the explanation of the nature of the remedy of account set out in the reasons of EM Heenan J in Re Ellis; Ellis v Ellis [2015] WASC 77 at [80] to [95]. The nature of the remedy must inform the exercise of a discretion whether to order it.
7 If on the basis of admitted facts the plaintiffs are entitled to an order that the defendant account, then there are obvious advantages to making such orders on an interlocutory application, saving all parties the delay and expense of a trial. The disposition of this application therefore turns upon an examination of the pleadings.
What is admitted and what is not?
8 Paragraphs 1 to 6 of the statement of claim are admitted by [1] of the defence. The admitted facts may be summarised as follows.
9 The first plaintiff is an aboriginal corporation. As a result of orders in the Federal Court, it holds a determined native title as the registered native title body corporate in an identified Determination Area in trust for the Eastern Guruma People: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365.
10 The second plaintiff is a member of the Eastern Guruma People and is therefore, by force of the determination in the native title proceedings, taken at all times to have been a common law holder of the native title rights and interests in the Determination Area.
11 The defendant is the trustee of the Windiwarri1 Cultural Trust.
12 Within the Determination Area is an area known as the White Quartz Area. At the time of the native title claim and the determination that was an area in relation to which the Eastern Guruma People were the common law holders of the native title rights and interests in that area.
13 Paragraphs 7 and 8 of the statement of claim are specifically not admitted by [2] of the defence. What those paragraphs plead may be summarised in this way. Over the course of several years, probably from 2006 to 2008, Fortescue Metals Group Limited and a subsidiary used the White Quartz Area for an exploration camp during the construction and development of its Solomon mine. The plaintiffs plead that
in consideration of which use and the native title rights and interests held by the Eastern Guruma People in the White Quartz Area [statement of claim [7]],
- those companies paid certain moneys to the defendant in her capacity as trustee of the Windiwari Cultural Trust. The payments are pleaded to have totalled approximately $95,000.
14 The plaintiffs further plead by [8] of the statement of claim that by reason of the (admitted) facts in [1] to [6] of the statement of claim, and the further (not admitted) facts in [7], the payments made by the FMG companies belonged to the Eastern Guruma People and were received and held by the defendant and the Windiwarri Cultural Trust on trust for the Eastern Guruma People and all of them.
15 The plaintiffs thus essentially say to the defendant: 'You received moneys that can only have been moneys to which we were entitled, because only we as the native title holders were entitled to any payment for the use of the White Quartz Area. Account for them'.
16 On the basis of the facts admitted in [1] to [6] of the statement of claim the plaintiffs would not be entitled to an account. That is because the defendant does not admit [7], which contains the critical averment that the defendant (in whatever capacity) received money for which she must account to the plaintiffs. In other words, unless the putative accounting party admits to having received funds, and having received funds in respect of which a liability to account arises, or the fact of that receipt is established, there can be no order for an account.
Does the defendant admit receipt?
17 The plaintiffs submit that [3] of the defence amounts to an admission by the defendant that she has in fact received funds, so as to make her liable to account. This rather curious pleading needs to be set out in full:
3. Further the Defendant says that at all material times
(a) she delegated responsibility for the establishment of the Windawarri Cultural Trust and all matters concerning the management and operation of the said Trust to her accountants and advisors who she believes were in the years 2006 to 2008 named Pascoe Hudson Broom & Blythe Pty Ltd;
(b) Pascoe Hudson Broom & Blythe Pty Ltd represented to her that they had relevant expertise and skill in the establishment and operation of trusts for aboriginal people in circumstances similar to those in which she found herself and that they would otherwise undertake the matters delegated to them as referred to in subparagraph (a) above on behalf of the proper interests of the Windawarri Cultural Trust as a whole;
(c) she believed that in making and continuing to uphold the delegation referred to in subparagraph (a) above she was, and has been properly acting in the best interests of the Windawarri Cultural Trust as a whole.
19 The plaintiffs submit that, taken in the context of the admitted facts, [3] of the defence may in form be a denial but in substance can only amount to an admission of the pleading in [7] of the statement of claim that the defendant received moneys.
20 There is a certain attractiveness to that submission. It has the virtue of construing a relevant meaning in what is otherwise a pleading of impenetrable obliquity.
21 In effect, the plaintiffs submit that [3] of the defence must amount to a tacit admission because if the defendant did not receive money for the use of the White Quartz Area, there would be no need for any pleading at all. If she did not receive the money, what is the point of pleading the arrangements she made to deal with the affairs of the Windawarri Cultural Trust?
22 The answer to those questions, it seems to me, is that in [3] of the defence the defendant is pleading that she is unable to say (and therefore cannot admit) that she received moneys as the plaintiffs allege. She is unable to say because (rightly or wrongly) she delegated all her responsibilities to accountants.
23 Paragraph 3 of the defence is missing two admissions that would be necessary to entitle the plaintiffs to an account. The first is that the defendant has received money at all. The second is that if she has received money, it was in circumstances that necessarily meant she was obliged to account to the plaintiffs for it. Senior counsel for the plaintiffs submitted that, if the defendant received money as pleaded in [7] of the statement of claim, she must be liable to account. I do not accept that is correct. Native title rights are not necessarily exclusive to one group of people; and different groups may have different rights in respect of the same area of land. The decision in Hughes is in fact an example of that. The content of native title is determined by the particular set of customary laws that it recognises. The pleadings do not exclude the possibility that if the defendant received funds, she may have done so in exchange for the granting (or purported granting) of rights not the property of the plaintiffs.
24 However, I am not in the end persuaded that the words used in [3], even set in the context of the pleadings as a whole, are capable of amounting to the admission that the plaintiffs submit. Paragraph 3 pleads (whether soundly or not) only that the defendant delegated responsibility for the establishment and administration of the Windawarri Cultural Trust to another party on whose expertise and representations she relied.
25 To revert to the analysis touched on earlier of the form of logical structure of [3] of the defence, it appears to me that the full structure might be expressed as,
If (which is not admitted) I had any homework to do, I would have given it to the dog, who told me it would do it.
26 That does not constitute the admission the plaintiffs submit. The application for orders for an account must therefore fail.
27 This application was argued without the pomp of 'special appointment' and panoply of written submissions. That was in the interests of speed and economy. Senior counsel for the plaintiffs, with a deep experience and understanding of native title matters, was able to provide a lucid and economical oral explanation of the nature and effect of the native title determination and the role of a registered native title body corporate, in a way that enlightened a previously uninformed bench. Counsel for the defendant took the unusual but helpful step, rather than filing submissions, of filing a copy of an advice from senior counsel that it was said would form the basis of submissions. It did. For the reasons that appear above, it is not necessary to deal in any detail with the content of that document.
1 The spelling differs of the name of the apical ancestor descent from whom defines the Eastern Guruma People. In Hughes it is spelt Wirntawari; the name of the plaintiff corporation is Wintawari, but the trust of which the defendant is trustee has it Windiwarri. I have used each where appropriate.
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