Consolidation order made by Registrar Johnson on 5 November 2007

BETWEEN : IBN CORPORATION PTY LTD as trustee for IBN FINANCIAL ASSISTANCE FOUNDATION (ACN 093 140 240)

BETWEEN : IBN CORPORATION PTY LTD as trustee for IBN CHARITABLE FOUNDATION (ACN 093 140 240)

Practice and procedure - Originating process - Proceedings pursuant to s 92 Trustees Act 1962 (WA) - Application by plaintiff for leave to discontinue - Whether present proceedings are an appropriate means of resolving matters in issue between parties - Review of principles bearing upon an application for discontinuance - Whether a plaintiff should be compelled to litigate or pursue a claim against its will - Whether defendants lose any existing advantage if action is discontinued - Question of whether any manifest injustice needs to be prevented if discontinuance of action is ordered - Risk that third defendant's contentions would transform the present proceedings from an application for directions into a contested proceeding involving provision of pleadings and resolution of contested matters of fact - Finding that leave to discontinue should be granted subject to certain conditions

Native Title Act 1993 (Cth)

Rules of the Supreme Court 1971 (WA), O 23 r 2(3), O 58 r 10

Supreme Court Act 1935 (WA), s 25

Trustees Act 1962 (WA), s 92, s 94

Consolidation order made by Registrar Johnson on 5 November 2007

Allan v Hocking [2006] TASSC 2; (2005) 15 Tas R 234

Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family (1997) 19 WAR 1

City of Belmont v Link Interiors Pty Ltd [2001] WASC 64

Covell Matthews & Partners v French Wools Ltd (1977) 2 All ER 591

Fox v Star Newspaper Co Ltd [1898] 1 QB 636

Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254; (2007) 35 WAR 190

Pharmaust Ltd v Advance Healthcare Group Ltd [2007] WASC 125

Re Nilant [2004] WASC 7; (2004) 28 WAR 81

Ritz Hotel Ltd v Charles of the Ritz Ltd (No 8) [1987] 12 IPR 75

SCI Operations Pty Ltd v TPC; Visy Board Pty Ltd v Attorney-General (Cth) [1984] FCA 52; (1984) 53 ALR 283

Wendt v Orr [2004] WASC 28

1 These proceedings arise out of a decision by BHP Iron Ore Pty Ltd and certain other mining companies - known for the purpose of these proceedings as the 'joint venturers' - to proceed with the development of the Mining Area C iron ore project in the East Pilbara.

2 The decision led to negotiations with claimants for native title in the area and eventually to the execution of a document described as the 'IBN Group Native Title and Compensation Agreement' and certain other formal documents. These included trust deeds designed to facilitate the distribution of funds payable to the claimants pursuant to the so-called 'MAC Agreement', being a shorthand term referable to Mining Area C.

3 A dispute arose between claimant groups as to entitlements under the MAC Agreement. With a view to resolving the dispute, IBN Corporation Pty Ltd as the trustee of two foundations with an interest in the matter, commenced proceedings pursuant to s 92 of the Trustees Act 1962 (WA). The effect of that provision is that a trustee may apply to the court for directions concerning any property subject to a trust.

4 More particularly, directions were sought by the plaintiff concerning the meaning of the word 'Banjyma' and the word 'beneficiaries' being key words used in the trust deeds administered by the plaintiff.

5 I note in passing that in fact the plaintiff commenced legal proceedings of essentially the same kind in respect of two discrete trusts, namely, the IBN Charitable Foundation and the IBN Financial Assistance Foundation, known as the FAF Foundation.

6 These two matters (CIV 1807/07 and CIV 1808/07) were then consolidated pursuant to an order made by a registrar of the Supreme Court on 5 November 2007. Six months later a further order was made under O 18 r 13 of the Rules of the Supreme Court 1971 (WA) to the intent that the four defendants named above would represent everyone who might be entitled to benefit under the relevant trust.

7 The plaintiff's contention as to the meaning to be attributed to the words in question was contested by Milyuranpa Banjyma Aboriginal Corporation (the third defendant) upon the basis that the Milyuranpa Banjyma people are a distinct language group and are expressly entitled to benefit from the subject trusts to the exclusion of other Banjyma people who are not Milyuranpa Banjyma people.

8 Lengthy affidavits have been filed on both sides and the matter has proceeded to mediation before a registrar of the Supreme Court.

9 Issues have arisen as to whether expert evidence can be adduced to assist a resolution of the dispute. An issue has been raised also by the third defendant as to whether the plaintiff is acting properly as a trustee in continuing to contend for an interpretation of the relevant documents which is strongly opposed by the third defendant as a body representing persons who may be said to have an entitlement on any view of the matter in dispute.

10 The plaintiff corporation, by chamber summons dated 4 June 2009, has now applied for leave to discontinue the consolidated proceedings. It does so on the grounds that the plaintiff cannot continue these proceedings in the following circumstances:

1. where in its view there is no longer a requirement for the court to give directions under the Trustees Act 1962 (WA);
2. there is a real possibility that the proceedings may become fragmented or engage matters other than those that gave rise to the proceedings and upon which the proceedings are based;
3. the associated issues of costs, delay and distraction of the plaintiff trustee from the tasks of administering the trust created by the trust deeds; and
4. where the plaintiff trustee's fiduciary duties require it to discontinue.

11 It was common ground at the hearing concerning the plaintiff's chamber summons that leave to discontinue is required pursuant to O 23 r 2(3) of the Rules of the Supreme Court.

12 Order 23 rule 2(3) of the Rules of the Supreme Court provides that it shall not be competent for the plaintiff to discontinue an action without leave of the court, but the court may upon such terms as to costs, and as to any other actions, and otherwise, as may be just order the action to be discontinued.

13 I will look at the decided cases bearing upon this provision in more detail later. It seems that the rule finds its source in the principle that, once a proceeding has reached a certain stage, the plaintiff should not be permitted to abandon it in order to avoid a contest, except upon terms determined by the court. The appropriate order is that the action be discontinued, not that leave be given to discontinue the action: Allan v Hocking [2006] TASSC 2; (2005) 15 Tas R 234.

14 It is said in Seaman Civil Procedure at par 23.2.4 that subject to questions of injustice, the court will be disposed to give leave to discontinue an action because it is not desirable that a plaintiff should be compelled to litigate against his or her will. The court should grant leave, if it can, without injustice to the defendant, being careful to see that the defendant is not deprived of some advantage which he or she has already gained in the litigation, and it should be ready to grant the defendant adequate protection to ensure that any advantage he or she has gained is preserved.

15 Further, it is said by the learned author that there is no principle that leave will never be granted unless the rights of the defendant are completely protected. Discontinuance pursuant to leave does not attract an automatic award of costs against the discontinuing party.

16 In responding to the grounds for discontinuance advanced by the plaintiff, the third defendant contends that in the special circumstances of the present case it would not be just to grant leave to discontinue.

17 I will turn to the detailed submissions of the parties in due course. However, it follows from these introductory observations that I must begin by revealing the background to the dispute at some length. In doing so I will draw upon the affidavits filed by the parties in order to provide a coherent narrative, and so that the nature of the matters in issue can be readily understood, but not with a view to making any findings of fact.

18 Counsel for the plaintiff submitted that in dealing with the application for leave to discontinue it was not necessary, and indeed it would be inappropriate, for the court to determine, or purport to determine, the meaning of the disputed terms or any of the matters in dispute. I agree with his observations in that regard and these reasons for decision should be read accordingly.

19 The materials before me reveal a lack of consistency in use of the terms Banjyma people and Bunjima people. The nature of the dispute suggests that a degree of inconsistency is unavoidable. Indeed, it might simply create a risk of confusion and further disputation if I were to disregard the usage in the documents and in the naming of corporations by imposing uniformity. I will therefore adhere to the usage in the document under discussion and resolve any difficulties with the terminology as the need arises.

20 The principal affidavit on the plaintiff's side is the affidavit of Charles Smith sworn 9 August 2007 and filed with the plaintiff's originating summons ('the Smith affidavit'). I will draw upon this affidavit and the other materials in describing the background to the dispute.

21 It is said by the plaintiff that in 1996 Hamersley Iron Pty Ltd wished to obtain a mining lease in order to develop the Yandicoogina iron ore mine in the Central Pilbara and associated tenure in order to construct a railway and other infrastructure.

22 Anthropologists identified members of three different language groups as having a connection to the land affected, namely, the Innawonga language group, the Banjyma language group and the Niapaili language group. These groups negotiated collectively as 'Gumala'. Members of the Gumala then lodged the IBN Native Title Claim (the letters used being the initials of the three language groups just mentioned). An agreement between the three language groups was signed in 1997 under which various payments were made to trusts set up for the three groups.

23 During the course of the negotiations disputes arose in the Gumala group, particularly between two sections of the Banjyma people. A large number of Banjyma people (referred to as Martu Idja Banjyma, known collectively as the MIB Group) withdrew from the earlier native title claim and lodged their own native title claim, known as the MIB Native Title Claim.

24 The persons who continued to support the IBN Native Title Claim became known as the IBN Group. That group continued to meet regularly and in due course it was established as an incorporated body, being the plaintiff in these proceedings, IBN Corporation Pty Ltd.

25 It is said in the Smith affidavit that the MIB Native Title Claim was made primarily by persons who identified themselves as having connections with the low gradient 'Banjyma' land, being described also as 'bottom-end Banjyma'. The IBN Native Title Claim is primarily associated with persons who identify themselves as having connections with the high gradient Banjyma land, also called 'top-end Banjyma'.

