SANDY -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [No 4] [2018] WASC 124 (20 April 2018)

7.1. Alleged denial of membership rights and improper conduct in dealing with membership applications;

7.2. Alleged failure to conduct or manage meetings properly and alleged improper administration of YAC finances;

7.3. Alleged continual non-compliance with the CATSI Act and Rule Book; and

1. The overall relief which should be granted in respect of the conduct of YAC within s 1661(1) which the plaintiffs have established.

1. The Yindjibarndi people, YAC, subsidiaries of YAC and the role of YAC in relation to the native title rights of the Yindjibarndi people (a) The Yindjibarndi people and their native title rights and interests over land in the Pilbara region of Western Australia

1. The Yindjibarndi people come from the Pilbara region in Western Australia. In 2003, the Federal Court[12] recognised that the Yindjibarndi people had certain native title rights in an area referred to as the Yindjibarndi Native Title Area (which was defined in the first schedule to the Court's determination) (Daniel Determination Area).[13] Those native title rights and interests were nonexclusive native title rights and interests. In other words, those rights did not confer possession, occupation, use and enjoyment of the land and waters in the Daniel Determination Area to the exclusion of others.
2. The Yindjibarndi people, who are referred to as the 'common law holders' of those native title rights and interests, were identified in the Daniel decision as 'Aboriginal persons who recognise themselves as, and are recognised by other Yindjibarndi people as, members of the Yindjibarndi language group'.[14]
3. Under the Native Title Act 1993 (Cth) (NT Act),[15] common law holders will ordinarily nominate a prescribed body corporate to hold their native title rights and interests on trust for them. There was no dispute[16] that for the purposes of the NT Act, YAC is a 'prescribed body corporate'[17] (PBC) and a 'registered native title body corporate';[18] in that capacity, it holds the native title rights and interests in respect of the Daniel Determination Area on trust for the common law holders.[19]
4. As a PBC which holds native title rights and interest on trust, YAC has prescribed functions, including the function to manage the native title rights and interests of the common law holders; in doing so, it is required to consult with the common law holders.[20] In its capacity as a trustee which holds the rights and interests of the common law holders, YAC has the legal capacity to negotiate certain future governmental acts, such as the conferral of mining rights and the compulsory acquisition of native title rights and interests,[21] and to make indigenous land use agreements (ILUAs).[22] Payments of compensation, such as those which may be made pursuant to an ILUA, will be held on trust for the common law holders.[23]
5. The common law holders are all of the members of the Yindjibarndi language group, and not just those persons who are, or may become, members of YAC. As the trustee of the common law holders' native title rights, YAC is therefore obliged to act in the interests of all of those common law holders, and not just in the interests of the members of YAC.

1. In 2003, the Yindjibarndi people also made a claim of native title in respect of an area of land immediately to the south of the Daniel Determination Area.[24] In these reasons, I refer to that claim, as the parties did, as the Yindjibarndi #1 claim.
2. The Yindjibarndi #1 claim is brought on behalf of the Yindjibarndi people who are said to be the descendants of 31 identified apical ancestors.[25]
3. The NT Act requires that proceedings for the determination of a claim of native title be brought by persons authorised as a single applicant.[26] The Applicant in the Yindjibarndi #1 claim was a group of people (which included the plaintiffs) who were authorised by the Yindjibarndi people to bring that claim (the original Applicant). The claim brought by the original Applicant was for native title rights and interests in the land which were exercised by the Yindjibarndi people in the Yindjibarndi #1 claim area, to the exclusion of others.
4. In 2008, YAC was appointed the agent for the original Applicant in the Yindjibarndi #1 claim.[27]
5. By the time of the trial in the present action, the trial of the Yindjibarndi #1 claim had concluded, and the trial judge had reserved his decision on that claim.[28]

1. YAC is governed by its constitution (referred to as its Rule Book).[29] The current iteration of the Rule Book was registered on 15 March 2016. Under the CATSI Act, the Rule Book operates as a contract between the corporation and each member.[30]
2. The objectives of the YAC include to:[31]

(a) provide direct relief from poverty, sickness, suffering, misfortune, destitution or helplessness among Aboriginal people, especially the common law holders;

(b) be and to perform the functions of a prescribed body corporate for the purpose of being the subject of a native title determination under [the NT Act];

(c) be and to perform the functions of a registered native title body corporate for the purpose of being the subject of a determination under [the NT Act];

(d) protect, preserve and advance the traditions, laws, languages, culture and customs of Aboriginal people, especially the common law holders; and

(e) hold title to any vested land.

1. Without limiting the generality of those objectives, the YAC may also:[32]

(a) advance and promote the wellbeing of Aboriginal people, especially the common law holders;

(b) provide environmental, social, economic and cultural benefits to Aboriginal people, especially the common law holders;

(c) maintain, protect, promote and support the culture, native title traditions and customs, economic development, interests and social progress of Aboriginal people, especially the common law holders; and

(d) support and provide education, training and employment for Aboriginal people, especially the common law holders.

1. Yindjibarndi people who meet criteria specified in the Rule Book may apply for membership of YAC. The board of YAC determines applications for membership. (The rules concerning membership of YAC are discussed in greater detail later at [219] [229] in these reasons.)
2. YAC is governed by a board of 12 directors. At the date of the trial its Chairperson was Ms Lyn Cheedy. The day to day management of YAC is undertaken by a Chief Executive Officer (CEO), Mr Michael Woodley. Mr Woodley was the CEO of YAC at all relevant times, other than for a short period in 2014 when he stepped down from that role. From July 2013, Mr George Irving was employed as an inhouse counsel for YAC. Mr Philip Davies was also employed by YAC, as its contact officer with the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (ORIC).

1. It was not in dispute that YAC has a number of subsidiaries.[33] It is the sole shareholder of Yindjibarndi Capital Pty Ltd (Yindjibarndi Capital) and of Yindjibarndi Wealth Pty Ltd (Yindjibarndi Wealth).
2. It was also not in dispute that in June 2013, YAC entered into an ILUA with Rio Tinto Iron Ore (Rio Tinto) (the Participation Agreement). Part 6 of the Participation Agreement established a Benefit Management Structure that led to the establishment of Yindjibarndi Community and Commercial Ltd (YCCL) to act as the Trustee for the Yindjibarndi People Community Trust (YPCT) and the Yindjibarndi Commercial Trust (YCT). YAC is the sole shareholder of YCCL.
3. Currently, the primary source of income for the benefit of Yindjibarndi people is payments made pursuant to the Participation Agreement.[34] Payments under the Participation Agreement are made to YCT and YPCT. The Agreement contemplates that payments may be made by YCT and YPCT to YAC, such as for administrative support services provided by YAC. (The terms of the Participation Agreement are discussed later in these reasons.) However, as I note later in these reasons at [891] [892] there was some evidence that YAC had received income of a significant quantum from the Trusts during the 2014 and 2015 financial years.
4. In addition, in February 2013, YAC established an incorporated joint venture with Anthony Martin and Right Foot Forward Pty Ltd, called Yurra Pty Ltd (Yurra), pursuant to which YAC held 50% of its shares, and Mr Martin and Right Foot Forward Pty Ltd each held 25% of its shares. In or about March 2014, YAC's shareholding in Yurra was transferred to Yindjibarndi Wealth. YAC's CEO, Mr Michael Woodley, is one of two directors of Yurra.
5. It was also not in dispute that in about November 2008, YAC entered into a management agreement with Juluwarlu Group Aboriginal Corporation (Juluwarlu). Under that agreement, Juluwarlu managed YAC's native title, heritage, environmental, cultural, administrative, banking and professional needs. That management agreement was terminated in about August 2013.

(e) Other related investigations and proceedings in respect of which YAC has been involved

1. Some of the matters relied upon by the plaintiffs as constituting conduct warranting the grant of relief under s 166-1 of the CATSI Act, or which relate to such conduct, have previously been the subject of proceedings in this Court, or have been the subject of processes adopted by the Registrar of Aboriginal and Torres Strait Islander (ATSI) Corporations (Registrar) to enforce the requirements of the CATSI Act.

