Henry v Sandlewood Aboriginal Projects Limited

Background 2 I have set out the background to the proceeding in Henry v Western Downs Group Limited [2018] FCA 1168, Henry v Sandlewood Aboriginal Projects Limited (No 2) [2019] FCA 2061, and Henry v Sandlewood Aboriginal Projects Limited (No 3) [2021] FCA 728. In Henry [2018] FCA 1168, I granted leave to the then applicants under s 237 of the Corporations Act to bring claims in the name of Western Downs against Sandlewood, and the other respondents who had been officers of Western Downs. 3 The principal claim that Western Downs makes against Sandlewood is that it is liable as a constructive trustee under the first or second limb of the rule in Barnes v Addy (1874) LR 9 Ch App 244 at 251- 252. There, Lord Selborne LC held that, under the first limb, if a third party, such as Sandlewood, received trust money that a trustee or fiduciary paid to it and knew that the payment or transfer was made in breach of trust (or the duty), the recipient would be liable to restore the trust. Under the second limb, the third party will be found to be a constructive trustee if he, she or it assisted the trustee or fiduciary with knowledge of the latter's dishonest and fraudulent design. 4 Here, the applicants alleged that Western Downs paid Sandlewood substantial sums in breach of its fiduciary duty, where Western Downs was effectively the trustee of moneys received from Arrow Energy Pty Limited under the Indigenous Land Use Agreement (ILUA) that a number of individuals, including the individuals who are applicants, entered into with Arrow on 10 December 2012 on their own behalves and on behalf of persons who then understood themselves to be members of 11 actual or potential native title claim groups. The ILUA defined those claim groups as the "Western Downs Unclaimed Area Native Title Group" with an interest in lands and waters in South East Queensland in the Western Downs Area not then the subject of any determination of native title under the provisions of the Native Title Act 1993 (Cth). 5 The claim against Sandlewood under the second limb in Barnes LR 9 Ch App at 251-252 was based on the allegation that Sandlewood had knowingly assisted in Western Downs being caused dishonestly and fraudulently, in breach of its duty as trustee of the money Arrow had paid to it under the ILUA for distribution to the 11 claim groups in equal shares, to pay that money, or some of it, as Western Downs directed to persons who had no right to it. 6 The third further amended statement of claim pleads that: alternatively, Sandlewood: • had actual knowledge that Western Downs held moneys received under the ILUA in its capacity as trustee; or • wilfully shut its eyes to the obvious; or • wilfully and recklessly failed to make inquiries that an honest and reasonable person would have made; or • had knowledge of circumstances that would indicate the facts to an honest and reasonable person (those states of mind reflect the requirements of what constitutes knowledge that a third party, such as Sandlewood, must have in order to be liable under Barnes LR 9 Ch App at 251-252: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 163-164 [174]-[179] per Gleeson CJ, Gummow, Callinan, Heydon, Crennan JJ); on a date and in a manner not known to the applicants at the time of the pleading, but prior to 9 December 2011, Arrow had engaged Sandlewood as a service provider for the purpose of facilitating payments to individual group members for travelling to attending and participating in negotiations for the ILUA, and that at those meetings, Sandlewood through its officer, John Leslie, became aware of the relevant background to, and terms of, the ultimately negotiated ILUA; Mr Leslie attended the board meetings of Western Downs on a number of occasions, first on 16 December 2012 and then on five dates between 9 January 2014 and 6 March 2014. Mr Leslie also attended working party meetings attended by the second respondent, Russell Doctor, the third respondent, Jason Jarro, the fourth respondent, Kerry-Anne Lacey, and Susan Maytom, the first three of whom, at the relevant times, were officers of Western Downs; at those board meetings discussions occurred about the operation of the ILUA, Western Downs' constitution and the fact that Arrow had paid the money pursuant to the ILUA in order that it be shared equally amongst the 11 claim groups or their members; Mr Doctor, Mr Jarro and Mrs Lacey, as directors and officers of Western Downs and or signatories to its bank account, authorised Western Downs to pay Sandlewood over a considerable period a total of $1,613,023.88 by 28 cheques; those payments were in satisfaction of invoices issued by Sandlewood, including ones claiming over $700,000 of moneys due to it in respect of payments it had made to, among others, Mr Doctor and Mr Jarro for attending about 105 meetings between them within a relatively short period; those meeting fees were unjustified (in circumstances that I explained in my reasons in Henry (No 2) [2019] FCA 2061 at [25]-[29)]; the total sums paid, as set out in [68] of the statement of claim are as follows: Russell Doctor Meeting Fees $335,925 Jason Jarro Meeting Fees Grants $376,044 Iman Group Meeting Fees $213,934 Jarowair Group Meeting Fees $113,880 Lucy Davis-Cobble Cobble Meeting Fees $80,472 Other WDGL Directors Meeting Fees $44,728 Creevy Russell Lawyers Uncertain $25,600 Western Wakka Wakka Meeting Fees $21,866 Kambuwal Group M Queary Meeting Fees $13,114 Ray Robinson Uncertain $11,725 Annette Rabbitt Uncertain $10,000 Mandandanji Group Meeting Fees $9,762 Northern Goomeri Meeting Fees $26,100 Yarowair Group Meeting Fees $10,947 Veronica Jarrett Uncertain $1,500 Sub-Total $1,295,597 Sandlewood and GST 20% $317,425 TOTAL $1,613,023