26 IBN Corporation Pty Ltd became the central organisation or representative of the IBN Group. During 1999 negotiations between the IBN Group and BHP Iron Ore in relation to the Mining Area C iron ore project (the MAC Project) began to gather momentum. It is said that the IBN Group established a working party or committee to design and develop a foundation to receive and administer funds received as a result of negotiations with mining companies.

27 An interim trust was created to receive moneys payable under an agreement made with Robe River Mining Co Pty Ltd. However, the working party or committee continued with the process of developing an IBN Foundation No 1 in tandem with the MAC Project negotiations.

28 The Smith affidavit asserts that the MAC Project covered land within the IBN Native Title Claim which was on lower gradient land (i.e. land the bottom end Bunjima claim connections with) and higher gradient land (i.e. land the top end Bunjima claim connections with).

29 The Smith affidavit asserts that in the process of developing the IBN Foundation No 1 repeated concerns were voiced within the IBN Group concerning the need to confine benefits under the foundation to IBN Group members and to ensure that control remained with the IBN Group.

30 This concern was largely fuelled by the events mentioned earlier, namely, that the members of the Banjyma language group had split into two groups, each with separate overlapping competing native title claims. There was a concern that members of the MIB Group might seek to become beneficiaries under the IBN Foundation and thereby participate in monetary benefits.

31 In late 2000 the MIB Group concluded an agreement with BHP Iron Ore.

32 It is said in the Smith affidavit that as a result of the concerns mentioned earlier, provisions were formulated which were designed to make the IBN Group self-defining and to exclude persons who claimed rights under any native title claims which overlapped with any part of the IBN Native Title Claim.

33 The working party also sought to ensure that the members of the Banjyma language group was defined in a manner which sought to distinguish those members of the Banjyma language group who are part of the IBN Group from those who are part of the MIB Group. It is said that this was not easy to do. However, the expression 'top-end Bunjima' was adopted as a convenient way to describe the Bunjima people who were members of the IBN Group while the expression 'bottom-end Bunjima' was adopted as a convenient way to describe the Bunjima people who were members of the MIB Group.

34 It is said further that by late 2000, some Bunjima people began to refer to the Bunjima people who were part of the IBN by the expression 'Milyuranpa Bunjima'. This term was used in contra distinction to the Bunjima people involved in the MIB Native Title Claim who were often referred to as the Martu Idja Banjima. According to the Smith affidavit, these terms were typically used in a relative sense in the context of distinguishing the two Banjyma native title claimant groups in a short hand way.

35 It is said further that the term 'Fortescue Banjyma' refers to those Banjyma people who support the IBN Native Title Claim and have in that sense joined with the top end Bunjima people for all native title claim purposes but who also claim connections to the flat or relatively flat Banjyma land contained within the IBN Native Title Claim.

36 I pause here to reiterate that assertions in the Smith affidavit of the kind I have just referred to are vigorously contested by the third defendant and underlie the procedural issue mentioned earlier as to whether expert evidence has a role to play in the present proceedings. However, as I have indicated, it is necessary to understand the opposing contentions in order to deal with the application for leave to discontinue and related questions such as whether the present proceedings are an appropriate means of resolving matters in issue between the parties.

37 The plaintiff's contention is that by the time the proposed deed of trust (described as the original deed) was executed on 26 May 2001, it made reference in the definition of Bunjima in cl 30 of the deed to the Milyuranpa Bunjima and sought to equate that expression with the expression 'top end Bunjima'.

38 However, at the time of the execution of the original deed no anthropological or genealogical studies had been commissioned by the IBN Group or the trustee corporation to define the Milyuranpa Bunjima or the top end Bunjima or their membership. At that time these were expressions simply denoting a loosely defined political and social grouping (rather than traditional or anthropological grouping) of Bunjima people who supported the IBN Native Title Claim.

39 Further, the IBN Native Title Claim had not yet been determined and was therefore only an untested claim. The beneficiaries under the foundations were intended at the minimum to include those persons determined under the claim to have native title.

40 It is said that, as the IBN Group is intended to be self-defining, other persons can also be included as beneficiaries (i.e. persons who do not hold native title) but all persons with native title are automatically to be beneficiaries (for the reason that a primary function of the MAC Agreement and the foundations is to provide compensation to the native title holders affected by the MAC Project). This was a pragmatic approach which was intended to reduce scope for disputation as to who was in or out.

41 On the other hand, the third defendant contends that the effect of the crucial definition provision, and of the documents as a whole, was to benefit the Milyuranpa Bunjima people to the exclusion of all bottom-end Bunjima people, save for any person being an original claimant under the IBN native title claim or a person otherwise accepted as a legitimate claimant by the Milyuranpa Bunjima people. In essence, those excluded by the definition provisions are the Martu Idja Banjyma or bottom end Banjyma or Fortescue Banjyma or the Bantikura Banjyma or Wirrilmarra Banjyma being the groups referred to in the trustee's originating summons.

42 Having provided an overview of the dispute, let me now turn to the relevant documents in more detail.

43 The MAC Agreement is dated 26 May 2001. The parties are BHP Iron Ore Pty Ltd as manager and agent for the companies comprising the joint venturers, certain individuals described as applicants and registered native title claimants, for and on behalf of themselves and a native title claim group on whose behalf the claim is made known as the Innawonga, Bunjima and Niapaili people (called the 'claim group') and IBN Corporation Pty Ltd (described as trustee and being the plaintiff in these proceedings).

44 The MAC Agreement is preceded by various recitals. There is no need to traverse these recitals in their entirety. It is said in par A that the applicants execute the agreement 'for and on behalf of the native title claim group (known as the Innawonga, Bunjima and Niapaili people) on whose behalf the claim is made'. It is said in par K that the claim group have established the IBN Foundation for the purpose of receiving, managing and distributing funds for the benefit of the IBN beneficiaries, including compensation payable under the Agreement in connection with the effect of the project on the claimed native title rights and interests of the claim group.

45 Further, 'all members of the claim group will generally be eligible to be beneficiaries of the IBN Foundation subject to the terms of the trust deed'. By cl 1 the term 'IBN beneficiaries' means persons who from time to time are accepted by the trustee as being 'traditional owners' in accordance with the trust deed. The trust deed is defined to mean the deed relating to the establishment of the IBN Foundation made on or about 25 May 2001 between Mark Robert Edwards and the trustee.

46 By cl 3.3(a)(ii), the MAC Agreement, including the payment of compensation to the IBN Foundation, will continue in full force and effect irrespective of whether any of the claim group is determined to hold native title over the project area. The applicants represent and warrant to the joint venturers by cl 3.5 that they believe the claim group are holders of native title within the claim area. Schedule 10 contains a description of the persons making up the claim group as recorded on the register of native title claims 'at the time of the execution of this agreement (although the parties recognise that that description may not be an exhaustive or up to date description of the claim group)'.

47 By cl 3.10(a) if any IBN beneficiary is not a member of the claim group the trustee must use its best endeavours to obtain from those persons a deed of undertaking in favour of the trustee to comply with the obligations contained in the deed of undertaking which is intended to reflect the principal obligations of the applicants and the claim group under the Agreement.

48 Clause 7.1(a) provides that in consideration of the ongoing obligations and agreements of the applicants and claim group and the trustee under the MAC Agreement, the joint venturers will pay compensation to the IBN Foundation in accordance with cl 7.

49 The IBN Foundation No 1 Trust Deed, referred to in earlier discussion as the original deed, was dated 26 May 2001. It was entered into by Mark Robert Edwards as founder and IBN Corporation Pty Ltd as the trustee. It contains a recital that certain of the Bunjima people, the Niapaili people and the Innawonga people (known as the IBN group) have joined together to make the native title claim defined in the deed. The Foundation was created for the purposes of benefiting the traditional owners. By cl 3.1 the foundation is said to be established for public charitable purposes for the objects of the relief of the traditional owners and their descendants, particularly (but without limitation) those traditional owners residing in the region and their descendants.

50 Certain guiding principles are set out in cl 5.1 of the original deed. Clause 5.1(5) is to the effect that in sharing benefits between members of the language groups, namely the Bunjima, Innawonga and Niapaili, the members of the three language groups will generally be treated equally in the sense of participating in benefits in proportion to the size of its membership in the IBN group with it being 'hereby agreed' that as at the date of the original deed the membership of the IBN group comprises 87 Niapaili persons, 159 Bunjima persons and 69 Innawonga persons.

51 By cl 10.1 the trustee is to prepare and maintain a register of traditional owners. By cl 10.2 if a traditional owners committee determines that a person is to be considered as a traditional owner then such a person will be deemed to be a traditional owner irrespective of whether genealogical or land ownership studies identify that person as a traditional owner or whether or not that person is a member of the group on behalf of which the claim or any other native title claim has been made or determined by the tribunal. The clause continues:

A person will not be treated as a member of the Bunjima unless the Bunjima people known as the Milyuranpa Bunjima people accept that person as a member of the Bunjima.

52 Clause 10.3(a) provides, in effect, that subject to cl 10.4, cl 10.7 and cl 10.9 all adult persons who are at the date of the original deed members of the native title claim group (as defined in the Native Title Act 1993 (Cth)) in relation to the claim are deemed to satisfy the requirements of cl 10.5 and are therefore entitled to be included in the traditional owner register.

53 Clause 10.5 provides that without limiting cl 10.3 certain factors are to be considered in deciding whether persons are entitled to be included in the traditional owner register. The factors include whether such persons regard themselves as being a member of one of the Bunjima, Innawonga or Niapaili language groups and the person is accepted by other members of that language group as a member.