1. The following related proceedings have been litigated in this Court. These are discussed further below, in the context of several of the claims of oppressive conduct made by the plaintiffs, but it is convenient to mention them briefly at this point.
2. In November 2011, the plaintiffs, together with Ms Mavis Pat, commenced proceedings seeking an interlocutory injunction to restrain YAC from proceeding with a proposed annual general meeting (AGM) on 30 November 2011, on the basis that notice of that meeting had not been properly given to members of YAC in accordance with the requirements of the CATSI Act.[35] In addition, the plaintiffs in that action sought an injunction to restrain YAC from putting a proposed resolution to the AGM to amend YAC's Rule Book which was intended to change the criteria for membership of YAC. They contended that those amendments were contrary to the CATSI Act, contrary to the interests of members and that they were oppressive, so as to attract the statutory remedies under s 166-5 of the Act.[36]
3. Master Sanderson granted an interlocutory injunction restraining YAC from proceeding with the AGM proposed for Wednesday 30 November 2011 until notice had been given to all members of YAC, and from considering or permitting to be passed, at any meeting, any of the resolutions set out in the notice for that AGM in relation to the proposed amendment of those rules in the YAC Rule Book which concerned the criteria for membership of YAC.[37]
4. In Adams v Yindjibarndi Aboriginal Corporation RNTBC,[38] two members of YAC Ms Charmaine Adams and Ms Jill Tucker sought declarations as to the validity of their convening of a general meeting of YAC on 10 November 2014. Justice Kenneth Martin made a declaration that the general meeting had been validly called and that each of the motions set out in the notice of the general meeting was able to be proposed at that meeting.[39]
5. Finally, in Sandy [No 2],[40] Mr John Sandy brought proceedings challenging the validity of a meeting of the directors of YAC which was held on 16 December 2015. Mr Sandy contended that the meeting had not been validly convened because it had not been called by a director; because reasonable notice had not been given to one of the directors (Ms Tucker); and because the directors had accepted membership applications from 46 new members for an improper purpose, namely to influence the outcome of motions to be considered at a general meeting of YAC on 1 February 2016. In addition, Mr Sandy contended that the terms of appointment of all of YAC's directors had expired on 10 September 2015, and that although extended (by the CATSI Act) until the next general meeting of YAC on 30 November 2015, motions for the appointment of directors were put, but not passed, at that meeting, with the result that on 16 December 2015, YAC had no validly appointed directors.
6. Justice Le Miere held that the purported meeting of directors on 16 December 2015, and the resolutions passed at that meeting, were invalid, because the person who called the meeting, and the persons who attended, had ceased to be directors on 30 November 2015. His Honour also held that reasonable notice of that directors' meeting had not been given to Ms Tucker. His Honour further held that the directors had accepted the 46 membership applications for an improper purpose.[41]

Related procedures pursued by the Registrar of ATSI corporations

1. The CATSI Act creates both the statutory office of the Registrar, and ORIC.[42]
2. The Registrar is given a number of functions to administer the CATSI Act.[43] In addition, the Registrar has a wide variety of powers to enforce compliance with the requirements of the CATSI Act. By way of example, the Registrar may issue a notice requiring the directors of a corporation to take action to comply with the CATSI Act or the corporation's constitution, or to remedy an irregularity (compliance notice). A compliance notice may be issued if the Registrar suspects on reasonable grounds that an ATSI corporation has failed to comply with a provision of the CATSI Act or its constitution, or if there has been an irregularity in the affairs of the corporation.[44]
3. The Registrar also has power to appoint a special administrator if the Registrar suspects on reasonable grounds that circumstances exist that constitute grounds for the appointment of a special administrator.[45] The grounds for the appointment of a special administrator include if the affairs of the corporation are being conducted in a way that is oppressive or unfairly prejudicial to, or discriminatory against a member or members; or contrary to the interests of the members as a whole; or if disputes between the corporation's members and officers are interfering with the proper conduct of the corporation's affairs; or if the appointment is required in the interests of the members, or in the public interest.[46]
4. The Registrar has issued two compliance notices of relevance to the present proceedings. The first, issued on 8 March 2011, required that YAC's directors take action to, amongst other things, deal with outstanding applications for membership and to put in place a system for the directors' approval of any payments to be made by YAC (first compliance notice).[47] In October 2011, the Registrar advised that he was satisfied that YAC had met the requirements of the first compliance notice.[48]
5. Another compliance notice was issued by the Registrar on 16 May 2016, following the decision of Le Miere J in Sandy [No 2] (second compliance notice).[49] That notice required YAC to, amongst other things, prepare draft policies and procedures requiring that YAC hold its AGM before 30 November each year, and that all membership applications be dealt with at a directors' meeting within a reasonable time after their receipt, and that by 30 June 2016, the directors consider any membership applications made prior to 1 June 2016.
6. In addition, I should also mention that following the decision of Le Miere J in Sandy [No 2], the Registrar exercised his powers under the CATSI Act to change YAC's Rule Book, by replacing the requirement that resolutions passed at a general meeting be passed by a special majority with a requirement for a simple majority only. In addition, the Registrar called a general meeting of YAC's members to appoint directors of YAC.[50]

2. The pleadings, the evidence and findings as to credibility of the witnesses (a) The history of the action

1. This action has a long history, having commenced in 2011. In August 2013, the parties reached agreement as to a basis on which they would settle this action. A copy of the Deed of Settlement and Release (Settlement Deed) entered into by the parties at that stage was in evidence.[51] The Settlement Deed provided that, upon certain steps being taken, the proceeding would be dismissed with no determination on the merits. Regrettably, the parties fell into dispute in relation to completion of those steps and the proposed settlement did not come to fruition. However, certain steps were taken by the parties in partial compliance with the terms of the Settlement Deed. These are discussed below because they form part of the factual foundation for some of the claims of oppressive conduct by YAC.
2. The action did not proceed by way of formal pleadings. Instead, the parties filed Statements of Issues, Facts and Contentions. That had the advantage of identifying, perhaps more clearly than formal pleadings might have, the issues the parties identified as requiring resolution, and the legal arguments the parties saw as underpinning their respective positions. On the other hand, the precise extent of the parties' disagreement as to the facts was less clear. In some instances, it appeared that there was little factual dispute, and on other occasions the facts alleged by each of the parties appeared to be broadly similar, but there were no admissions and few statements of express agreement as to the facts. Consequently, it has been necessary to make factual findings about each of the alleged incidents of oppressive conduct alleged by the plaintiffs.

1. The trial took place over 10 days in December 2016 and February 2017. A very large volume of documentary evidence was tendered in a trial bundle. Many other exhibits were also tendered in evidence.
2. The plaintiffs tendered a total of 25 affidavits, which were sworn or affirmed by the following 18 witnesses:

1. The defendants tendered a total of eight affidavits, which were sworn or affirmed by the following six witnesses:

1. Each of the parties called expert evidence from an accountant, in relation to the alleged oppressive conduct arising from YAC's alleged failure to provide consolidated accounts for it and various entities said to be related to it for accounting purposes. The plaintiffs relied on the evidence of Ms Susan OldmeadowHall[76] and the defendants relied on the evidence of Ms Nikki Shen.[77] In addition, the expert witnesses met and conferred, and, as a result of that conferral, provided a joint memorandum outlining the areas of agreement and disagreement.[78] The experts gave evidence in a concurrent session which was of assistance in further highlighting the reasons why they disagreed in relation to the extent of the consolidation of YAC's accounts which was required by relevant Accounting Standards.

