Federal Court of Australia QGC Pty Ltd v Alberts (No 3) [2022] FCA 141 File number(s): QUD 334 of 2018 Judgment of: RARES J Date of judgment: 3 February 2022 Catchwords: MEETINGS – equity – fraud on a power – voting and conduct of meetings – oppression – where court ordered meeting of family group to agree on nominated entity to receive money on trust for distribution to family members – where person entitled to be present and vote at meeting was excluded from attending remotely without vote of meeting – where majority used voting power to exclude minority from involvement in establishing company and being directors – where constitution of company drafted by majority to exclude others so as to confer benefits on limited group inconsistent with purpose of meeting – whether use of voting power not bona fide or for dominant purpose foreign to the grant Legislation: Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Evidence Act 1995 (Cth) s 136 Native Title Act 1993 (Cth) ss 199B, 203BF, 203BK Cases cited: Gambotto v WCP Ltd (1995) 182 CLR 432 Ngurli Limited v McCann (1953) 90 CLR 425 QGC Pty Limited v Alberts (No 2) [2021] FCA 540 Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 47 Date of hearing: 3 February 2022 Solicitor for Katrina Watson: Mr T G Hauff Counsel for Edna Malone: Mr M McKechnie Solicitor for Edna Malone: Marrawah Law ORDERS QUD 334 of 2018 BETWEEN: QGC PTY LTD Applicant AND: MS NATALIE ALBERTS First Respondent MR KENNETH BONE Second Respondent MS MONA BOOTH (and others named in the Schedule) Third Respondent order made by: RARES J DATE OF ORDER: 3 FEBRUARY 2022 THE COURT ORDERS THAT: 1. It be declared that the meeting of the Williams family held on 2 October 2021 at Murgon and Brisbane was invalid and of no effect for the purposes of the orders made on 28 May 2021 (the 28 May orders). 2. The parties, Queensland South Native Title Services Limited and the National Native Title Tribunal confer with a view to agreeing a timetable for the holding of a new meeting of the Williams family for the purposes of the 28 May orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 On 29 April 2021, I gave reasons to resolve a significant issue as to how the Indigenous Land Use Agreement (the ILUA), registered as QI2010/006 by the Registrar of the National Native Title Tribunal on 22 December 2010 on the Register of Indigenous Land Use Agreements under s 199B of the Native Title Act 1993 (Cth), should be construed in respect of moneys that the applicant, QGC Pty Limited, had agreed to pay for the benefit of the 11 families, as defined in clause 1.1 of the ILUA, that could be found to comprise the "Native Title Party" as also defined in the ILUA: QGC Pty Limited v Alberts (No 2) [2021] FCA 540. I will not repeat the background or other matters set out in those reasons. 2 As a result of suggestions that QGC made at the conclusion of argument on that occasion, Queensland South Native Title Services Limited, the representative body in the area the subject of the ILUA, and the Tribunal agreed to provide assistance to the families to convene meetings to determine whether each wished to incorporate or set up its own nominated entity under annexure 3 of the ILUA. 3 On 28 May 2021, I made orders (the 28 May orders) that noted Queensland South had been requested to perform its functions under s 203BF(1)(a) of the Act to assist the families to reach agreement regarding the establishment of one or more nominated entities. The Tribunal also agreed, pursuant to s 203BK(3), to assist Queensland South in performing those functions. Both Queensland South and the Tribunal have undertaken very substantial steps to give effect to the orders that I made on that occasion as subsequently amended. 4 The parties agreed that each of the families would pursue nine steps set out in the 28 May orders with a view to completing the process of holding meetings of each of the families and then setting up nominated entities agreed at those meetings of the respective 11 families or sub-groups of these. This was so that each entity would be ready to receive money that QGC had paid and proposed to pay into Court for the purposes of enabling the entity to hold and then distribute the funds that have not been able to be distributed after the original nominated entity for all the families went into liquidation, for reasons I explained in QGC (No 2) [2021] FCA 540. 