54 By cl 11 the trustee is to procure the establishment of separate incorporated bodies for each of the Bunjima, Innawonga and Niapaili language groups. The role of a representative corporation is to represent its language group in putting proposals to the trustee in relation to matters relevant to its language group.

55 Clause 30 is a 'dictionary' provision which provides that expressions in the dictionary shall have the meanings set out in the clause.

56 The term 'language group' means a group of Aboriginal people who are under Aboriginal tradition (by virtue of kinship and other matters) members of any of the language groups known as Bunjima, Innawonga or Niapaili (being the names of the different dialects historically spoken by Aboriginal people with traditional ownership of the traditional lands).

57 'Traditional owners' means the persons whose names are from time to time on the traditional owner register. The 'traditional owner register' means the register of traditional owners contemplated by cl 10.

58 Importantly for present purposes, cl 30 contains a definition of 'Bunjima' as follows:

"Bunjima" means the people who are from time to time members of the Aboriginal peoples known as the Milyuranpa Bunjima (otherwise known as the top end Bunjima) being the persons who are by Aboriginal Tradition entitled to the use or occupation of any part of the Claim Area irrespective of whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission and includes those persons, if any, having native title thereto under common law

59 It is said in the Smith affidavit at par 48 that immediately after the execution of the original deed application was made by the trustee to the Australian Tax Office (ATO) to have the IBN Foundation No 1 endorsed as a charity so as to obtain an income tax exemption for the income of the Foundation.

60 When the ATO refused the endorsement the trustee's solicitors advised that one of the ATO's principal areas of concern arose from the requirement under the original deed that only persons registered on the traditional owner register could share in benefits. This meant that the trust, being like a 'club', could not be a charity.

61 The original deed was then varied by a deed of variation dated 30 September 2002 so as to give the trustee a wider discretion in identifying who was part of the community and therefore beneficiaries. The deed of variation was executed by the IBN Corporation and four representative corporations which, pursuant to cl 25.5 of the original deed had the power to vary the original deed.

62 Clause 3 of the operative part of the deed of variation provided that nothing in this deed is intended to or shall have the effect of varying any beneficial interests existing under the trust deed or resettle the trust and this deed must be construed consistently with this intention.

63 The definition of the term 'Bunjima' in cl 30 (the dictionary provision) remained the same. The term 'community' or 'beneficiaries' was defined to mean 'the Bunjima, Niapaili and Innawonga'. Following the execution of the deed of variation, the trust (now known as the IBN Charitable Foundation) successfully reapplied to the ATO for endorsement as a charity.

64 The IBN group then authorised the creation of a second trust to receive and administer monies received under the MAC Agreement which were to be used for non-charitable purposes, such as cash distributions to members of the IBN group.

65 This second trust was created by execution of the so-called FAF Deed on 14 December 2002 and is known as the 'IBN Financial Assistance Foundation'. Arrangements were then made with BHP Iron Ore Pty Ltd for the royalties and other monies payable under the MAC Agreement to be apportioned between the IBN Charitable Foundation and the IBN Financial Assistance Foundation. IBN Corporation Pty Ltd, being the plaintiff in these proceedings, acts as trustees for both Foundations.

66 It appears from the Smith affidavit at par 51 that about a year after the original deed was executed a query was raised as to whether the definition of 'Bunjima' in cl 30 of the original deed was appropriately worded to encompass all the Bunjima people in the IBN group. This was because there were many Bunjima people in the IBN group who had joined with the top end Bunjima for native title claim purposes, but who claimed connections with the relatively flat Bunjima country and might therefore be referred to as bottom end Bunjima or Fortescue Bunjima rather than as top end Bunjima.

67 The board of directors of the trustee therefore agreed in the interests of clarity that they would support a proposal to amend the definition of 'Bunjima' in the deeds governing both the IBN Charitable Foundation and the IBN Financial Assistance Foundation to make it abundantly clear that the bottom end or Fortescue Banjyma members of the IBN group were Bunjima people for the purposes of those deeds.

68 It is said in the Smith affidavit that the trustee considered that in supporting the change it was doing no more than confirming the status quo. In other words, the trustee considered that the relevant Bunjima people were already Bunjima people for the purposes of the deeds and had been formally identified as such and, in supporting the terminology refinement in the trust deeds, the trustee was simply confirming what was already the case.

69 At a meeting of the IBN group on 11 December 2004, the right of Fortescue Banjyma people to share in benefits under the two trusts was challenged. The proposed resolution was withdrawn pending the provision of legal advice and the formulation of an appropriate process to resolve the dispute.

70 The trustee subsequently sought legal advice and as a result determined to seek directions from the court in regard to the matter in issue.

71 In his affidavit Mr Smith asserts that at all times between the inception of the IBN group in 1998 until 11 December 2004, a large number of Fortescue Banjyma people have been actively and prominently involved in the activities of the IBN group and were accepted by the other members of the IBN group as being members of the IBN group. He goes on to provide further details in that regard.

72 Mr Smith said also at par 80 that upon the execution of the deed of variation on 30 September 2002 there ceased to be a requirement for the IBN Charitable Foundation to have a traditional owner register and thereupon the trustee ceased to maintain the traditional owner register. At all times during the period for which the trustee did maintain the traditional owner register for the IBN Foundation No 1, the traditional owner register included on it a substantial number of Fortescue Banjyma people.

73 Mr Smith went on to say that for the purposes of compiling the FAF traditional owner register, the trustee initially adopted the traditional owner register which had been compiled for IBN Foundation No 1. Since then the traditional owner register for the FAF Deed has been modified from time to time as and when new applications for membership have been approved or individuals have elected to leave the IBN group or have died. Mr Smith asserts at par 82 that those members of the traditional owner register who are identified as Fortescue Banjyma have the word 'Fortescue' next to their names in the register.

74 Mr Smith said further at par 88 that Fortescue Banjyma people have participated in cash distributions from the interim trust, from the IBN Foundation No 1 and from the IBN Financial Assistance Foundation. Some of these distributions were made direct to such peoples and some have been made via representative corporations. It has been widely known amongst the IBN group that Fortescue Banjyma people have been receiving such cash distributions and at no stage has any member of the IBN group questioned the entitlement of the Fortescue Banjyma to participate in such cash distributions.

75 As a consequence of the events in 2004, including the challenge to the course proposed by the trustee concerning the meaning of the term 'Bunjima', the trustee commenced proceedings by way of an originating summons dated 13 August 2007 (CIV 1807 of 2007) pursuant to s 92 of the Trustees Act 1962 (WA).

76 Section 92 of the Trustees Act provides for a trustee to ask the court for directions and reads as follows:

(1) Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.

(2) Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

77 The originating summons issued by the plaintiff corporation as trustee makes provision in pars 1 and 2 for representation and consolidation. Relief is sought as follows:

1. Directions be given by this Honourable Court under section 92 of the Trustees Act 1962 (WA) to the Plaintiff as trustee regarding its administration of the IBN Financial Assistance Foundation (created by deed titled 'IBN Financial Assistance Foundation Trust Deed' dated 14 December 2002 ('Trust Deed')) as to whether certain persons who are members of the Banjyma (or Bunjima) Language Group, being persons described or known as 'bottom-end Bunjima' or 'Fortescue Bunjima' have been properly identified by the Plaintiff as:

(1) 'Bunjima', and

(2) 'Traditional Owners', whether as 'Deemed Traditional Owners' or 'Identified Traditional Owners',

As those terms are defined and used in the Trust Deed.

1. A declaration that the term 'Bunjima' in the IBN Financial Assistance Foundation Trust Deed dated 14 December 2002 ('Trust Deed') includes any person being:

(1) a member of the Banjyma (or Bunjima) Language Group;

(2) a person known or described as 'bottom-end Bunjima' or 'Fortescue Bunjima';

(3) a person who has native title to any part of the 'Claim Area' under common law, or who has an entitlement under Aboriginal Tradition to the use or occupation of any part of the 'Claim Area'; and

(4) recognised as a member of the 'IBN Group' as that term is defined in the Trust Deed as varied by the Deed.

1. A declaration that the term 'Traditional Owners' in the IBN Financial Assistance Foundation Trust Deed dated 14 December 2002 ('Trust Deed') includes any person being:

(1) a member of the Banjyma (or Bunjima) Language Group;

(2) a person known or described as 'bottom-end Bunjima' or 'Fortescue Bunjima';

(3) a person has native title to any part of the 'Claim Area' under common law, or who has an entitlement under Aboriginal Tradition to the use or occupation of any part of the 'Claim Area', and

(4) recognised as a member of the 'IBN Group' as that term is defined in the Trust Deed.

1. In the alternative, that directions be given by this Honourable Court under section 92 of the Trustees Act 1962 (WA) to the Plaintiff as trustee regarding its administration of the IBN Financial Assistance Foundation that the definition of 'Bunjima' at clauses 30 of the deed titled 'IBN Financial Assistance Foundation Trust Deed' dated 14 December 2002 should be amended in the following terms:

...'Bunjima' ... means the people who are from time to time members of the Aboriginal peoples known as the Bunjima being the persons who are by Aboriginal Tradition entitled to the use or occupation of any part of the Claim Area irrespective of whether or not the traditional entitled is qualified as to place, time, circumstance, purpose, or permission and includes those persons, if any, having native title thereto under common law, and the later native title holders includes those people who are members of the Aboriginal Peoples known as the Bantikura Banjyma and the Wirrilmarra Banjyma (otherwise known as the bottom end Banjyma) who regard themselves as part of the IBN Group and who are accepted as members of the IBN Group.