(c) The credibility and reliability of the non-expert witnesses

1. Only the plaintiffs, Mr Vincent Adams and Mr Rodney Adams were cross-examined by counsel for the defendants. The remainder of the plaintiffs' affidavit evidence was unchallenged and I accept it.
2. Counsel for the plaintiffs cross-examined all of the defendants' witnesses, apart from Mr Cheedy, whose evidence (limited as it was) I accept.
3. All of the lay witnesses, apart from Mr Irving and Mr Sheard, are Yindjibarndi people. In assessing their credibility, I have taken into account the fact that cultural differences may affect the way in which Aboriginal witnesses give evidence, or their demeanour as witnesses. It is well recognised that a number of factors may impact on the evidence given by Aboriginal witnesses, including some characteristics of communication in Aboriginal society such as the avoidance of direct eye contact as a sign of respect, and a tendency to gratuitously concur with questions, as well as language difficulties.[79] To the extent that these factors may have impacted on the evidence of particular witnesses, I have commented on them below.
4. In so far as the witnesses were concerned, I make the following findings as to their reliability and credibility.
5. Ms Sylvia Allan is an elderly woman who has spent her entire life in Yindjibarndi country.[80] Ms Allan is a softly spoken woman, who was hard of hearing,[81] and obviously had difficulties, on occasion, in comprehending spoken English. (Ms Michelle Adams sat in the witness box with Ms Allan while she gave her evidence to provide reassurance and to act as an informal interpreter, when required. There was no objection by defence counsel to that course[82] and Ms Adams took the interpreter's oath for that purpose.)
6. In crossexamination, it soon became apparent that Ms Allan remembered little of the matters referred to in her affidavits, particularly in so far as they concerned meetings of YAC, or other meetings in which she had participated.[83] Much of her oral evidence was of little or no assistance as a consequence of those difficulties. Ms Allan's memory was stronger when she was asked to recall people or relationships within the Yindjibarndi community, and her role in resolving membership disputes (as a member of what was referred to as the Elders' Subcommittee, which is discussed below at [393] and following). I have taken that part of her evidence into account, and refer to it below.
7. The evidence of the elderly woman, who had a very limited recollection when giving her evidence in the witness box, stood in marked contrast to the detailed evidence set out in Ms Allan's affidavits. That raises the question of how the evidence set out in her affidavits should be approached. Counsel for the defendants submitted that 'to the extent that the affidavit evidence of the Plaintiffs is contentious it cannot be given any weight. This is because of the difficulties that the Plaintiffs had in recalling even basic facts about the proceeding'.[84]
8. In the end I approached Ms Allan's affidavit evidence with caution, but I have taken it into account. Subject to the following qualifications, I accept that Ms Allan's affidavit evidence is truthful and reliable evidence. In reaching that conclusion, I have taken into account, first, the fact that Ms Allan's affidavits were prepared some time ago, and no doubt with more time and less pressure than a witness experiences in a court room. Secondly, much of Ms Allan's affidavit evidence (for example, in relation to various meetings which she attended, or applications she made in the Yindjibarndi #1 claim) was consistent with the documentary evidence in relation to those events or actions, or was corroborated by other witnesses. Thirdly, the balance of Ms Allan's evidence concerned her own motivation for participating in WMYAC, her concerns about YAC's management and its approach to membership, and her evidence about whether other persons were Yindjibarndi people. I did not understand the defendants to challenge the genuineness of that evidence. I have taken this aspect of Ms Allan's evidence into account as an example of the concerns, and different views, held by the Yindjibarndi people. However, I have not relied on the concerns or opinions of Ms Allan, or of any of the other witnesses for the plaintiffs, for the purpose of determining whether, in fact, YAC's conduct was oppressive on any count.
9. I turn next to the evidence of Ms Aileen Sandy. Ms Sandy is a Yindjibarndi woman of advancing years, who was born and grew up in Roebourne, and speaks the Yindjibarndi language 'all the time'.[85] (As she did with Ms Allan, Ms Michelle Adams sat with Ms Sandy in the witness box to provide reassurance and to act as an informal interpreter, when required.)
10. Most of Ms Sandy's oral evidence was of no assistance, for two reasons. First, she was unable to remember much about the events about which she was cross-examined. On several occasions, she indicated that she could not remember 'because it has been too long'.[86] Secondly, on numerous other occasions, it was apparent that Ms Sandy clearly did not wish to answer the questions put to her. At times she responded to questions with silence, while on other occasions she quite simply 'closed down' and replied in terms such as 'I can't give you answer on that. Thank you very much'.[87] Her demeanour on those occasions was different from the occasions on which she told the Court that she could not remember the events in question. That reluctance appeared particularly pronounced when she was asked about the dispute between YAC and WMYAC. Perhaps Ms Sandy's response was attributable to cultural differences, but she left me with the clear impression that she simply did not wish to give evidence in respect of certain matters. Ms Sandy conveyed the impression that she was weary of litigation, and deeply sad and disappointed about the division in the Yindjibarndi community.[88]
11. As for Ms Sandy's affidavit evidence, it stands in a different position to her oral evidence. Much of it sets out her reasons for participating in WMYAC and her concerns about YAC and its management. I accept that evidence on the basis that it reflects Ms Sandy's genuinely held views about those matters. However, I have not relied on the concerns or opinions of Ms Sandy for the purpose of determining whether, in fact, YAC's conduct was oppressive on any count.
12. Turning to the evidence of Mr Rodney Adams and Mr Vincent Adams, I was satisfied that their ability to give their evidence was not hampered by cultural differences or language difficulties. Subject to one reservation in relation to Mr Rodney Adams' evidence (which I discuss at [212]), I accept that the evidence given by each of them was credible and reliable.
13. As for the defendants' evidence, Mr Angus Mack gave evidence in support of the defendants' case.[89] I carefully observed him giving his evidence. Counsel for YAC submitted that it was extremely difficult for Mr Mack to comprehend lengthy and detailed questions, having regard to his limited education, and to cultural differences.[90] Sometimes the questions put to him were lengthy and involved considerable detail, and there were a number of occasions on which Mr Mack clearly did not understand the question.[91] However, on most occasions, Mr Mack requested clarification or that the question be put to him differently. On other occasions where he appeared to be experiencing difficulties in comprehension, I intervened to confirm that he understood the question put, or to ask counsel to rephrase the question. In addition, Mr Mack also asked counsel to proceed more slowly if his questions were put too quickly.[92] In the end, I was satisfied that Mr Mack's evidence adequately, and accurately, conveyed his knowledge of, and perspective on, the events and issues in dispute in this trial and was not hampered by cultural differences.[93]
14. At times there were long pauses in Mr Mack's evidence while he thought about the question put to him. On some occasions when dealing with questions concerning the approach taken by the YAC directors to membership applications by WMYAC members it appeared that Mr Mack was hesitant in giving his evidence because he was concerned that his answer might result in an acknowledgement of conduct by YAC which might be open to criticism.[94] I approached his evidence with caution for that reason.
15. Ms Lyn Cheedy answered questions directly and frankly, and clarified questions with counsel when she was uncertain what was being asked. There was nothing to suggest that Ms Cheedy experienced any comprehension or language difficulties in giving her evidence, and I did not observe anything in her demeanour to suggest that her evidence was hampered by cultural differences. Ms Cheedy appeared to find crossexamination stressful and distressing on occasion.[95] That may have been, in part, a response to the stress of extensive crossexamination. In addition, Ms Cheedy had recently experienced a family bereavement.[96] However, it was also apparent that, on occasion, Ms Cheedy sought to answer questions so as to cast the best light on the directors' conduct. That was especially so in relation to her evidence as to the basis for the directors' decisions as to membership on 29 June 2016, and consequently I found some aspects of her evidence, in relation to that issue, unconvincing. I approached the balance of her evidence with caution, but ultimately I have accepted it.
16. Mr Woodley is the CEO of YAC, and has been for some years. He gave his evidence directly and confidently. It was clear that he has passionate and strongly held views about the importance of preserving the culture and identity, and protecting the financial interests, of the Yindjibarndi community, and that he sees those interests as best served by YAC. It was also apparent that it is Mr Woodley who drives many of the management decisions and policies adopted by the YAC board.
17. I approached Mr Woodley's evidence with some caution because of the risk that his strongly held views would skew his recollection of events. By way of example, when asked about a suggestion made by Korda Mentha concerning the delegation of authority by the board of YAC, Mr Woodley's ambiguous answer (which may have been deliberately so) was that the board 'took it on, but [the board] had some other plans in terms of how [the board] thought what would be in the best interests for the corporation'[97] and that 'at the end of the day, the Board had [its] own ideas in terms of what we was going to do in terms of [Korda Mentha's suggestion].'[98] In addition, Mr Woodley gave very vague and ambiguous evidence when asked about financial matters related to Juluwarlu, and he subsequently suggested that he kept his distance from Juluwarlu matters because his wife, Ms Lorraine Coppin, is the chief executive officer of Juluwarlu.[99] I have not relied on any of Mr Woodley's evidence to the extent that it concerned Juluwarlu and its financial connection with YAC.
18. In so far as Mr Woodley's evidence pertained to factual matters, I have relied upon his evidence to the extent that it is consistent with the documentary evidence. However, in so far as Mr Woodley's evidence concerned the decisions of the board of YAC, I have relied primarily on the documentary evidence, and on the evidence given by Ms Cheedy and Mr Mack, subject to my expressed reservations in relation to their evidence. .
19. Mr Irving is the solicitor and inhouse counsel for YAC. I accept his evidence as credible and reliable.
20. Similarly, I accept the evidence of Mr Sheard as credible and reliable.