5 The parties on occasion have agreed to orders to vary the timetable for completion of these steps. Importantly, on 27 July 2021, I made the following orders (the 27 July orders) for the purpose of steps 1 to 5 of the 28 May orders: 1. For the purposes of the Family meetings referred to in Step 5 of Annexure A to the orders made on 28 May 2021: a. each Family hold one meeting (the Family meeting) on or before Friday 24 September 2021. Such meeting may include attendance in-person and by remote access; b. Queensland South Native Title Services (QSNTS) make the necessary arrangements for each Family meeting to proceed on any of the dates and times listed in Annexure A below and consult with the Parties regarding meeting arrangements where possible; c. QGC will update the information package provided for in Annexure A Item 2 of the Orders made on 28 May 2021 by the addition of a suggested set of resolutions (the Resolutions) for consideration at each Family meeting and provide electronic copies to the Parties, QSNTS and the NNTT; d. any Parties in possession of contact details for Family members provide names and addresses to QSNTS on or before Thursday 5 August 2021; e. the Parties and QSNTS reach agreement upon a Family membership and contact list on or before Wednesday 11 August 2021; f. QSNTS send notice of the proposed Family meetings and the Resolutions to each Family member identified in order 1(e) above, by post or other means, on or before Wednesday 18 August 2021; g. QSNTS and the National Native Title Tribunal (NNTT) facilitate each Family meeting, including by attending each in-person meeting, where possible. (emphasis added) 6 The 28 May orders had contemplated that step 5 would be completed by 24 July 2021. There were subsequent unforeseen difficulties with complying with the new timetable in the 27 July orders, and I varied it on both 30 August and 20 September 2021 so that on the latter occasion, order 1(a), made on 27 July 2021, would now provide that each family hold its meeting (family meeting) on or before 2 October 2021 and any such meeting could include attendance in person and by remote access. Thus, step 5 would be completed by 2 October 2021. 7 Ken Bone was one of the signatories of the ILUA on behalf of the 11 families. He was a member of the Williams family and Katrina Watson was his daughter. She filed the present interlocutory application to challenge the conduct and outcome of the meeting of the Williams family held on 2 October 2021 at venues in Brisbane and Murgon, which is about six kilometres from Cherbourg (the 2 October meeting). 8 On 9 July 2021, Trevor Hauff, the solicitor acting for Ms Watson and other members of Ken Bone's family had provided Tim Wishart, the principal legal officer of Queensland South, with such contact details as they had as to who should be considered for family membership and be included on the contact list for the purposes of step 3 in the 28 May orders and what became orders 1(d) and (e) in the 27 July orders. That list included Edna Malone but none of the other six persons who attended at the Murgon venue on 2 October 2021. 9 Subsequently, Queensland South prepared and used a different list to communicate with persons for the purpose of securing attendance at the Williams family meeting, that included, apart from Ms Malone, only one of the other persons who attended at Murgon, namely, Josephine Broderick, about whom nothing else is known from the evidence. However, Queensland South did not provide Mr Hauff or Ms Watson's family members with a copy of its list prior to the 2 October meeting or seek agreement as to its composition. The Williams family meeting 10 Queensland South and the Tribunal convened the 2 October meeting of the Williams family that is the subject of the present dispute. Mr Wishart assumed the chair of the meeting, and proceeded to conduct it in that capacity, although, at no point, was there any voting on approving his doing so. There were two venues at which people gathered, one at Murgon, at which Ms Malone and six people associated with her gathered, and another in Brisbane, at which Ms Watson and two people associated with her gathered. Ms Watson explained that the other two persons in Brisbane were Frances, her sister, and Andrew, a grandson of Ken Bone. 11 Ms Watson seeks to have the 2 October meeting declared invalid. 12 At the beginning of the 2 October meeting, Ms Watson informed those present that her uncle, Arnold Murray, who was the brother of Ken Bone, had been taken to hospital unexpectedly and could not attend the meeting. Ms Watson asked if Mr Murray could attend by telephone or video but Mr Wishart, without seeking the views of the meeting, told her that he could not do so because of the way in which other meetings had been conducted. The minutes of the meeting record that Mr Wishart refused the request in keeping with the protocol for these meetings. 