78 I note in passing that the plaintiff has now made it clear that it abandons any order for relief of the kind reflected in par 6 of the originating summons. The issue between the party concerns essentially the correct interpretation of the trust deeds in question. In the course of addressing that issue parties have filed various affidavits.

79 It follows from earlier discussion that, as I do not intend to make findings of fact in this matter, it is not necessary for me to review the affidavit evidence before me in its entirety. However, with a view to balancing the narrative, and with a view to facilitating an understanding of the contentions made by the respective parties, it will now be useful to turn to the affidavit of Keith Lethbridge sworn 30 September 2008, being an affidavit filed on behalf of the third defendant almost 12 months after the proceedings were commenced.

80 The deponent said in his affidavit that he is the chairperson of the third defendant. He notes that the word Banjyma is sometimes Bunjima. His affidavit is sworn in response to matters set out in the affidavit of Mr Smith and to answer the question of whether the Milyuranpa Banjyma people, also called top-end Banjyma, are a separate language group to the Bantikura Banjyma and the Wirrilmarra Banjyma known as the bottom-end Banjyma and/or Fortescue Banjyma. Further, his affidavit is directed to answering the question of whether the distinction just referred to was known at the time of the deed of variation and, further when the original deed and MAC Agreement were entered into.

81 It is said in the Lethbridge affidavit at par 14.4 that the Milyuranpa Banjyma people have always been a distinct and separate language group and, in their own right, have been actively involved in native title issues since the advent of native title law. He confirms that to reflect the cooperation between the language groups a negotiating body called the Gumala body was formed.

82 It is said at par 14.10 to par 14.12 that the dispute about who connected with different parts of the Banjyma land caused the division which resulted in the creation of a middle Banjyma group consisting of members from both top and bottom-end Banjyma groups. This group formed the Banjyma Aboriginal Corporation (BAC). It is said that from Mr Lethbridge's involvement in these matters, he is aware that the bottom-end members of BAC (the Fortescue Banjyma people) had their own aspirations and did not wish to represent only the one segment of the claim area which was bottom-end land, but presumed to speak for top-end Banjyma peoples' land as well.

83 It is said that there were a lot of amendments to the IBN native title claim for the purposes of establishing a clear distinction between the Milyuranpa Banjyma people representing the top-end portion of the land and the Martu Idja Banjyma people representing the bottom-end Banjyma people. However, a portion of Martu Idja Banjyma people were still attached to the Milyuranpa Banjyma people through the intermarriage of Charlie Smith and Helen Smith, his wife.

84 Mr Lethbridge goes on to refer to the establishment of the MIB Corporation. Through the MAC Agreement negotiations, Mr Lethbridge understood that BHP recognised the situation between the two Banjyma groups: the Milyuranpa Banjyma people and the Martu Idja Banjyma people. In his view this fact is established by BHP negotiating separately with the two Banjyma groups and offering the groups two separate deals in respect of Area C.

85 As to the assertion by Mr Smith that the terms 'top-end Banjyma' and 'bottom-end Banjyma' are merely adopted as 'convenient' descriptions of the separate groups being the Milyuranpa Banjyma people and the MIB group, Mr Lethbridge says the statement is incorrect. These terms have been used for many years to identify those separate groups. He considers that Mr Smith and the directors of the plaintiff company are looking for an excuse to amalgamate bottom and top-end Banjyma people and blur the distinction between the two groups.

86 Mr Lethbridge goes on to say that the IBN native title claim was lodged to benefit the Milyuranpa Banjyma people to the exclusion of all bottom-end Banjyma people; that is, excepting so far as any such person was an original claimant under the IBN native title claim or has otherwise been accepted as a legitimate claimant by the Milyuranpa Banjyma people. At the time of entering into the deed of variation nothing was said to the Milyuranpa Banjyma people proposing the broadening of the class of beneficiaries to the entire Fortescue Banjyma group or any other group outside those defined in the original deed.

87 Mr Lethbridge says at par 38 there was an exception made in relation to the original Fortescue Banjyma IBN native title claimants because they had initially made it known that they wanted to stay part of the IBN native title claim. As such, the original Fortescue Banjyma IBN native title claimants have remained IBN native title claimants.

88 Mr Lethbridge says further at par 42 that the MIB people and the Milyuranpa Banjyma people have now each concluded negotiations with BHP and the respective agreements have been signed. It is only now that the Fortescue Banjyma group is putting forward its position. The negotiations with BHP are over, so the Fortescue Banjyma group is too late to have the option of discussing its issues with BHP. Instead, the Fortescue Banjyma people are endeavouring to reap rewards from the deal that the Milyuranpa Banjyma people worked on.

89 As to the events of December 2004, Mr Lethbridge says that members of IBN Corporation did not agree to amend the definition of 'Banjyma' in the IBN Charitable Foundation Deeds to also include Bantikura Banjyma and Weerilimarra Bantikura Banjyma people.

90 Mr Lethbridge concludes in par 53 by saying that the Milyuranpa Banjyma, the upper-end Banjyma people are a separate language group and have their own land area to which they have traditional ownership. Further, the Milyuranpa Banjyma, the upper-end Banjyma separate identity and land ownership rights were recognised prior to the execution of the MAC Agreement, the original deed and the deed of variation. In that regard, he refers specifically to the definition of 'Banjyma' in the dictionary of the original deed and the deed of variation.

91 In the months following the filing by the third defendant of the Lethbridge affidavit the parties exchanged correspondence and written submissions bearing upon the issues raised by the plaintiff's originating summons.

92 There is a considerable degree of repetition in these documents as each party maintained its stance in regard to the central interpretation issue as to what is the proper construction of cl 30 of the deed of variation and the FAF Deed which contains a definition of the term 'Bunjima'. I will not attempt to cover all the matters addressed in those exchanges but will focus only upon certain points that appear to have a particular relevance to the application presently made by the plaintiff for leave to discontinue the subject proceedings.

93 The plaintiff asserted that by the proceedings it was seeking to clarify whether certain persons who are members of the Banjyma (or Bunjima) language group had been properly identified by the plaintiff trustee as 'beneficiaries' for the purposes of the two trusts; that is, the IBN Charitable Foundation and the IBN Financial Assistance Foundation (or FAF Foundation). It was said at that stage (by the plaintiff's written submissions dated 5 December 2007) that the trusts employed a number of terms which might be considered ambiguous in respect of the IBN Charitable Foundation (created by the original deed as subsequently varied by the deed of variation) as to whether certain persons who are members of the Banjyma (or Bunjima) language group, being persons described or known as bottom-end Bunjima or Fortescue Bunjima, have been properly identified by the plaintiff as 'Bunjima', members of the 'community' and 'beneficiaries' as those terms are defined and used in the document.

94 It was said further that in respect of the FAF Deed there might be an ambiguity as to whether certain persons who are members of the Banjyma (or Bunjima) language group, being persons described or known as 'bottom-end Bunjima' or 'Fortescue Bunjima' have been properly identified by the plaintiff as 'Bunjima' and 'traditional owners' (whether as 'deemed traditional owners' or 'identified traditional owners') having regard to the way in which those terms are defined and used in the FAF Deed.

95 Having regard to previously decided cases such as Boranga v Flintoff as Trustee for the KP & GJ O'Keefe Family (1997) 19 WAR 1, the plaintiff contended that the primary consideration is to discover the intentions of the parties from the words of the relevant instruments. If the words used are unambiguous the court must give effect to them. Where the words used are ambiguous, evidence of surrounding circumstances is admissible to assist in the interpretation of the instrument. As appears from the plaintiff's submissions dated 5 December 2007, the plaintiff accepted that a number of key terms used in the trust deeds may be considered ambiguous. This was the plaintiff's stance prior to the filing of the lengthy Lethbridge affidavit by the third defendant in late 2008. If it is determined that the use of the terms 'Bunjima' and 'traditional owner' are ambiguous then the history of the IBN native title claim and the MIB native title claim, their origins in the original joint native title claim and the purpose of the MAC Agreement become relevant.

96 Further, the plaintiff contended that even if the terms were unambiguous the terms of the MAC Agreement must be relevant to the construction of the trust deeds, because the two trusts the subject of the present proceedings were created as a direct result of the MAC Agreement, and the trustee's legal obligations under the trusts were subject to the terms of the MAC Agreement. The MAC Agreement and those trusts were created in the context of two competing native title claims, the IBN native title claim and the separate native title claim lodged by the Martu Idja Banjyma people known as the MIB native title claim. The deed of variation cannot be understood without reference to both the MAC Agreement and the original deed.

97 The third defendant by its written submissions dated 17 October 2008 observed that the relief sought by the plaintiff in the originating summons in par 3 and par 6 was not in the nature of advice in respect of the ascertainment of a class of beneficiaries but, rather, the determination of a substantive issue in relation to the interpretation of the original deed and deed of variation including, radically, rectification. Further, in any event, crucially, the issues raised by the summons were in substantive contest between the plaintiff and the third defendant on behalf of the beneficiaries represented by the third defendant. Accordingly, the plaintiff was 'in error in seeking relief under s 92 of the Trustees Act'.

98 It was said further that the court will only allow the procedure contemplated by s 25 of the Supreme Court Act and O 58 r 10 of the Supreme Court Rules to be used in cases where the court has before it an instrument the construction of which is capable of determination by the instrument itself. If questions of disputed evidence are involved the proper way to proceed is by writ seeking a declaration: See City of Belmont v Link Interiors Pty Ltd [2001] WASC 64.