(d) The defendants' failure to call the directors of YAC apart from Mr Mack and Ms Cheedy

1. Counsel for the plaintiffs made a submission, in reliance on Jones v Dunkel,[100] arising from the decision by the defendants not to call any directors of YAC apart from Mr Mack and Ms Cheedy.[101] He submitted that

the failure to call evidence from 10 of the 12 members of the YAC Board, including a director of not only YAC but all its subsidiaries (except Yurra Pty Ltd), should enable the Court in the evaluation of evidence to infer that the omitted evidence would have not have assisted the defendants' case on either of the financial issues or the membership issues. Further, it should enable the Court to more confidently or readily draw inferences of fact adverse to the defendants which might otherwise be open.[102]

1. With respect, that submission was not an entirely fair reflection of the defendants' position. Late in the course of the trial, counsel for the defendants advised the Court that the defendants had decided not to call Mr Stanley Warrie, the second defendant. Counsel advised that Mr Warrie was an elderly man who, by the time he was due to give evidence, after having waited at the Court for several days to do so, was not feeling sufficiently well to give evidence.[103]
2. Counsel for the defendants also advised the Court that the defendants decided not to call Ms Pansy Sambo, who is a director of YAC and all of the corporate entities related to YAC, except Yurra Pty Ltd, because she had had a bereavement in her family in the course of the trial.
3. Counsel for the defendants submitted that an adverse inference should not be drawn from the defendants' failure to call other directors of YAC. He submitted that it would have been both 'unrealistic and disproportionate'[104] for the defendants to obtain affidavits from each of the persons who had been directors of YAC between 2010 and 2016. He also submitted that:[105]

In view of the lengthy cross-examination of the Defendants' witnesses, there would have been insufficient time to call any further witnesses than those who were called. The case could not have finished within a reasonable time.

1. Notwithstanding these practical difficulties (which are not without some force) in my view, it remains open to the Court to infer, from the defendants' failure to call other directors, that none of the other directors would have been of more assistance to the defendants' case than the evidence of Mr Mack and Ms Cheedy. However, that inference is of limited assistance to the plaintiffs in the circumstances of this case, particularly the following two circumstances. First, the failure to call individual directors would have been particularly significant had the defence under s 166-1(2) of the CATSI Act been maintained. As the defendants abandoned reliance on that 'defence', the forensic significance of the absence of the other directors was much reduced. Secondly, in many respects the defendants' case involved little dispute about the facts alleged by the plaintiffs, but rather centred on whether, in all of the circumstances, the relief sought by the plaintiffs should be granted. In that context, the evidence of other directors was also of lesser forensic significance, and the impact of any Jones v Dunkel inference far less important than it might have been in a case involving a dispute about a critical fact.
2. I have relied on the evidence of Mr Mack and Ms Cheedy as evidence of the conduct and views of the directors as a whole, and those of YAC itself. I have also relied on Mr Woodley's evidence as to his conduct as evidence of the conduct of YAC, given his integral role in the management of YAC and his influence on its decisions.[106]
3. Counsel for the plaintiffs also submitted that the decision by the defendants not to call Mr Philip Davies to give evidence was also of significance. Mr Davies was one of the management staff within YAC, and the officer designated as the contact person for enquiries relating to ORIC. I accept that I can infer that Mr Davies' evidence would not have assisted the defendants, any more than the evidence given by the other witnesses involved in the management of YAC, notably Mr Woodley. However, in view of the documentary evidence relating to YAC's responses to the Registrar's intervention in its affairs (which is discussed later in these reasons), and the nature of the case advanced by YAC, the significance of the failure to call Mr Davies was also considerably diminished.

3. Some background to this litigation a dispute between YAC and those of its members who are also members of the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)

1. At the heart of this action is a dispute between YAC and those of its members who are also members of the ATSI corporation called WMYAC.
2. WMYAC was registered under the CATSI Act on 23 November 2010.[107] It was established by a number of YAC members, including the plaintiffs. Ms Sylvia Allan is a director of WMYAC[108] and Ms Aileen Sandy was a director of WMYAC until shortly before the trial.[109]
3. WMYAC's objectives, as set out in its Rule Book,[110] are expressed in identical terms to YAC's objectives.[111] The membership criteria set out in WMYAC's Rule Book are also similar to the membership criteria set out in YAC's Rule Book. In order to be a member of WMYAC, a person must be at least 18 years old, a Yindjibarndi person who holds in common the body of traditional law and culture governing the Daniel Determination Area, and identify as Yindjibarndi.[112]
4. There was some dispute between the parties as to the precise bounds of the dispute between YAC and those of its members who are members of WMYAC. It is not necessary to resolve the origins of that dispute, or even to make findings about all of the issues which may be in dispute. It was, however, apparent that some of the issues which led to the dispute included concerns about the management of YAC, including the management of its financial affairs and the role and conduct of its CEO, Mr Michael Woodley, and, most significantly, a dispute about whether Yindjibarndi people (through YAC) should enter into a land access agreement with Fortescue Metals Group (FMG) for the payment of compensation for its mining activities on land the subject of the Yindjibarndi #1 claim.
5. I deal with the nature of these aspects of the dispute between YAC and its members in a little more detail later in these reasons because they form part of the context for some of the allegations of oppressive conduct made by the plaintiffs.

1. This is an appropriate juncture to make some brief observations about what this case was not about, and thus what this judgment does, and does not, determine. This case was not about whether YAC, or the Yindjibarndi people represented by some other indigenous corporation, should enter into an agreement with FMG, or the terms of that agreement. Nor was this case one in which a determination was sought that particular persons are, or are not, eligible for membership of YAC, or of any other indigenous corporation which purports to exist to act in the interests of the Yindjibarndi people. Nor did this case concern who should be the directors and chief executive officer of YAC. These are all questions with which the Yindjibarndi people must continue to grapple themselves.
2. All this case is about is whether the particular conduct of YAC (which has been specifically identified and relied upon by the plaintiffs), said to have been engaged in by YAC's directors and CEO, constitutes conduct of the kind referred to in s 1661 of the CATSI Act, and if so, whether any order should now be made by the Court in relation to that conduct, and in particular, whether the relief sought by the plaintiffs namely the appointment of a Receiver should be granted.