13 In the preliminary discussions, Ms Malone asserted that Ken Bone had no right to sign the ILUA. There were discussions as to who was a member of the Williams family. Ms Malone asserted that her great-grandfather, Sid or Syd Williams, who is, for the present purposes, the apical ancestor of all members of the Williams family, had been born in Augathella, and that location was not in the area of the ILUA. 14 Mr Wishart noted that those present at the meeting confirmed that all of the persons present had established their bona fides for the purposes of the meeting. 15 Ms Watson gave evidence that there were several unfortunate events, including "sorry business" (or family mourning as a result of death(s)), that occurred in the period immediately before 2 October 2021 which inhibited her family members who lived in the Cherbourg area and in Brisbane from attending. She said that, ordinarily, they would have been able to attend at Murgon or with her in Brisbane. There is, however, no direct evidence that those persons would have attended but for the unfortunate events or why they could not have given proxies. 16 During the 2 October meeting, Mr Wishart proceeded through the agenda to deal with a set of nine decisions that had been agreed between Queensland South, the Tribunal and the various representatives of different families for the purpose of progressing the process ordered on 28 May 2021 so that the families could establish nominated entities. All 10 persons present at the Williams family meeting voted in favour of decision 3, in the following terms (AB114): That this meeting has been properly notified and that all persons in attendance at this meeting have entered their names on the Meeting Register and are entitled to vote as members of the Williams Family, for the purpose of choosing a Nominated Entity to receive Financial Benefits under the BCJWY and QGC ILUA. 17 The meeting also voted in favour of decisions 4 and 6 to establish a nominated entity for the purposes of receiving and managing benefits under the ILUA, which would be a company incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), whose membership was restricted by its constitution to members of the family, and was established for the purpose of the ILUA (AB115). 18 Significantly, at no point during the meeting was there a resolution as to how the Williams family ought be defined. 19 The next resolutions, for decisions 7 and 9, were to establish the nominated entity by authorising specified family members, first, to arrange for documentation to give effect to decision 5, send that documentation to QGC for review and suggestions, circulate it to the family, assist the family to take any other steps needed to establish the entity and notify the Court at the completion of those steps, and secondly, provide for persons to be directors of the new nominated entity. 20 The minutes of the 2 October meeting recorded, and the evidence confirmed, that Ms Watson suggested that there be two representatives from each of the Brisbane group and the Murgon group. Ms Malone asserted that because Sid Williams, the apical ancestor, had been born outside the ILUA area, the Brisbane group were not descended from Bessie Williams. Ms Malone asserted that Bessie Williams was a child of Sid Williams. But, she asserted, unlike Ms Watson's family, Bessie Williams had been born around the Darling Downs, within the ILUA area. Ms Malone asserted that Ken Bone was a cousin of her mother but that he "… does not come from Bessie Williams". 21 Mr Wishart then pointed out that Ken Bone had signed the ILUA at the time of the authorisation. 22 In their facilitation roles, Mr Wishart and Paulette Dupuy, the general counsel of the Tribunal, relayed to the persons at the two venues the positions of the other side. Ms Dupuy relayed that the Murgon group believed that because of their descent from Bessie Williams, they were justified in deciding Ms Watson and her family members could be members, but not directors of the proposed nominated entity, and that Ms Malone, Ms Broderick and a Matthew Malone would be its directors, being the same three people who were authorised by decision 7 to set up a new company. 23 Mr Wishart noted in the minutes that persons in Brisbane were not happy with this outcome but understood they did not have the numbers at the meeting. Accordingly, the 2 October meeting adopted decisions 7 and 9 so that the three nominated persons from the Murgon group would be the promoters and directors of the proposed nominated entity. The evidence 24 Importantly, the evidence relied on by each side did not disclose any genealogy of the makeup of Williams family members or anything more than an acceptance of a connection to descent from the apical ancestor, Sid Williams, who appears to have been born on 17 September 1879. Ms Malone's evidence had set out, in a series of assertions, that her grandmother, Bessie Williams, had been born in 1908 and had, as she understood it, five other siblings. I limited that evidence without objection under s 136 of the Evidence Act 1995 (Cth) to being evidence of Ms Malone's belief and not evidence of truth of the facts asserted. 