99 The third defendant went on to submit that the relief sought in the originating summons in par 4 and par 5 raised issues of evidence which were in contest. For example, fundamental to the plaintiff's case was the contest as to whether the Milyuranpa Banjyma language group was and was known to the contracting parties at the time the parties entered into the original deed or the deed of variation to be a distinct language group, organised society, tribe or group whose claimed native title rights were separate to other parties. It was therefore inappropriate for the plaintiff to proceed by way of originating summons for the declaratory relief sought in par 4 and par 5 of the summons.

100 At that stage the third defendant summarised its position in this way at par 4 of the submissions. The relevant payments made under the MAC Agreement were settled on the trustee and a trust was created and governed by the terms of the original deed. The original deed was varied by the deed of variation by substituting the terms of the original deed by the new deed. From the date of the deed of variation the charitable trust (the subject of action CIV 1808 of 2007) has been governed by the terms of the new deed which can be taken as having effect from the date the trust was established.

101 The definition of 'Banjyma' in the new deed, the third defendant contended, is clear and unambiguous. Further, in so far as any person was entitled to be a beneficiary under the original deed, that person's status was protected by cl 3 of the deed of variation and cl 10 of the new deed. More particularly, if the trustee believed other persons may qualify as beneficiaries under the new deed, the new deed expressly provides the mechanism under which the trustee should proceed to identify whether that party is a beneficiary.

102 It was then said that in these circumstances no application should be made to the court for guidance or otherwise until such time as the trustee has undertaken and exhausted the steps expressly provided for in the new deed for the determination of the beneficiaries. The trustee has not yet undertaken these steps.

103 The plaintiff by its submissions in reply dated 21 November 2008 continued to assert that the proceedings were a suitable means of resolving the matters in issue because in this case the directions sought by the trustees go directly to ascertaining the classes of beneficiary under both the FAF Foundation (OS1807) and the IBN Charitable Foundation (OS1808) by the construction of the two relevant deeds. In neither case was there any allegation of a breach of trust by the trustee plaintiffs (par 102).

104 However, in these reply submissions it was made clear on behalf of the plaintiff that the trustee did not press par 6 in the originating summons in each case concerning rectification (par 191 and par 195). The plaintiff said also that it wished to be heard on the admissibility of the Lethbridge affidavit which the plaintiff submitted was largely, if not entirely, inadmissible. However, it was anticipated that there would be an order made for mediation with the result that any costs associated with submissions as to admissibility should not be incurred without having explored the prospect of a mediated outcome.

105 Let me now turn to certain copy letters that were exhibited to the affidavit of Marcus John Ahern sworn 7 May 2009 which was filed on behalf of the third defendant. The contents of these letters assist in understanding the respective positions of the parties as to both the interpretation issue and as to the suitability of the present proceedings as a means of resolving that issue.

106 Exchanges between the parties by letter included a facsimile letter dated 1 April 2009 from the defendants' solicitors containing a so-called 'interim offer' pending the ultimate resolution of the proceedings. This proposed an arrangement for the representation of the third defendant's point of view by the appointment of certain independent directors and traditional owner directors and proposed also that the plaintiff make distributions from the trust funds to the beneficiaries, but not so as to include a person who would not be entitled if the definition of Banjyma in the trust deeds was restricted to the Milyuranpa Banjyma language group in accordance with the meaning of that term contended for by the third defendant.

107 By letter dated 8 April 2009 the plaintiff's solicitors rejected the interim offer. The letter said that the plaintiff was not willing to treat any members of the Bunjima language group differently with regard to any distribution that it may make. It was said that certain IBN members of the Bunjima language group were not Milyuranpa Banjyma and have, until recently, been accepted by all representative corporations as 'Bunjima' and 'beneficiaries' under the IBN Foundation. It was only the third defendant that disputed their status now.

108 In the course of making other observations about the matters in issue the plaintiff's solicitors commented:

It is noted that the Third Defendant appears to have specifically accepted that there were members of the IBN Group, the Claim Group, who were Banjyma speakers but who were not Milyuranpa Banjyma when it observed at paragraph 3.3.4 of its Submissions filed on 17 October 2008 that (emphasis added):

... In relation to the Banjyma language claimants who supported the IBN claim were principally drawn from or associated with the language group known as Milyuranpa or top end Banjyma ...

It does not appear to be in issue that the IBN Group, the Claim Group, for whose benefit the MAC Agreement was made, included bottom-end or 'Fortescue' Banjyma. Many of these IBN members are now represented by the Banjyma Aboriginal Corporation, the First Defendant.

109 It was in this letter that the plaintiff confirmed a change in its attitude to the suitability of the proceedings for directions brought pursuant to s 92 of the Trustees Act. It seems that this change of attitude had been voiced at a status conference before a registrar of the Supreme Court in the course of case management.

110 The plaintiff was said to have concerns regarding the appropriateness of the proceedings in their current form because of the matters raised by the third defendant in its affidavit evidence and submissions.

111 Reference was made to Dal Pont & Chalmers: Equity and Trusts in Australia and New Zealand (2nd ed) at 668, cited with approval by Barker J in Re Nilant [2004] WASC 7; (2004) 28 WAR 81 where it was said that the procedure for obtaining directions should not be used to determine substantive issues, such as issues of interpretation of the trust document which involve the question of breach of trust by any of the trustees or for resolving a contest between the trustees or other parties to a trust, and nor should it be used to determine respective rights of beneficiaries. These are matters in respect of which beneficiaries are entitled to initiate proceedings.

112 The plaintiff's solicitors then advised that the plaintiff would not agree to any proposal for the third defendant to adduce expert evidence or evidence that went to identifying who is Milyuranpa Banjyma or who has native title over Mining Area C as a matter of fact. The plaintiff's view was that the litigation solely concerned the construction of the definition of 'Bunjima' and associated terms under the Charitable Foundation and the FAF Foundation, not the application of that definition as a matter of fact.

113 The plaintiff was not prepared to accept that there was any contest as to a matter of fact that required expert evidence. If it were appropriate to engage in such a contest, then each of the representative corporations, including those representing the Innawonga and Niapaili, would need to be active participants given their original claims of native title in the Federal Court. The plaintiff would not consent to the matter being entered into the CMC list or to orders for the adducing of expert evidence.

114 The third defendant's solicitors responded by letters dated 28 April and 6 May 2009. It was said on behalf of the third defendant that the third defendant's proposal to adduce expert evidence was in aid of the proper construction of the two relevant deeds pursuant to the precept that, in undertaking the task of understanding what the parties intended by the words used, the court could have regard to the factual matrix or surrounding circumstances known or that ought reasonably to be known to the parties at the time the document was entered into. Evidence could be received as to the background against which the parties contracted, the genesis of the document, the aim of the document and the purpose or object of the document. Further, extrinsic evidence could be received to the extent necessary to resolve any ambiguity which was apparent on the face of the document or which arose when the document was applied to the circumstances.

115 It was said to follow that it would be necessary as an aid to construction in the present case for there to be evidence of whether the Milyuranpa Banjyma was in fact known to the contracting parties as a distinct language group and, accordingly, whether the definition in cl 30 of both trust deeds should be construed as being exclusive of that distinct language group.

116 The third defendant's solicitors described their client's position as follows:

That is, our client's position is that, when objectively reviewed, the surrounding circumstances indicate that at the relevant time, the parties to the said deeds knew or ought reasonably to have known that the use of the term 'Milyuranpa Banjyma' as part of the definition in the said deeds denoted the specific language group referred to and, accordingly, restricted the relevant class of beneficiaries to members of that language group.

117 The third defendant's solicitors referred also to their understanding that the plaintiff now accepted that there was an issue in relation to whether the proceedings should have been prosecuted by way of writ rather than originating summons. Accordingly, there was an issue whether the proceedings should have proceeded by way of pleadings with all normal interlocutory steps undertaken.

118 It was said further that in determining the probabilities of whether Mr Smith's evidence was correct or Mr Lethbridge's evidence was correct in relation to whether the term 'Milyuranpa Banjyma' would have been known or would reasonably have been understood to be a reference to a distinct language group, the court may be assisted by expert evidence.

119 It was against this background that the plaintiff issued the chamber summons mentioned earlier (dated 4 June 2009) seeking orders for discontinuance pursuant to O 23 r 2(3) of the Rules of the Supreme Court.

120 As I have indicated, the grounds for the application reflected the plaintiff's reconsideration of its position and the change of attitude foreshadowed in the earlier correspondence. The grounds for the application were said to be that the plaintiff could not continue the proceedings pursuant to s 92 of the Trustees Act for directions in circumstances:

(1) Where in its view there is no longer a requirement for the court to give directions under the Trustees Act 1962 (WA);

(2) There is a real possibility that the proceedings may become fragmented or engage matters other than those that gave rise to the proceedings and upon which the proceedings are based;

(3) The associated issues of costs, delay and distraction of the plaintiff trustee from the tasks of administering the trusts created by the trust deeds; and

(4) Where the plaintiff's trustee fiduciary duties require it to discontinue.

121 The application for leave to discontinue was supported by the affidavit of Grant David Bussell sworn 4 June 2009. The deponent said that he is the Chief Executive Officer of the plaintiff corporation and has served in that position since 13 April 2006. For close to a year prior to that he was a project officer with the plaintiff and was familiar with its systems. His duties as Chief Executive Officer includes supporting the Board's governance functions, the maintenance of the traditional owners register and the management of the plaintiff's community programmes and investments.

122 Mr Bussell then turned to the history of the dispute including reference to matters covered by the Smith affidavit and to the fact that the plaintiff is acting as trustee in respect of the IBN Charitable Foundation and the Financial Assistance Foundation under and by virtue of the relevant trust deeds. These trusts were created to administer royalty payments made by mining joint venturers under the MAC Agreement.