5. Legal principles concerning conduct of directors under the CATSI Act

1. One of the objectives of the CATSI Act was to align the corporate governance requirements for ATSI corporations with modern standards of corporate regulation and accountability, but in such a way as to reflect the different circumstances of ATSI corporations, and so as to enable some flexibility for ATSI corporations to tailor their arrangements to suit those circumstances.[113] So, for example, fundamental concepts from the Corporations Act 2001 (Cth) such as the separate legal personality of a corporation upon its registration,[114] and its governance by a board of directors[115] who are accountable to the corporation's members, and required to act in good faith in the best interests of the corporation, and for a proper purpose[116] - are replicated in the CATSI Act.[117] Furthermore, some of the key corporate governance provisions from the Corporations Act 2001 (Cth) are closely replicated in the CATSI Act. They include the provisions concerning the duty of directors to exercise their powers and perform their duties in good faith in the best interests of the corporation, and for a proper purpose,[118] which are found in s 181 of the Corporations Act 2001 (Cth) and reflected in s 265-5 of the CATSI Act.
2. The plaintiffs' claims for relief in this case are founded on s 1661 and s 166-5 of the CATSI Act, which are in very similar terms to s 232 and s 233 of the Corporations Act 2001 (Cth). To the extent that the CATSI Act provisions in relation to corporate governance reflect those in the Corporations Act 2001 (Cth), the principles developed in relation to the application of the Corporations Act provisions apply also to the CATSI Act provisions.[119]

(a) The duty on a director to exercise their powers in good faith in the best interests of the corporation, and for a proper purpose

1. Directors of a company are fiduciary agents, and a power conferred upon them cannot be exercised in order to obtain some private advantage or for any purpose foreign to the power, but rather must be exercised for the benefit of the company as a whole.[120]
2. As Dixon J explained in Mills v Mills, if the power would not have been exercised save for some ulterior and illegitimate object, then that[121]

which has been attempted as an ostensible exercise of power will be void, notwithstanding that the directors may incidentally bring about a result which is within the purpose of the power and which they considered desirable.

1. The test for determining whether a power has been exercised for a proper purpose is an objective one.[122]
2. In determining whether a power has been exercised for a proper purpose, the Court must first determine the purpose or purposes for which the power must properly be exercised. That is a question of law. The Court then determines the purpose for which the power was, in fact, exercised, and whether that purpose was within the category of permissible purposes.[123]
3. The power of the directors must be used for the purpose for which it was conferred. That power must not be used under the cloak of such a purpose but in fact for an ulterior purpose, such as benefiting some shareholders at the expense of others, or so that some shareholders can wrest control of the company from others.[124] Similarly, for a director to exercise the power to accept or decline a membership application for the purpose of manipulating the voting power of members, or creating a new majority of members, would be foreign to the purpose of that power.[125]
4. Clearly, there may be cases where conduct which constitutes a misuse of directors' powers (that is, the exercise of those powers other than in good faith and for a proper purpose) also constitutes oppressive conduct towards members of the corporation.

(1) Subject to subsection (2), the Court may make an order under section 1665 if:

(a) the conduct of an Aboriginal and Torres Strait Islander corporation's affairs; or

(b) an actual or proposed act or omission by or on behalf of an Aboriginal and Torres Strait Islander corporation; or

(c) a resolution, or a proposed resolution, of members or a class of members of an Aboriginal and Torres Strait Islander corporation;

(d) contrary to the interests of the members as a whole; or

(e) oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

1. The Court must not make an order under that section in certain circumstances, including where the act said to constitute oppressive conduct was done by an officer of the corporation in good faith and with the belief that doing the act was necessary to ensure that the corporation complied with a Native Title legislation obligation.[126] Initially, the defendants sought to rely on that provision but in the course of submissions, counsel confirmed that that was no longer pressed.[127]
2. The orders which may be made by a Court (which includes the Supreme Court[128]) pursuant to s 166-1 are set out in s 166-5 of the CATSI Act, which provides:

(1) The Court can make any order under this section that it considers appropriate in relation to the corporation, including the following:

(a) an order that the corporation be wound up;

(b) an order that the corporation's existing constitution be modified or repealed and replaced;

(c) an order regulating the conduct of the corporation's affairs in the future;

(d) an order for the corporation to institute, prosecute, defend or discontinue specified proceedings;

(e) an order appointing a receiver, or a receiver and manager, of any or all of the corporation's property;

(f) an order restraining a person from engaging in specified conduct or from doing a specified act;

(g) an order requiring a person to do a specified act.

1. The persons who are entitled to apply for an order under s 166-5 are set out in s 166-10 of the CATSI Act. They include a member of the corporation. That is so even if the application relates to an act or omission that is against the member in a capacity other than as a member, or another member in that member's capacity as a member. As I have already observed, there was no dispute that the plaintiffs were entitled to bring the present action.
2. Chapter 11 of the CATSI Act provides for corporations to be placed under special administration and for a special administrator to be appointed. The exercise of the power to appoint a special administrator will be informed by the objects and aims of the CATSI Act, in contrast to an administration under the Corporations Act 2001 (Cth), which is principally driven by the interests of creditors and a certainty of commercial transactions.[129]
3. In addition to the Court's powers under the CATSI Act, the plaintiffs also rely on the Court's power in its equitable jurisdiction to grant injunctions or make declarations about the rights of the parties.[130] The plaintiffs contend that to the extent that the conduct or proposed conduct of YAC constitutes a breach or threatened breach of the Rule Book, an injunction or declaration could be granted by way of relief.[131] There is no doubt that the Court has power to grant relief of that kind in an appropriate case.

1. The ground of being 'contrary to the interests of members as a whole' under s 166-1(1)(d) is independent of the ground of being 'oppressive to, unfairly prejudicial to or unfairly discriminatory against, a member or members whether in that capacity of any other capacity' under s 1661(1)(e).[132]
2. It is convenient to consider the meaning of each of those provisions separately.

Acting contrary to the interests of members as a whole under s 1661(1)(d)

1. The meaning of the phrase 'contrary to the interests of the members as a whole' in the corporations legislation has been equated with 'the benefit of the company as a whole'.[133]
2. The interests of the members, considered as a whole, are 'circumscribed by, and found within, the constituting documents of the company'.[134] So, for example, to exclude a member from membership of a corporation, contrary to its articles, may be contrary to the interests of the members of the company as a whole.[135]
3. The requirement that an exercise of a corporation's powers be for the benefit of the members as a whole is to exclude their exercise for 'ulterior special and particular advantages'. The provision is directed to 'purposes foreign to the association's operations, affairs and organizations'.[136]
4. Conduct by a board of directors will be contrary to the interests of the members as a whole if no board, acting reasonably, could have engaged in that conduct.[137] It is not necessary to show bad faith on the part of the directors. In other words, conduct may be contrary to the interests of the members as a whole even though the board of directors does not act in bad faith.[138]
5. In considering an allegation that conduct was contrary to the interests of the members as a whole, the courts will not assume the management of corporations, so as to substitute their decisions and assessments (about the merits of particular management decisions) for those of the directors.[139] Consequently, in order to show that a decision was not in the overall interests of the members as a whole, it has to be shown that the decision of the board of directors was such that no board acting reasonably could have made it.[140]

1. As Menhennitt J noted in Re Tivoli Freeholds:[141]

Whether or not a company is being conducted in a manner oppressive to certain shareholders or members depends upon all the circumstances and it is not possible to attempt a universal definition.