25 Ms Malone agreed that she had said at the meeting that Ken Bone had no right to sign the ILUA because Sid Williams had been born in Augathella and had no claim in the ILUA area. However, in her affidavit, she asserted that she had since received legal advice and agreed that all blood descendants of Sid Williams were entitled to membership of the Williams family group. 26 There was a dispute as to whether Ms Malone also said at the meeting that Bessie Williams and her family were Cobble Cobble people. Ms Malone denied that she had made the statement, while Mr Hauff and Ms Watson, who were present, said that she had. It is not necessary for me, at the moment, to resolve that issue. 27 Ms Malone annexed to her affidavit a copy of the proposed constitution or rule book for the Williams Family Aboriginal Corporation which she and her two co-nominees instructed a lawyer to prepare. It is an extraordinary document. First, it provided in r 6.2 that there must be no more than 12 directors, consisting of up to nine elected member directors and three skills-based directors appointed by the board. Next, r 7.1 provides (AB46–47): 7.1 Eligibility for appointment as a Director (a) An individual is eligible for election as a Member Director if the individual is: (i) a Bessie Descendant; (ii) at least 18 years of age; (iii) a member of the Corporation; (iv) completes, or has completed, a Corporate Governance Workshop either: A. in the two years prior to the date of being appointed; or B. within twelve months of being appointed as a Director; and meets all other requirements under this Constitution. (b) An individual is eligible for appointment as a Skills-based Director if the individual: (i) is 18 years of age; (ii) ordinarily resides in Australia; (iii) completes, or has completed, a Corporate Governance Workshop either: A. in the two years prior to the date of being appointed; or B. within twelve months of being appointed as a Director; (iv) they have demonstrated skills and attributes the Board is seeking; and meets all other requirements under this Constitution. (emphasis added) 28 The definitions in Schedule 1 of the constitution provide that: "Williams Apical Ancestor means Sid Williams. Williams Family Aboriginal People means any person who is a descendant of the Williams Apical Ancestor" (AB63). 29 Under r 4.3(c), the directors can delay consideration of membership applications until such time as an applicant supplies additional information, including statutory declarations by him or her and members of the Williams Family Aboriginal People. The board must consider and decide an application within a reasonable period after it is received and can take into account relevant anthropological and other evidence. But r 4.3(g) provides that the board has power to refuse a membership application: "…even if the applicant has applied in writing and complies with all the eligibility requirements" (emphasis added), in which case the board had to notify the applicant, in writing, of the decision and provide reasons (AB32–33). The parties' submissions 30 Ms Watson argued that the 2 October meeting miscarried because there was no agreement under order 1(e) of the 27 July orders upon a family membership and contact list before Queensland South sent out notices for that meeting. She argued that only persons entitled to be present at the meeting and vote could determine, first, who should be in the chair and, secondly, who could be allowed to attend remotely. Accordingly, she contended that however well-meaning Mr Wishart was, he was not authorised by the meeting to deny her request that Mr Murray attend remotely from hospital. She argued that the meeting also miscarried because Mr Murray had been excluded without a vote of the meeting. 31 Ms Malone argued that whatever deficiency may have existed with the calling of the meeting, decision 3 was a complete answer to Ms Watson's case, particularly in light of the earlier discussion in which all 10 people present at the two locations had confirmed that each had established his or her bona fides for that purpose. 32 Ms Malone submitted that any deficiencies that occurred during the meeting, including the inability of Mr Murray to participate, did not affect the outcome or the validity of the decisions recorded in the minutes because the Williams family had met and agreed to set up the new company. Moreover, Ms Malone contended that there was no evidence that any person at Murgon was not entitled to participate in the meeting as a member of the Williams family. 