123 Mr Bussell asserted that the present proceedings concern the meaning of the words 'Bunjima' and 'beneficiaries' used in the trust deeds administered by the plaintiff and, particularly whether 'Bunjima' refers only to Milyuranpa Bunjima or can include any Banjyma person (such as a Fortescue Banjyma person) whose common law native title claim to the land in Mining Area C has been recognised by his or her participation as a claimant in the original native title claim in the Federal Court or their subsequent recognition as a 'traditional owner' by such claimants and his or her continuing participation as beneficiaries under the trusts. He noted that the dispute regarding the meaning of these terms did not arise until on or about 11 December 2004 at a general meeting of the IBN group.

124 He went on to say that prior to 11 December 2004 the plaintiff operated various community programmes including Christmas payments to beneficiaries under the Financial Assistance Foundation (with the last such distribution being made in December 2004), the Enterprise Development Programme that provided assistance to beneficiaries for setting up businesses, the Sport and Recreation Programme, the Cultural Recording Programme, the Education and Training Programme, the Funerals Programme and the Crisis and Hardship Programme. He said that to the extent that these community programmes benefit entire communities, funding may be allocated under the Charitable Foundation, but to the extent that the assistance is provided to an individual the community programmes are funded under the Financial Assistance Foundation.

125 Mr Bussell said that in or about October 2005 the plaintiff decided that it had no choice but to suspend these programmes because of the dispute over those entitled to benefit under the trusts.

126 Mr Bussell said that the potential of the suspended community programmes to benefit IBN members and their communities has not been realised to date as a result of the present proceedings. The plaintiff has processed some 2,000 applications in its Funerals and Crisis and Hardship Programmes to date. It has become increasingly anxious that it be in a position to resume making Christmas payments to beneficiaries because that payment is the primary form of assistance to IBN members. Currently the plaintiff's activities pursuant to the trusts under the Charitable and Financial Assistance Foundations include the Funerals Programme, and the Crisis and Hardship Programme. On or about 3 November 2006 the Board decided to reactivate the Cultural Recording Programme in light of the risk of elders passing away prior to transmitting their knowledge.

127 It is said by Mr Bussell that if leave is granted for the proceedings to be discontinued, the Board of the plaintiff will implement the community programmes mentioned earlier in accordance with its strategic plan. Further, the plaintiff has requested proposals from university bodies to carry out a multi-disciplinary review of best practice in indigenous community development programmes in Australia and internationally to inform the development of the plaintiff's strategic plan and the community programmes when the normal business of the plaintiff as a trustee can resume.

128 Mr Bussell went on to say that he organised a meeting of the Board on 18 May 2009 for the sole purpose of considering the future conduct of the proceedings by the plaintiff. He noted that the proceedings had been considered at a number of earlier board meetings. The plaintiff had sought at all times to ensure that the proceedings were conducted quickly and effectively by, amongst other things, paying the actual legal costs of the third defendant, seeking and obtaining a representative order, seeking to agree a process with the third defendant whereby the issues that gave rise to the proceedings could be resolved without the need to resolve any contest of fact as between the plaintiff and the third defendant or the need to adduce expert evidence concerning matters of cultural identity.

129 According to Mr Bussell, the Board was of the view that it had had the benefit of the evidence and arguments advanced by the third defendant in its affidavit evidence and submissions. The Board was satisfied that the plaintiff's interpretation of the trust deeds, as expressed in its submissions, was unambiguous because of the composition of the claim group at the time that it entered into the MAC Agreement, the recognition of all of the members of the claim group as traditional owners of the land in Mining Area C by the trusts and the self-defining mechanism for the recognition of traditional owners by members of the claim group in IBN Foundation No 1 and subsequent trusts.

130 Further, Mr Bussell said, the mechanism for recognition of traditional owners meant that determining membership of the IBN group did not require the plaintiff to make any factual inquiry or contest as to cultural identity or traditional connection of any indigenous people from any or all of the Innawonga, Banjyma or Niapaili people with the land in Mining Area C who applied for membership, because this was determined by traditional owners and entry on the traditional owner register. Accordingly, the Board concluded that there was no longer any need for directions from the Supreme Court as to the definition of 'Bunjima' and 'beneficiaries' in the trust deeds.

131 The Board also considered the impact of the delay in the proceedings, the operations of the plaintiff as a trustee and the suspension of the community programmes mentioned earlier. The Board looked at the prospective difficulties faced by the plaintiff if it were drawn into contests of fact raised by the third defendant, and the consequent need to join additional parties, in order to obtain a binding decision by the court, and the consequent need to expend significant further financial and administrative resources of the plaintiff on the proceedings.

132 Mr Bussell said that the Board then passed unanimously the following resolution regarding the manner in which the Board understood, and intended to apply, the terms of the trusts:

That the terms Bunjima and Beneficiaries in the Trust Deeds include:

(a) any person being a member of the Banjyma (or Bunjima) Language Group;

(b) a person known or described as bottom end Bunjima or Fortescue Bunjima;

(c) a person who has native title to any part of the Claim Area under common law, or who has an entitlement under Aboriginal tradition, to the use or occupation of any part of the Claim Area; and

(d) a person recognised as a member of the IBN Group as that term is defined in the Trust Deeds.

And to give instructions immediately to IBN's solicitors to apply to the Supreme Court to discontinue the Proceedings.

133 In due course, after lodgement of the plaintiff's chamber summons for discontinuance, the solicitors for the parties filed lengthy written submissions bearing upon the application. These submissions are lengthy and I will not endeavour to traverse the matters raised in the submissions in their entirety. However, before turning to the submissions in summary form I note that in addition to the Bussell affidavit the plaintiff seeks to rely upon the affidavit of Kathryn Barras sworn 11 August 2009.

134 The Barras affidavit is said to be sworn in response to contentions raised in the third defendant's submissions. It is said that the Board of the plaintiff is unable to consider making financial distributions under the Financial Assistance Foundation due to the third defendant's repeated indications that it would seen injunctive relief were the plaintiff to continue to do so. Various letters are exhibited to the affidavit which are said to corroborate that assertion.

135 The third defendant seeks to rely upon the affidavit of May Byrne sworn 11 August 2009. She is the Liaison Officer of Milyuranpa Banjyma Aboriginal Corporation, described as MBAC. It is said that her affidavit is directed to the financial capacity of MBAC to fund the progress of these proceedings and exhibited to the affidavit is a copy of a general report for the financial year ending 30 June 2008 provided by MBAC as an Aboriginal Corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

136 It is said that MBAC's income for the financial year ending 30 June 2008 was $30,475.82. Its total expenditure was $28,718.48. The majority of MBAC's income is received from the plaintiff trustee. The total value of MBAC's current assets was $19,166.88. The members of MBAC are mostly people living in remote parts of Australia and do not possess substantial assets or income.

137 It is said further in the Byrne affidavit that in the absence of funding from the plaintiff as trustee or from another third party MBAC would not have been able to act as the third defendant and contradictor in these proceedings. To fund either the continuance of MBAC as the third defendant and contradictor, or MBAC becoming the plaintiff with carriage of the proceedings, will require funding from the trustee or from a third party. The deponent confirms that until June 2009 the trustee had provided MBAC with funding in advance to enable it to be legally represented in the proceedings as the third defendant and contradictor.

138 It is said in the Byrne affidavit that, having regard to recent events, MBAC is now concerned that the trustee will, without notice, withdraw all financial support for MBAC in relation to the proceedings and MBAC would then be unable to pay its solicitor's fees.

139 It will now be useful to look at the legal principles bearing upon discontinuance in more detail.

140 I noted in earlier discussion that leave is sought pursuant to O 23 r 2(3) of the Rules of the Supreme Court. I described the rule in summary form. The full text of the rule is as follows:

Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court, but the court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause or complaint to be struck out.

141 In Fox v Star Newspaper Co Ltd [1898] 1 QB 636 Chitty LJ made certain observations concerning the operation of the English rule which remains pertinent. He observed that the principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject matter.

142 Further consideration was given to the English rule in Covell Matthews & Partners v French Wools Ltd (1977) 2 All ER 591. In that case tenants were granted leave to withdraw the application for a new tenancy on terms that the grant of leave to withdraw was without prejudice to the landlord's contention that a binding agreement for the grant of a new tenancy had been reached. In the course of his judgment Graham J made these observations at 594:

The principles to be culled from these cases are, in my judgment, that the court will, normally at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave, if it can without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved.

143 The requirement for prior leave of the court prior to discontinuing any proceeding in which pleadings are not to be exchanged is evident in cases such as Pharmaust Ltd v Advance Healthcare Group Ltd [2007] WASC 125, being a case decided in this jurisdiction. In that case the plaintiff was granted leave to discontinue based upon a supervening event, namely, the holding of a company meeting, which rendered the substantive relief sought by the plaintiff futile. Both claim and counterclaim were to be discontinued on the basis that there would be no order as to costs.

144 In SCI Operations Pty Ltd v TPC; Visy Board Pty Ltd v Attorney-General (Cth) [1984] FCA 52; (1984) 53 ALR 283 Sheppard J observed at 353 to 354 that in granting leave to discontinue the court has a wide discretion to do justice between the parties. If a party seeks to discontinue a court should lean towards giving leave to that party unless to do so will cause manifest injustice to his opponent.