7 In addition, the statement of claim alleged that: on 17 February 2014, Western Downs paid $120,000 to Sandlewood by a cheque authorised by Mr Doctor, Ms Lacey and Ms Maytom; that payment was not supported by any invoice from Sandlewood to Western Downs; each of Mr Doctor, Mr Jarro and Ms Lacey used his or her position as a director or officer of Western Downs, and or as a signatory to its bank account, to effect or authorise payment of moneys held by it on trust, for purposes other than those for which Western Downs held the money, in breach of their fiduciary obligations owed to Western Downs and the 11 claim groups; those payments conferred benefits on, among others, a company associated with Mr Doctor (Bigambul Limited), Mr Doctor himself, Mr Jarro, Sandlewood, Ms Lacey and the fifth respondent, Lucy Davis, each of which constituted a breach of the duties which those individuals owed Western Downs; Sandlewood was aware of the nature of the trust on which Western Downs had received moneys from Arrow pursuant to the ILUA; Western Downs held those moneys on trust for distribution equally to the 11 claim groups; the payments totalling $1,613,023 were: • not bona fide expenses incurred by Western Downs; • were for the benefit of Sandlewood itself, Mr Doctor and Mr Jarro and not for Western Downs or the claim groups; and • were in an amount or amounts obviously detrimental to the cestui que trusts, namely, the claim groups.

The proposed settlement 8 The applicants and Sandlewood attended a mediation on 16 September 2021 conducted by the Honourable John Byrne AO QC RFD. The applicants were represented by Peter Somers of counsel and their solicitor, Trevor Hauff; Sandlewood by Damien Atkinson QC and Kristie Swainston of DLA Piper lawyers; and the Attorney-General by Holly Blattman, instructed by Nathalie Frost of Crown Law. As a result of the mediation, the applicants and Sandlewood entered into an undated deed of settlement, a redacted version of which Mr Hauff annexed to his affidavit of 12 November 2021. 9 The full terms of the deed are in a confidential exhibit before me, together with Mr Somers' confidential memorandum of advice dated 18 November 2021. 10 Relevantly, the settlement provides for the payment of a sum by Sandlewood to Western Downs in settlement of all the claims or possible claims against it or claims that might be made against Sandlewood's directors and officers. The deed also provides for payment of a sum in respect of the applicants' costs of prosecuting their claim against Sandlewood. 11 Mr Somers' advice, relevantly, discussed the matters that he considered apposite to warrant his conclusion that the settlement sum represented a good resolution of the claim, given difficulties which he identified and outlined in respect of Western Downs being able to establish certain matters in its pleaded case. He also noted that the settlement provided for the recovery of a proportion of the costs incurred in prosecuting the case against Sandlewood. 12 In forming his opinion, Mr Somers had regard to the fact that, were the matter to go to trial, first, further substantial legal costs would be incurred, not all of which would be recoverable on a taxation, even if Sandlewood were unsuccessful, secondly, there was a commercial risk that, even if successful, the full value of a judgment may not be ultimately recoverable,; and thirdly, there remained a risk that the claim would fail. In those circumstances, Mr Somers recommended the settlement. 13 The Attorney-General has seen Mr Somers' opinion and, although she has not independently reviewed the parties' discovery or disclosures in the proceeding or conferred with potential witnesses, she was represented at the mediation and is aware of the terms of the proposed settlement. The Attorney considers that the proposed settlement between the applicants and Sandlewood is a reasonable one. The Attorney seeks that, as with the other orders for summary judgment made against Mr Doctor, Mr Jarro and Ms Lacey, the settlement sum, as opposed to the costs component of the settlement, be paid into Court and that, before payment out, the Court settle a scheme as to how all the funds paid into Court be used to advance the charitable purpose of the trust.