33 Counsel for Ms Malone accepted that the provisions of the constitution conferring powers on members of the family descended from Bessie Williams to the exclusion of the balance of the descendants of Sid Williams as the apical ancestor could not be said to be other than oppressive as I had characterised those provisions in the course of argument, within the meaning of that concept in company law: cf Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 466–468 per Mason ACJ, Wilson, Deane and Dawson JJ. Consideration 34 In QGC (No 2) [2021] FCA 540 at [73], I said: The importance of allowing all of the persons within the definition of "families" to participate in the process for establishment of the nominated entity, as evinced in annexure 3 of the ILUA, cannot be understated. It prevents particular persons who have other powers under the ILUA dominating that process or constituting a company that will be used ultimately to cause money paid by QGC for the benefit of the families to be paid to a narrower class. It is well‑known in the area of native title that, not infrequently, persons obtain positions of power in a claim group, through ILUAs or prescribed bodies corporate, and then misuse that power to siphon off for their own benefit large amounts of money intended for, or to benefit, members of claim groups as a whole. Indeed, one of the issues with the demise of BCJWY was whether such impropriety, in fact, happened in its case. There is some suggestion that there may have been individuals, including ones with no apparent connection to the families or the claim groups, acting in that way, but it is not necessary to make any findings about that possibility in these reasons. (emphasis added) 35 I accept that Queensland South and the Tribunal sought to facilitate the conduct of the 2 October meeting for the Williams family in accordance with the Court's orders and did not intend to depart from them. As Ms Dupuy pointed out in the course of argument, and I accept, the purpose of the 28 May and 27 July orders, providing for lists, was so that an information package could be sent to as many people as possible who might be within the relevant family, but that the lists were not intended to act as a comprehensive definition of persons who were, in fact, members of the families or could attend and vote at the meeting. 36 Nonetheless, there was a failure of the Williams family to obtain agreement as to the family membership and contact list, which I infer was accidental given the volume of work involved in dealing with all 11 families the subject of the ILUA that Mr Wishart and Queensland South ultimately used to give notice of the 2 October meeting. That meant that, prior to the meeting, Ms Watson and family members on her side had no notice that Ms Broderick was a person who would receive notice or attend. 37 Moreover, during the course of the 2 October meeting, the issue of who ought be entitled to be a member of the Williams family and to control the nominated entity evolved to become the subject of real controversy. Ms Malone only accepted subsequently to the meeting that descendants of Sid Williams were within the family. 38 However, she and the others at Murgon used their voting power to approve resolutions for decisions 7 and 9 that excluded Ms Watson and her side of the family entirely from any substantive participation in the structuring of the proposed company that would be the nominated entity and from inclusion as its directors. This was not a bona fide use of the power to vote at the meeting or to control its outcome. 39 In Ngurli Limited v McCann (1953) 90 CLR 425 at 438, Williams ACJ, Fullagar and Kitto JJ said that: But the powers conferred on shareholders in general meeting and on directors by the articles of association of companies can be exceeded although there is a literal compliance with their terms. These powers must not be used for an ulterior purpose. "The term fraud in connection with frauds on a power does not necessarily denote any conduct on the part of the appointor amounting to fraud in the common law meaning of the term or any conduct which could be properly termed dishonest or immoral. It merely means that the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power", per Lord Parker in Vatcher v. Paull ([1915] AC 372 at 378). "The Court will not allow him" (that is the appointor) "to interpret the donor's intention in any other sense than the Court itself holds to be the true construction of the instrument creating the power; and a literal execution of the power, with a purpose which it does not sanction, is regarded as a fraud on