145 In Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254; (2007) 35 WAR 190 Martin CJ made it clear in respect of proceedings commenced by originating process against liquidators that the plaintiff's purported discontinuance of the proceedings by notice was ineffective because the prior leave of the court was required. His Honour referred to a number of previously decided cases including Fox v Star Newspaper Co Ltd and the Covell Matthews case. He observed that it is clear that the court has power to impose conditions, or to require an undertaking, as a term of the grant of leave to discontinue.

146 In reviewing the principles bearing upon discontinuance it is also necessary in the circumstances of the present case to give consideration to the nature of the proceedings in respect of which leave to discontinue is sought.

147 I mentioned in earlier discussion that the court's jurisdiction under s 92 of the Trustees Act was considered by Barker J in Nilant at [39] et seq, and at [41].

148 It will now be useful to refer to this at greater length. His Honour cited with approval a passage from Dal Pont & Chalmers: Equity and Trusts in Australia and New Zealand (2nd ed) at 668:

This statutory jurisdiction is intended essentially for private advice by the court to trustees as to what course of action they should follow where they are in doubt as to the propriety of the action contemplated. The applicant must place before the court all relevant evidence such that the court is fully informed as to the matter in issue. Three situations in which approach to the court is particularly useful are where: (a) the issue is whether legal proceedings ought to be instituted or defended; (b) it is desired to effect an early distribution of an estate; and (c) the trustee is in doubt as to the extent of her or his powers under the trust instrument.

Types of advice which may be sought include questions in connection with the rights and interests of beneficiaries or creditors, jurisdictional queries, whether further inquiries should be made in certain circumstances, the ascertainment of any class of beneficiaries or creditors, the furnishing of accounts, the settling of minor administration problems, and the approval of dealings with the trust property.

The procedure should not be used to determine substantive issues, such as issues of interpretation of the trust document which involve the question of breach of trust by any of the trustees; for the purpose of securing additional powers for the trustees; and for resolving a contest between the trustees or other parties to a trust. Nor should it be used to determine respective rights of beneficiaries. These are matters in respect of which beneficiaries are entitled to initiate proceedings.

149 It will now be useful to draw together the threads of this review.

150 It emerges from a consideration of the plaintiff trustee's grounds for seeking leave to discontinue and from a review of authorities bearing upon the nature of the present proceedings and the circumstances in which leave to discontinue will be allowed that there are various issues to be dealt with. A central feature of the circumstances giving rise to the present application is the resolution of the plaintiff Board on 18 May 2009 evincing a decision by the Board to adopt a certain interpretation of the key words in the instruments in question and to proceed accordingly. It is said that the present proceedings are not a suitable vehicle to resolve the dispute between the parties and, in any event, the effect of the resolution is that they are no longer necessary. Moreover, a plaintiff should not be compelled to litigate or pursue a claim against its will, with the result that leave to discontinue should be allowed.

151 Against this background, it seems that the central issues to be determined are, first, what existing advantage, if any, obtained in the proceedings to date will the third defendant lose if a discontinuance is granted to the plaintiff; second, what manifest injustice, if any, needs to be prevented if a discontinuance order is granted to the plaintiff; and, third, if any such advantage or injustice is identified by the court can it be remedied by the imposition of conditions.

152 Let me now turn to the submissions of the parties.

153 The plaintiff's submissions in support of discontinuance were dated 7 August 2009. They were followed later by the plaintiff's submissions in reply dated 11 August 2009. In its reply the plaintiff sought to deal with certain aspects of the third defendant's submissions not covered by the plaintiff's original submissions. In particular, the plaintiff sought to deal with a submission by the third defendant (at par 30 of its submissions dated 30 July 2009) that the plaintiff as trustee be directed to prosecute the proceedings to a final determination or, in the alternative, that orders and directions be made which would have the effect of establishing the third defendant as the plaintiff or otherwise as the party with the carriage of the action.

154 I will cover the plaintiff's various submissions in summary form, bearing in mind that the background to the dispute and procedural history of the matter has been dealt with fully earlier in these reasons for decision.

155 The plaintiff noted that it was required to seek leave to discontinue under O 23 r 2(3) because the parties joined issue by exchanging affidavits. It was said, having regard to observations made by the Chief Justice in Heartlink, that in determining whether leave to discontinue should be granted, the question is whether any particular terms or conditions should be imposed in order to prevent manifest injustice to, or the loss of some advantage by the opposing party.

156 The plaintiff submitted that the third defendant was seeking to agitate issues that were not properly dealt with in the context of an application by a trustee for directions pursuant to s 92 of the Trustees Act. Moreover, the third defendant was seeking to pursue contested issues of fact by way of expert evidence and to agitate issues for further and better discovery which were entirely foreign to an application by a trustee for directions under the Trustees Act.

157 It was said that if the third defendant sought to invoke the court's jurisdiction against the plaintiff as a trustee then it must bring an action that particularises its allegations. The application for discontinuance cannot be used by the third defendant as a platform for such an action against the plaintiff as trustee, nor should the present proceedings be turned into such an action. It was entirely a matter for the third defendant as to whether it decided to bring such proceedings.

158 The plaintiff's position was, as reflected in the grounds for discontinuance set out in its chamber summons, that, having regard to the 18 May resolution of the Board of the plaintiff corporation, there was no longer a requirement for the court to give directions pursuant to s 92 of the Trustees Act. Moreover, having regard to the principles reflected in Covell Matthews and other cases the plaintiff ought not to be compelled to litigate against its will.

159 It was said further that there was a real possibility that the proceedings would become fragmented or engage matters other than those that had given rise to the proceedings initially. The associated issues of costs, delay and distraction of the plaintiff trustee from the tasks of administering the trust created by the trust deeds weighed against continuance of proceedings when the directions sought initially were no longer required. For all these reasons, the plaintiff's trustee fiduciary duties weighed in favour of discontinuance. It was said also, as indicated by the facts and matters referred to in the supporting Bussell affidavit, that it was only by discontinuance that the plaintiff could properly and effectively resume the community programmes it wished to proceed with and for which it was responsible as a trustee corporation.

160 The plaintiff submitted that the third defendant would not lose any advantage if the proceedings were discontinued. It could not be said that any manifest injustice would occur if the proceedings were discontinued on the application of the plaintiff, bearing in mind that the plaintiff had met the third defendant's legal costs of the proceedings to date and had agreed to meet the third defendant's costs up to and including the costs of the application to discontinue.

161 It was said that the court did not have to hear or resolve the issues in the substantive proceedings in order to resolve any question of injustice associated with the application for discontinuance. The court is simply required to address its attention to the position of the parties in the litigation at the time of the application for discontinuance. It must be for the respondent to an application for discontinuance to identify any injustice or advantage contended for. This is because discontinuance is a power that the court readily exercises in favour of the applicant subject to the court's enquiry whether there is some injustice thereby depriving the respondent of an advantage it has already obtained in the litigation. There was undoubtedly a power to impose conditions but there was no presumption in granting an application that the court was obliged to impose any conditions in aid of an order that allowed for discontinuance.

162 The plaintiff submitted that there was a fundamental difference between opposing an application for discontinuance and seeking to bring proceedings against a trustee in respect of an alleged default. The court has an inherent jurisdiction to supervise trusts and powers pursuant to s 94 of the Trustees Act to make appropriate orders to protect the interests of beneficiaries of a trust. However, these powers must not be confused with the power to give directions pursuant to s 92 of the Trustees Act and issues arising upon an application for discontinuance.

163 The plaintiff's 18 May resolution that it discontinue the proceedings is predicated on its satisfaction as to its construction of the relevant trust deeds having now had the benefit of the third defendant's submissions and affidavit evidence. The third defendant's position is essentially to transform the present proceedings from an application for directions under the Trustees Act into a contested proceeding that invokes the court's jurisdiction to supervise trusts and trustees. This would inevitably lead to the provision of pleadings and the resolution of contested matters of fact. It was said that the third defendant's submissions did not identify any existing advantage or manifest injustice for the purpose of determining the plaintiff's application to discontinue.

164 It was said further that the court could not direct the plaintiff to prosecute the proceedings to a final determination because the future circumstances affecting the proceedings could only be a matter of speculation. In any event, the third defendant had no application properly before the court for such orders. There is no basis for the court to allow the third defendant, in the course of an application by the plaintiff to discontinue, to change the nature of the proceedings entirely so that the third defendant effectively became the plaintiff in the proceedings or the party with the carriage of the action against the plaintiff corporation as trustee under the deeds.

165 It was said also that the third defendant's stance in seeking to oppose the application to discontinue was inconsistent with its previous stance that the proceedings should not have been brought. It was said that a submission by the third defendant that any distributions made by the plaintiff as trustee in the event of discontinuance would be irrecoverable or concerning the trustee or its directors' capacity to repay such distributions was unsupported by any evidence.

166 Let me now turn to the defendant's submissions.

167 The third defendant by its written submissions dated 30 July 2009 contended that the court had an unfettered jurisdiction to grant leave to discontinue. It was required to act in the manner best calculated to achieve justice as between the parties in the circumstances of the particular case before it: Ritz Hotel Ltd v Charles of the Ritz Ltd (No 8) [1987] 12 IPR 75. The defendant referred also to the principles reflected in Visy Board Pty Ltd v Attorney-General (Cth) and the Heartlink case.

168 The third defendant submitted also that the court has an inherent jurisdiction to supervise trusts and trustees and make appropriate orders to protect the interests of beneficiaries of a trust: Wendt v Orr [2004] WASC 28. Section 94 of the Trustees Act allows a beneficiary who is aggrieved by any act, omission or decision by a trustee to apply to the court to review the act or omission.