1. The concept of oppression in the corporations legislation has, historically, been understood as importing the notion 'that the oppressed are being constrained to submit to something which is unfair to them as the result of some overbearing act or attitude on the part of the oppressor'.[142] A key issue in the application of the equivalent statutory test under the corporations legislation is that of fairness,[143] and the different elements in the statutory formulation based on oppression, unfair prejudice and unfair discrimination have been described as 'merely different aspects of the essential criterion, namely commercial unfairness'.[144] As Tamberlin J explained in Shelton v National Roads and Motorists Association, '[i]f directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive'.[145] Conduct on the part of a director that is merely unwise, inefficient or careless will not, by itself, amount to oppression.[146]
2. Those alleging that the affairs of the company have been conducted in a manner oppressive to them must therefore establish, as one element, conduct which is unfair, or burdensome, harsh and wrongful, to the other members of the company or some of them, and which lacks that degree of probity which they are entitled to expect in the conduct of the company's affairs.[147] A failure to provide information, or a lack of transparency about the financial affairs of a closely held group of companies may also amount to oppressive conduct.[148] So, too, can a persistent failure to allow time for discussion at meetings.[149]
3. The Court should not take a narrow approach to cases of oppression[150] and the Court's jurisdiction should not be confined by technical distinctions.[151] The judicial imposition of limitations on the scope of the provisions should be approached with caution.[152]
4. Oppression is not established simply by showing that the majority are in control of the company, or that the applicant is consistently outvoted, or that the majority have made some questionable decisions from a business point of view. The mere disadvantage of being in a minority does not in itself constitute oppression.[153] Similarly, disagreement with a decision by a majority of shareholders and directors on the part of a minority shareholder does not entitle that shareholder to relief under the section.[154] Nor does the mere fact that a member of a company has lost confidence in the manner in which the company's affairs are conducted, or is dissatisfied with the conduct of the company's affairs; nor can resentment at being outvoted.[155]
5. In judging whether particular conduct is oppressive, the Court must decide whether, in balancing the interests of the company as a whole against minority interests, the directors of the company have acted so as to unfairly prejudice the interests of the minority. Whether the conduct complained of is oppressive is to be determined objectively, from the position of a hypothetical and reasonable director, and according to ordinary standards of reasonableness and fair dealings.[156]
6. As Tamberlin J observed in Shelton v National Roads and Motorists Association, '[t]he question is one of fact and degree for the Court to determine, having regard to the view the directors have formed themselves, and allowing for any special skill or knowledge possessed by the directors'.[157] Where a member is adversely affected by conduct of the company, the determination as to whether the conduct was oppressive requires an overall assessment of the position of the member in the company, and of the company itself. Whether the conduct involved unfairness 'cannot be assessed in a vacuum or simply from one member's point of view. It will often depend on weighing conflicting interests of different groups within the company'.[158] The Court will need to determine whether there was a departure from the standards of fair dealing in light of the history and structure of the particular company and the reasonable expectations of the members, so as to determine whether the detriment caused to the members' interests by the conduct of the company was justifiable.[159]
7. Relief may be sought for oppressive conduct in respect of a single act or omission, or in respect of the continuous conduct of the affairs of the company over time.[160] It is necessary for each single allegation in an oppression case to be pleaded clearly in order to assess whether the totality may amount to oppression.[161] In a case whether there are a variety of individual allegations, it is necessary to consider not just whether each of them constitutes oppressive conduct, but whether the totality of the allegations constitutes oppression.[162]
8. The provisions are directed to conduct of the company which is unjustly detrimental to any member of the company, whatever form it takes and whether it adversely affects all members alike or discriminates against some only.[163] That detriment may be to the financial interests of the member as a member, or it may be conduct which is adverse to a member's interests in other capacities, as where, for example, the member is excluded from participation in the management of the company.[164]
9. The onus of establishing unfairness rests on the applicant asserting the conduct that is contrary to the interests of the members as a whole, or that is oppressive, unfairly prejudicial or discriminatory. An applicant must actually prove oppression before obtaining relief.[165]
10. In order to succeed, it is not necessary for an applicant to show that any decision of the corporation was invalid.[166] However, proof of invalidity or noncompliance with the corporation's constitution may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of a corporation's constitution. The failure to observe those provisions has the effect of depriving members of their right, as members, to have the affairs of the corporation conducted in accordance with its constitution and rules.[167]
11. In determining whether conduct is oppressive within the meaning of the section, the courts are not concerned with reviewing the underlying merits of the decisions of the directors. The courts do not substitute their discretion for the discretion exercised in good faith by the board.[168] Actions for oppressive conduct are not the vehicle for de facto appeals on the merits of management decisions.[169] By way of example, in the context of membership disputes, it is not for the Court to determine whether membership applications are bona fide.[170] In those cases where the decision making body (whether the directors, a management committee or otherwise) has a very broad discretion to accept or reject membership applications, the Court will be very slow to interfere with decisions made in good faith.[171] That principle recognises that there may be many legitimate reasons why a decision maker for a corporation or association would reject a membership application, ranging from a determination that the aims and aspirations of the applicant are not consistent with the objects of the corporation or association, to questions of capacity where the association does not have the ability to cater for an influx of members.[172]
12. Conduct which is not in the interests of the members as a whole (contrary to s 166-1(1)(d)) may also constitute conduct which is oppressive (contrary to s 166-1(1)(e)). By way of example, rejection of membership applications as a bundle, and without consideration of each individual application, and for a purpose unrelated to the objects of the corporation, may be oppressive, and not in the best interests of the members as a whole.[173]

6. Overview of the conduct which the plaintiffs contend constitutes oppressive conduct

1. As I have already mentioned, the plaintiffs allege 20 different kinds of oppressive conduct. These were identified under five broad headings. The alleged oppressive conduct was:

(a) Alleged oppressive conduct by operating without any validly appointed directors: permitting itself to operate and engage in affairs without there being any directors;

(b) Alleged denial of membership rights and improper conduct in dealing with membership applications:

(i) Alleged wrongful conduct of YAC in excluding and hindering members in respect of their rights to participate as members of YAC, and invalid resolutions made by YAC in relation thereto, namely by:

(I) alleged wrongful exclusion of members from meetings of YAC, in particular the AGM of 15 December 2010; and

(II) alleged wrongful purported cancellation of memberships on 15 December 2010 with respect to 26 members of YAC, and continued denial of that membership until at least 21 March 2012;

(ii) Threatened conduct of YAC to convene a meeting for the purpose of amending rules 3.1 and 3.7 of YAC's Rule Book, in order to limit the persons who can be members of YAC and the grounds upon which membership may be cancelled;

(iii) Wrongful conduct and exercise of power by YAC and its purported officers in refusing and/or failing to consider membership applications, during the period 2011 2016;

(iv) Wrongful denial of membership to persons approved by the board in 2014 to be eligible for membership;

(v) Approval (in November 2015) of membership applications by YAC's purported board, and subsequent registration of the membership applicants as members of YAC, for an improper purpose;

(vi) Apparent bias in dealing with membership applications in June 2016.

(c) Failure to conduct or manage meetings properly:

(i) Failure to explain YAC's annual financial report or provide members an opportunity to ask questions or make comments at the AGM held on 21 March 2012;

(ii) Discussion about financial issues hindered at the AGM held on 10 September 2014;

(iii) CEO's report not accepted on the basis that it did not relate to the affairs of YAC in the 2014 and 2015 financial years.

(i) Failure to explain YAC's annual financial report or provide members an opportunity to ask questions or make comments at the AGM held on 21 March 2012;

(ii) Issues arising out of the Korda Mentha report tabled at the AGM held on 10 September 2014;

(iii) Signing off on the 2014 annual financial report when it contained material errors;

(iv) Incurring costs in defending legal proceedings without authority from the board;

(v) Incurring and paying expenses in the period when YAC had no validly appointed directors;

(vi) Failure to report to members in compliance with subdivision 333A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2007 (Cth) due to the failure to prepare consolidated accounts.

(i) Other evidence of continual non-compliance with the CATSI Act and Rule Book, namely:

(I) Matters identified by the Registrar in the first compliance notice issued on 8 March 2011;

(II) Matters identified by the Registrar in the second compliance notice issued on 16 May 2016;

(III) Failure to adequately maintain the Register of Members.

1. Each of these instances of alleged oppressive conduct is separately considered below.
2. Given the extensive factual and temporal context for the plaintiffs' allegations of oppressive conduct, I have not adopted the orthodox approach adopted in judgments of making findings of fact in a global sense, and in a chronological order. Instead, I have made specific findings of the facts relevant to each of the allegations of oppressive conduct.
3. As far as possible, I have endeavoured to deal with the allegations of oppressive conduct in a chronological order. However, it is convenient to deal first with all of the allegations of oppressive conduct in relation to membership, as a group, and then to deal with the allegations of oppressive conduct in relation to YAC's conduct of meetings and its management of its finances as a group.
4. Before turning to consider the plaintiffs' allegations of oppressive conduct by YAC, it is necessary to consider in some more detail the broader dispute between YAC and those of its members who were also members of WMYAC. The defendants say that the conduct of the directors of YAC, in relation to the membership of YAC in particular, needs to be assessed in light of that broader dispute.