Consideration 14 The scheme of the Corporations Act allowing members and others to bring a proceeding on behalf of a company under Pt 2F.1A contemplates a degree of supervision of such a proceeding by the Court. First, s 237 requires a person to apply for leave to bring a proceeding in the name of a company and sets out relevant considerations that are discussed in Huang v Wang (2016) 114 ACSR 586 at 597-598 [56]-[60] per Bathurst CJ, with whom McColl and Barrett JJA agreed. Secondly, s 240 requires that leave of the Court must be obtained before a proceeding brought, or intervened in, with leave under s 237, can be discontinued, compromised or settled. Thirdly, the Court may make orders under s 241 and give any directions it considers appropriate in relation to proceedings brought under Pt 2F.1A. 15 Nothing in Pt 2F.1A expressly sets out the considerations relevant to the grant of leave to settle a proceeding under s 240. In my opinion, the discretion to grant leave under s 240 falls to be exercised on the principle that it is unconfined, except in so far as the subject matter, scope and purpose of the Act may enable the Court to discern any reason that is definitively extraneous to any objects that the Parliament could have had in view: see Water Conservation and Irrigation New South Wales v Browning (1947) 74 CLR 492 at 505 per Dixon J; The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49-50 per Stephen, Mason, Murphy, Aickin and Wilson JJ. The considerations governing the grant of leave to bring the proceeding under s 237 must also be relevant to the discretion to grant leave to enter into any particular settlement, as Stewart J held in Nation Energy (Australia) Pty Limited v Paltar Petroleum Limited (Administrators Appointed) [2019] FCA 1473 at [15], where he said: Given that the power under s 241 is supervisory of proceedings commenced with leave under s 237, and the interests of the company are central to the granting of such leave, the interests of the company must be central to the exercise of the power under s 241. In considering what is in the best interests of the company, it is necessary to consider the prospects of success of the action, the likely costs and likely recovery if the action is successful and likely consequences if it is not: Robash Pty Ltd v Gladstone Pacific Nickel Pty Ltd [2011] NSWSC 1235; 86 ACSR 432 at [57] per Ball J. 16 In granting leave to bring a proceeding in the name of the company under s 237, Bathurst CJ said in Huang 114 ACSR at 597 [60] that an applicant must establish, on the balance of probabilities, that to do so is in the best interests of the company, which can only be demonstrated by taking into account all relevant circumstances, and where the company is solvent, those interests will predominantly reflect the interests of shareholders of the company in that capacity. He approved an observation by Ball J in Robash Pty Limited v Gladstone Pacific Nickel Pty Limited (2011) 86 ACSR 432 at 445-446 [58] that the grant of leave did not necessarily involve a consideration of the underlying merits of the proposed litigation except to the extent necessary to determine if there were a serious question to be tried. 17 I am of opinion that, where a court is asked to approve a settlement, ordinarily it will have regard to any advice of counsel for the plaintiff or applicant as to the considerations taken into account in arriving at and recommending the settlement. That is because the Court must be satisfied, ultimately, that it is in the best interests of the company in whose name the action has been allowed to proceed for it to be compromised on the terms on which the Court is asked to act. 18 I have reviewed the allegations in the statement of claim and Sandlewood's defence, where it denied a number of matters that it would be essential for Western Downs to establish. These include denials of the allegations that Sandlewood had knowledge sufficient to make it liable under the principles in Barnes LR 9 Ch App at 251-252. 19 Sandlewood asserted that it only received a benefit of a commission of 10 per cent of the moneys that Western Downs passed through it and asserted its belief that the moneys which it received and paid on were for Western Downs' benefit in accordance with its experience in dealing with numerous other similar arrangements that it had made to assist native title claim groups distribute benefits to their members. Those pleaded denials might make it difficult for Western Downs to prove certain matters, particularly having regard to the list of payees in par 68 of the statement of claim. It is apparent that there were numerous persons to whom payments were made of varying sizes, some of which were less problematic than others, such as those to Mr Doctor and Mr Jarro, who had 105 meetings within a relatively short period of time under which each man received over $330,000: see [6] above. 20 While one might think, as I have found in entering judgment against each of Mr Doctor and Mr Jarro, that those fees taken as a whole would be difficult to justify, proof of liability in respect of many of Sandlewood's other payments would have required considerable evidence and attention individually. I am satisfied that there were complex and difficult issues of fact and law raised on the pleadings on which there was room for the parties to arrive at a bona fide compromise having regard to the uncertainties of litigation.

Conclusion 21 Accordingly, I am satisfied that, having regard to the submissions of the parties and on the evidence before me, the nature of the claims, and the submissions of the Attorney-General as an intervenor, with responsibility for considering the best interests of the charitable trust the subject of Western Downs' constitution and the ILUA, that I should grant Western Downs leave to enter into the proposed settlement in the settlement deed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

SCHEDULE OF PARTIES QUD 280 of 2017 Applicants Fourth Applicant: PATRICIA CONLON Fifth Applicant: PATRICK BUNDAI Sixth Applicant: GEORGE HOPKINS Seventh Applicant: WESTERN DOWNS GROUP LIMITED (AN 166 757 384) Respondents Fourth Respondent: KERRY-ANNE LACEY Fifth Respondent: LUCY DAVIS Sixth Respondent: BIGAMBUL LIMITED