169 The defendant submitted that the central issue raised by the plaintiff as trustee by its originating summons was whether the trust deeds should be interpreted as defining the 'Banjyma' beneficiary group as including the group known as the Fortescue or Bottom End Banjyma.

170 The defendant submitted that having regard to the definition of Banjyma in the trustee deeds, the definition was inclusive only of the Milyuranpa or Top End Banjyma and exclusive of the Martu Idja Banjyma or Bottom End Banjyma or Fortescue Banjyma or the Bantikura Banjyma or Wirrilimarra Banjyma being the groups referred to in the trustee's originating summonses.

171 It was said that both parties contested that significant portions of the affidavit evidence relied upon by the other party were inadmissible generally and, more specifically, in aid of construction of written agreements or deeds. Various examples were given of the evidentiary issues in that regard.

172 It was said that the plaintiff as trustee has paid from the trust fund the legal costs it has incurred in initiating and prosecuting the present proceedings. Further, the trustee has paid from the trust funds the legal costs incurred by the third defendant as contradictor. It is estimated that the total cost to the trust fund of the proceedings is in excess of $500,000.

173 The defendant in its submissions referred to the 18 May resolution passed by the plaintiff's Board and to the fact that the Board had decided to give effect to the interpretation favoured by the plaintiff in the proceedings. However, the reasons given for the resolution did not explain why the arguments advanced by the plaintiff were preferred over the competing submissions or how the contest raised by the third defendant as to evidence to aid construction has been resolved. It was not clear whether the Board took into account that the third defendant's case in the proceedings has not yet been fully developed or finalised.

174 The third defendant submitted that when all the circumstances are viewed together leave is inappropriate because discontinuance will cause unfair prejudice to the third defendant. Further, and in any event, having regard to s 94 of the Trustees Act or the court's inherent jurisdiction it is appropriate for the court to direct the trustee to progress the proceedings to final determination. This should be done as part of the court's supervising role and to protect the beneficiaries under the trust deeds.

175 In the alternative, if the court determines it will not intervene to direct the trustee to prosecute the proceedings to a final determination, the third defendant seeks orders that it be made the plaintiff in these proceedings and it have the carriage of the proceedings to a final determination. In these latter circumstances, the third defendant seeks an order that its costs be paid from the trust funds. This course is necessary because the substantive issues raised relate to the correct interpretation of the trust deeds in the distribution of substantial benefits in accordance with the terms of the trust deeds. There is a legitimate contest by one group of beneficiaries as to the correct interpretation.

176 The third defendant submitted that it is not appropriate for the trust deed to determine all of those legal questions and complex issues by mere conferral and resolution of the Board. This is particularly so in circumstances where the trustee proposes to adopt the interpretation the Board prefers. Having commenced the proceedings to obtain a judicial determination of the issues, it is inappropriate for the trustee to abandon that process. This is particularly so where the third defendant maintains its opposition to the trustee's interpretation and has yet to be fully heard on all the issues raised.

177 The third defendant submitted further that if it is ultimately found in subsequent litigation that the trustee's interpretation is wrong, the trustee will be liable to repay the distributions wrongly made. In this case, any such distributions will be irrecoverable and neither the trustee nor its directors may have the capacity to repay to the trusts the distributions made.

178 The third defendant submitted that it would suffer the following specific prejudice if the proceedings are discontinued:

28.7.1 the issues raised by the proceedings will be left unresolved and are likely to be agitated in further proceedings;

28.7.2 the time, effort and its own cost invested in acting as contradictor and progressing these proceedings to date will be in whole (or partly) wasted;

28.7.3 the Trust Funds have been diminished by an estimated $500,000 in legal fees in relation to these proceedings, part of those funds would have been distributed to beneficiaries represented by the Third Defendant - those funds will have been (at least in part) wasted if the proceedings are discontinued and further separate proceedings commenced;

28.7.4 any distributions made by the Trustee pending the outcome of any fresh proceedings are likely to be irrecoverable and the part of those distributions which would otherwise have been paid to beneficiaries represented by the Third Defendant will be lost;

28.7.5 further to the preceding paragraph, the Trustee and or the directors of the Trustee do not or are unlikely to have the capacity to repay any distribution made to beneficiaries if the Court ultimately finds that the Trustee's preferred interpretation of the Trust Deed is wrong and, accordingly, any distribution made which would otherwise have been paid to beneficiaries represented by the Third Defendant is unlikely to be recovered and will be lost.

179 The third defendant submitted that in contested litigation the trustee could not take the position that the third defendant should be restricted in any way from challenging evidence it wished to place before the court. Whether other parties, including other named defendants, wished to be heard and have legitimate issues to raise is no reason for the Board of the plaintiff corporation to discontinue the present proceedings. The third defendant submitted that the way forward was to have the present proceedings determined expeditiously and entry of them on the CMC list of the Supreme Court may assist that process.

180 The third defendant in its submissions closed by setting out the orders proposed by the third defendant as follows:

1. In the circumstances, the Third Defendant submits the Trustee's application should be dismissed and the Trustee directed, until further order, (with liberty to apply on short notice) to prosecute the proceedings to a final determination. Further, the Court should order the proceedings are entered on the CMC List for supervision by an allocated List Judge. There need be no general order for costs.
2. As an alternative to the orders proposed in the preceding paragraph, the Third Defendant asks for orders that:

31.1 the Third Defendant be the Plaintiff in these proceedings and the Trustee be the Defendant;

31.2 the proceedings be entered on the CMC List;

31.3 the proceedings be listed for directions by the List Judge allocated to the proceedings;

31.4 until further order the Third Defendant is entitled to be indemnified for its reasonable costs of the proceedings from the Trust Funds, the Trustee to have liberty to apply on short notice in relation to this order.

181 The decided cases show that leave to discontinue should generally be granted so that a party seeking the leave is not forced to litigate against its will, unless the grant of leave will lead to manifest injustice or the loss of some advantage a party has already gained in the litigation.

182 In the present case, the plaintiff has come to a considered conclusion that the present proceedings are not a suitable vehicle to resolve the matters in issue between the parties because, as indicated by the passage in Dal Pont & Chalmers mentioned earlier, the s 92 procedure for directions should not be used to determine substantive issues which actually or potentially involve questions of breach of trust. These are matters in respect of which beneficiaries are entitled to take proceedings for declaratory relief or otherwise in which the issues will be defined by pleadings. This is particularly important when allegations of breach of trust may be accompanied by allegations of wrongdoing.

183 In addressing this issue, I must keep in mind, as noted in earlier discussion, that the third defendant was itself of the view initially (as appears from its submissions dated 17 October 2008) that the plaintiff was in error in seeking relief under s 92 of the Trustees Act.

184 In the present case, this view of the present proceedings, and the notion that they will not serve any real purpose, is underpinned by the plaintiff's 18 May resolution. This confirms that in the plaintiff's view, the present proceedings are no longer necessary because the plaintiff in its role as trustee, after a full consideration of materials bearing upon the interpretation issue, has arrived at a firm conclusion as to the meaning of the relevant terms.

185 For present purposes, as I indicated at the outset, it is not necessary for the court to determine or make any ruling upon the validity of the interpretation that the plaintiff, pursuant to its 18 May resolution, intends to act upon. It is sufficient to note that the plaintiff's position has been arrived at after careful consideration. It has an arguable case and there appears to be some support for its position in the materials before the court. Discontinuance will enable the plaintiff to proceed with its community programmes and to discharge fiduciary duties as trustee. Accordingly, prima facie, pursuant to the precept that a party should not be forced to litigate against its will, I am of the view that leave to discontinue should be allowed upon the grounds set out in the chamber summons dated 4 June 2009 subject to determining whether the grant of leave will give rise to any manifest injustice to the third defendant or deprive that party of an advantage gained already in the litigation.

186 In the circumstances of the present case, I am not persuaded that these latter considerations weigh against the discontinuance. To date, the third defendant's costs have been met by the plaintiff and it will not be out of pocket in that regard. No rulings have been made by the court to date that can be said to have conferred a specific advantage upon the third defendant. It is true that lengthy affidavits have been prepared on both sides but these affidavits, and the contents of them, can be utilised if it is eventually thought necessary for the third defendant or some other claimant to pursue a claim against the plaintiff for breach of trust. There is nothing in the discontinuance which will bar such a claim.

187 Further, it follows from the views I have just expressed that it would not be appropriate to make orders of the kind sought by the third defendant which would have the effect of transforming the third defendant into the plaintiff or otherwise into being the party with the carriage of the action. This would distort the nature of the s 92 proceedings for directions and is unlikely to be an effective means of resolving the dispute between the parties. If the third defendant wishes to pursue allegations of breach of trust against the plaintiff as a consequence of the plaintiff acting upon the 18 May resolution then it must do so in the conventional manner by writ seeking a declaration. Any question of whether payments made by the plaintiff might be irrecoverable would have to be dealt with in those proceedings, by an application for injunctive relief if necessary. Accordingly, I am not inclined to make orders of the kind sought by the third defendant in that regard.

188 In summary, then, on the grounds set out by the plaintiff in its chamber summons dated 4 June 2009, there will be an order for discontinuance. In the course of argument counsel for the plaintiff accepted (ts 30) that discontinuance could properly be made subject to a condition that the plaintiff was not to commence any further proceedings under s 92 for directions as to the meaning of the term 'Bunjima' provided it was free to plead the meaning it contended for in any proceedings commenced by the third defendant. A condition of that kind will form part of the orders for discontinuance accordingly. I will hear from the parties as to whether any further orders or directions are sought as to costs or other matters.