(a) Concerns about the management of its YAC, including the management of its financial affairs, and the role of its CEO, Mr Woodley

1. The evidence established that for about the past decade, some of the members of YAC have held concerns about how YAC is managed, about the management of YAC's finances and the finances of YAC's subsidiaries, and about the role of its CEO, Mr Michael Woodley.
2. A number of the plaintiffs' witnesses gave evidence that they are concerned about what they consider to be a lack of transparency about YAC's finances, and about where money received by YAC is spent. By way of example, Ms Allan deposed that[174]

[f]or years I have had a concern about the adequacy of information given to members about dealings with YAC's finances.

As one of the Elders I have worried about how the money had been spent.

I do not know how the money is being spent for the benefit of the Yindjibarndi people.

1. Similarly, Ms Aileen Sandy explained that[175]

when I go to YAC meetings, one of the reasons I go is I want to know where all the money is going. They never gave us any report back from Rio Tinto. They will not tell us if they have money in the trust. I do not know what they are using the money in the trust for.

1. Mr Rodney Adams expressed a similar view. After attending a meeting of YCCL on 3 December 2015, he was concerned that '[t]here was no paperwork on how much money we had, there was nothing that showed any of this'.[176]
2. Other witnesses expressed their ongoing concern about the adequacy of YAC's financial management generally. By way of example, Mr Rodney Adams[177] and Mr John Sandy[178] were concerned that YAC's accounts had been shown to contain errors. A number of the plaintiffs' witnesses had not heard of, or were unaware of the business or functions of, a number of YAC's subsidiaries or entities related to YAC, such as Yindjibarndi Capital, Yindjibarndi Wealth or Yurra,[179] or were concerned to know what financial agreements YAC had entered into with mining companies.[180] Others were concerned about where YAC's money was being spent, felt that that they were not informed as to how the money received by YCT or YPCT was being spent,[181] felt that that money was not being spent on, or for the benefit of, the Yindjibarndi people, or had a perception that YAC money was being paid to Juluwarlu, with which Mr Woodley was associated, or that it otherwise went to Mr Woodley's family.[182]
3. A number of witnesses gave evidence to the effect that they had concerns about the management style, and conduct, of Mr Michael Woodley in his capacity as the CEO of YAC. The evidence suggested that these concerns had contributed to the decision by some members of YAC to establish, or join, WMYAC. Ms Allan deposed that the reason she joined WMYAC was because Mr Woodley would not permit her, or other members of YAC, to speak or to ask questions about YAC's finances when they attended meetings of YAC. Her evidence was that '[w]e were not being listened to so we decided to set up our own corporation'.[183]
4. Ms Aileen Sandy's understanding of why WMYAC was established was that:[184]

YAC says that we started Wirlumurra because of FMG. The old people started Wirlumurra because of all the fighting with the YAC mob. We used to go for the meetings for YAC and we would always be told to shut up. All the old people could say nothing.

We were frightened of Michael Woodley. He does not let the old people talk. We always end up in an argument. He does not listen to us, to the Elders. He makes us feel no good. He has got not respect for us. Wirlumurra started because of that.

1. Mr Ken Sandy's evidence was that at YAC meetings:[185]

Elders would ask questions, particularly of Michael Woodley, to the effect of what money had been received on behalf of YAC members and Yindjibarndi people and what it had been spent on.

Michael laughed at their questions and would not answer them. At a particular meeting in 2010, one of the Elders, Maudie Jerrold asked where the money had come from to buy houses in Karratha and one in Perth.

Lorraine Coppin and Rosemarie Woodley told Maudie she should shut up.

Michael Woodley told her to sit down and shut her mouth ... .

... the Elders in our community had lost any sense of authority and standing. Their questions were not being answered. We decided amongst ourselves that we should form a new corporation where the Elders' views would be listened to.

1. Similarly, Ms Allery Sandy's evidence was that the dispute over the governance of YAC 'has been essentially about who should be on the board and whether YAC should be run by Michael Woodley'.[186] Mr Ken Sandy's view was that 'if you are not a supporter of Michael Woodley, you are excluded from receiving any benefits such as being included in heritage surveys with companies like Rio Tinto and Hancock'.[187]
2. It is neither necessary nor appropriate to make any findings about the accuracy of these views or the legitimacy of these concerns. I should also make clear that the accuracy of these views was contested. Mr Woodley expressly denied that YAC's money was paid to his family, or expended for the benefit of his family members.[188] He also rejected all allegations that he had not allowed people to have their say in relation to YAC's business and activities or that he had bullied people.[189] For present purposes, it suffices to say that I accept that the evidence of the plaintiffs' witnesses established that some members of YAC are dissatisfied with the management of YAC, including the management of its finances, and that of its subsidiaries. It was also clear on the evidence that those concerns contributed to the decision made by some YAC members to establish, or join, WMYAC, and continue to contribute to the dispute between YAC and those of its members who are also members of WMYAC.

(b) The dispute about whether YAC should enter into an ILUA with FMG

1. The more significant area of dispute between YAC and those of its members who are also members of WMYAC pertained to whether YAC should enter into an ILUA with FMG.

1. FMG is engaged in substantial mining operations, including its Solomon Hub mine, on land which is the subject of the Yindjibarndi #1 claim. FMG obtained three mining leases in respect of that land in 2010, following determinations made by the National Native Title Tribunal (which were the subject of unsuccessful appeals to the Federal Court).[190]
2. From about 2007, YAC (in its capacity as the agent for the original Applicant in the Yindjibarndi #1 claim) opposed the grant of mining tenements to FMG. At the same time, it was involved in negotiations with FMG for a land access agreement which would govern the terms on which FMG would conduct mining operations, and the compensation which would be paid to the Yindjibarndi people for the impact of those operations on the native title rights they asserted in the Yindjibarndi #1 claim area.
3. It appears that the intention was that once it was executed by FMG, the Applicant in the Yindjibarndi #1 claim, and YAC, such an agreement would be registered as an ILUA under the NT Act. Entering into an agreement of that kind would be a significant step for the Yindjibarndi people. Generally, in the case of a registered ILUA, there is no entitlement to any compensation for the loss or impairment of native title rights and interests, other than compensation provided for in the ILUA.[191]
4. Mr Woodley's evidence was that the Yindjibarndi #1 claim was made to enable YAC, as the PBC for the common law holders of native title in that area, to negotiate compensation with FMG in respect of its mining activity on land the subject of the Yindjibarndi #1 claim.[192]
5. I digress to observe that from a commercial perspective, the very likely difficulty in negotiating an agreement of that kind - in circumstances where the Yindjibarndi #1 claim had not been determined, and when it was not clear whether the Yindjibarndi people would establish any native title rights, and most significantly, any exclusive native title rights in that area - would lie in reaching a consensus about what would constitute adequate compensation for the loss or impairment of those asserted native title rights which would occur as a result of FMG's mining operations.
6. Although YAC had opposed the grant to FMG of mining tenements on land the subject of the Yindjibarndi #1 claim, it was unable to prevent that from occurring, and FMG was able to commence mining at its Solomon Hub Project.[193]
7. By August 2010, negotiations between YAC and FMG had broken down, and YAC ceased negotiations with FMG.

The emergence of differences of view within the Yindjibarndi community about whether to enter into an agreement with FMG

1. It is apparent that there were a number of Yindjibarndi people who were in favour of continued negotiations with FMG, and who were dissatisfied with YAC's unwillingness to continue to pursue those negotiations. Those people decided to establish their own ATSI corporation, which became WMYAC. Mr Woodley said that he first learned that members of YAC were intending to set up WMYAC in August 2010 when he attended a meeting between FMG and YAC at the National Native Title Tribunal. His evidence was that at this meeting[194]

I heard Bruce Woodley, Maudie Jerrold, Jill Tucker and Allery Sandy announce that they were going to go their own separate way. I remember them saying that they had had enough, they were leaving YAC to set up their own corporation to do their own things ... .