the power", per Hatherley L.C. in Topham v. Duke of Portland ((1869) LR 5 Ch App 40 at 59. Voting powers conferred on shareholders and powers conferred on directors by the articles of association of companies must be used bona fide for the benefit of the company as a whole. (emphasis added) 40 I am of opinion that the evidence demonstrates that Ms Malone and the others attending at Murgon arrogated to themselves the powers to control the whole of the conduct of the proposed nominated entity. They used their voting power to deny the reasonable request of Ms Watson's side of the family to be involved in setting up the nominated entity or being directors and then excluded them from any involvement in its management. The extent of the abuse by Ms Malone and her allies is manifest in the use of their power under decisions 7 and 9 to draft the exclusionary provisions of the constitution to which I have referred. 41 The Court is naturally cautious when asked to interfere with the conduct of a meeting properly called, the ability of persons present to determine what outcomes occur and what authorities are to be conferred: Ngurli 90 CLR at 438; cf too Gambotto v WCP Ltd (1995) 182 CLR 432 at 445–447 per Mason CJ, Brennan, Deane and Dawson JJ. Under the ILUA, the families have power to establish a nominated entity for the purposes of holding and distributing to family members the financial benefits. That power must be exercised bona fide for the purpose for which it was given. 42 The 28 May and 27 July orders, as amended, contemplated that other persons who could claim to be members of the family and would be able to attend at meetings without having been on the agreed list of family members and contact list. 43 Because the lists of those persons to whom notice or an information pack should have been sent were not agreed in respect of the Williams family and in light of what has happened at the 2 October meeting, including the decision taken at the meeting to authorise the exclusion of Mr Murray from being able to attend, I am not satisfied that it occurred in accordance with the process that I ordered, including on 20 September 2021, that meetings could occur by attendance in person and by remote access. While I accept that Mr Wishart had bona fide reasons for determining that there may have been impracticality in allowing Mr Murray to attend, that was not a matter put to the 2 October meeting and, in the circumstances, may have affected how it was conducted and the outcome of the voting. 44 It is clear from the way in which those present at Murgon exercised their powers to exclude Ms Watson's side of the family from any involvement in the establishment or running of the nominated entity to be created and, from the constitution which they produced, that there was no bona fide use of the power to vote on, at least, decisions 7 and 9 for the purpose for which the power was intended. 45 Ms Malone's argument that the acknowledgment, during the early part of the meeting, that the bona fides of all persons present had been agreed may well have appeared to be correct at that stage. But the subsequent conduct in the meeting of those present at Murgon and later, with the authority that they derived from the meeting, shows that the resolutions for decisions 7 and 9 miscarried. 46 In my opinion, the voting power of those present at Murgon was not used bona fide to enable the money that QGC must pay under the ILUA to be held in the proposed nominated entity for the benefit of the Williams family as a whole. Rather, Ms Malone and the others at Murgon used their voting power for the dominant purpose of conferring benefits on a limited part of the Williams family, being the descendants of Bessie Williams, to the exclusion or detriment of the balance of the members of the Williams family. That vitiated the resolutions of the 2 October meeting: Ngurli 90 CLR at 438; cf Gambotto 182 CLR at 445–447; Wayde 180 CLR at 466–468. Conclusion 47 Accordingly, I will declare that the 2 October meeting of the Williams family was invalid and of no effect. That will require a new meeting to be held. I will allow the parties, Queensland South and the Tribunal to prepare a timetable in which that can occur as expeditiously as possible. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate: Dated: 23 February 2022 SCHEDULE OF PARTIES QUD 334 of 2021 Respondents Fourth Respondent: MS LILLIAN COLONEL Fifth Respondent: MS PATRICIA CONLON Sixth Respondent: MR WILLIAM DAVIS Seventh Respondent: MS ELIZABETH DOYLE JOHNSTON Eighth Respondent: MS KYLIE JEROME Ninth Respondent: MS MARGARET MCLEOD Tenth Respondent: MS KATHLEEN OTT Eleventh Respondent: BCJWY ABORIGINAL SOCIETY LIMITED Twelfth Respondent: MURRA DOWNS LTD