1. The dissatisfaction felt by some Yindjibarndi people as a result of YAC's decision not to continue to pursue an agreement with FMG was very clearly reflected in a letter sent by 23 members of the Yindjibarndi #1 claim group, including the plaintiffs, to the then Minister for Regional Development and Lands, Mr Brendon Grylls MLA, dated 10 November 2010. In that letter, the signatories to it expressed their concern to the Minister that Mr Woodley:[195]

has no authority to speak or act independently of his six fellow applicants, despite the appearance that he frequently does so. It is a matter of great concern and regret to us that Mr Woodley appears to present himself as having authority to act as spokesperson for our claimant group, when that is not the case. ...

Further, the concern felt by our group as to Mr Woodley's independent actions is heightened by his failure to consult his fellow applicants or claim group members, and particularly those of the group who are, to him, elders with superior status, power and authority within the Yindjibarndi #1 native title determination applicant group.

Mr Woodley is associated with an Indigenous corporation called Yindjibarndi Aboriginal Corporation, but that entity exists for the purpose of being the 'prescribed body corporate' for the Yindjibarndi native title determination [in the Daniel decision] ... . Mr Woodley is probably authorised to speak on behalf of that corporation, but that does not extend to our native title claim, being [the Yindjibarndi #1 claim] in which Mr Woodley is merely one of seven applicants who has not been authorized to act as spokesman for our claimant group, and especially not to do so without prior consultation with us.

...

... there are legal proceedings being conducted in the names of the applicants in the Yindjibarndi #1 native title claim against FMG, in relation to the proposed issuing of certain mining leases to FMG over land within our claim area.

These legal proceedings do not have the approval or support of a substantial number, possibly a majority, of the members of our native title claim group. ... more than 100 members of the group recently have signed documents indicating that they do not wish to be in litigation with FMG and would prefer to make agreements with that company as provided for in the Native Title Act.

1. A number of the persons who signed that letter became members of WMYAC when it was established later that month.
2. WMYAC members then engaged in negotiations with FMG in relation to a land access agreement. Mr Woodley's evidence was that he first became aware of those negotiations in December 2010, when he received a copy of an unsigned land access agreement between FMG, YAC and the applicants for the Yindjibarndi #1 claim. Mr Woodley's evidence was that he had had no knowledge of this agreement before receiving a copy of it and he was not even aware that FMG was negotiating that agreement.[196]
3. By March 2011, FMG had reached an agreement with WMYAC in relation to use of land within the Yindjibarndi #1 claim area (FMG Agreement). The terms of the FMG Agreement contemplated that that agreement would be signed by the eight Yindjibarndi people who were the then claimants in Yindjibarndi #1 claim, and by YAC.[197] (YAC's agreement was necessary because it was the agent for the Applicant in the Yindjibarndi #1 claim.) At that point, the FMG Agreement was signed by the plaintiffs and Ms Mavis Pat (who was also a plaintiff in this action when it commenced).[198]
4. In order to be able to assess the submissions which were made about the implications for YAC if it entered into the FMG Agreement, or an agreement in similar terms, it is necessary to set out, in broad terms, the key planks of the FMG Agreement. The FMG Agreement was to be a tripartite agreement between FMG, various persons (including the plaintiffs) acting (or purporting to act) for and on behalf of all of the Yindjibarndi people, and YAC. If executed, the Agreement was to continue for the life of all of FMG's railway, port and mining operations within the Agreement Area (which included the area covered by the Daniel determination, and within the Yindjibarndi #1 claim area).[199] As I have already mentioned, FMG's Solomon Hub Mine project was located within the area of the Yindjibarndi #1 claim area.
5. Under the FMG Agreement, the Yindjibarndi people would consent to the grant and renewal of FMG's railway, port and mining operation,[200] but without relinquishing or surrendering any native title rights or interests in the Agreement Area, or being taken to consent to the extinguishment of any such rights,[201] and FMG would not oppose the recognition of the Yindjibarndi people's claim to native title in the Yindjibarndi #1 claim area.[202] FMG would also take all reasonable and practical measures to ensure that its operations did not harm Aboriginal cultural heritage, that it would work with the Yindjibarndi people to address any concerns they had in relation to Aboriginal cultural heritage,[203] and that it would support the development of Aboriginal business opportunities.[204]
6. It was also contemplated that FMG would pay compensation, and that that compensation would be paid to WMYAC. The compensation was to take the form of a lump sum payment to WMYAC within 14 days of the FMG Agreement being signed, a fixed royalty payment during each year in which iron ore was mined and shipped from mining tenements held by FMG within the Agreement Area, and an additional discretionary royalty which FMG may choose to pay to members of WMYAC who were employed or engaged in FMG's projects, or who were undergoing vocational training and education in relation to FMG's projects, within the Agreement Area.[205] In addition, the FMG Agreement would require FMG to establish a foundation, and contribute a not insignificant amount each year to that foundation, for the purpose of benefiting Yindjibarndi Elders (namely those Yindjibarndi people who were over 50 years of age).[206]
7. Under the FMG Agreement, the Yindjibarndi people would agree that FMG's compliance with its obligations under the Agreement, including the payment of compensation, would constitute the full and final satisfaction of all liabilities, claims for, or entitlement to, native title compensation which the Yindjibarndi people had, or would in the future have, against FMG, and the Yindjibarndi people would release FMG from any such liabilities or claims in the future.
8. Furthermore, the Yindjibarndi people were obliged to ensure that:

any [PBC] has executed and delivered to FMG a deed of covenant by which the [PBC] covenants to observe, perform, comply with and be bound by the obligations of the Yindjibarndi People under this Agreement in respect of that portion of the Agreement Area for which its details are entered on the National Native Title Register.[207]

1. I note that nothing in that obligation suggests that it was necessary, under the FMG Agreement, for YAC to be replaced as the PBC for the Daniel Determination Area or as the agent for the Applicant in the Yindjibarndi #1 claim.
2. The FMG Agreement also contemplated that FMG would apply to have it registered as an ILUA under the NT Act, and that the Yindjibarndi people would not object to that occurring.
3. A meeting of the directors of YAC was held on 10 March 2011.[208] At that meeting, the directors passed the following resolution:[209]

That the Yindjibarndi Aboriginal Corporation (YAC) continues to oppose FMG and the WirluMurra group with every legal avenue possible so that YAC protects all Yindjibarndi country, both in the Yindjibarndi native title determination and application areas because the agreement that FMG and the WirluMurra group want YAC to sign is a bad agreement for YAC and all Yindjibarndi people.

1. The partially executed FMG Agreement was sent to YAC's solicitors for execution by YAC in March 2011. Consistent with the resolution of the directors, YAC refused to execute that Agreement.

The differences of view in relation to the FMG Agreement

1. The evidence clearly establishes, and I find, that from late 2010 onwards, and up until the trial, there were genuine, and very strongly held, opposing views within the Yindjibarndi community, and within YAC's membership, about whether the Yindjibarndi people (through YAC) should enter into an agreement with FMG on the terms set out in the FMG Agreement, in advance of the determination of the Yindjibarndi #1 claim.
2. By way of example of the position of the witnesses who supported the plaintiffs' case, Ms Aileen Sandy's evidence was that it was her view that:[210]

maybe there should be an agreement with FMG. It is more important to get contracts and work rather than a lot of money. It would be good to get all the boys working.

1. Mr Ken Sandy described the dispute as being[211]

whether FMG should pay royalties now which could be applied for the benefit of all Yindjibarndi people and in particular our young people or whether YAC should continue to pursue a compensation claim. Native Title takes a very long time and I personally believe that the compensation claim will never be successful. I think that the Yindjibarndi people should obtain benefits now for our children and their children.

1. Mr John Sandy also supported entering into an agreement sooner rather than later. His evidence was:[212]

I want some of the benefits of native title agreements [to] be achieved in my lifetime and in the lifetime of my children. In my opinion it is necessary for the preservation of the Yindjibarndi people, its culture, its laws and traditions that immediate benefits be invested in the community.

1. Others supported the FMG Agreement because they doubted whether the Yindjibarndi people would be able to establish exclusive native title rights in the Yindjibarndi #1 claim area which would warrant the extent of compensation YAC had sought in its negotiations with FMG.[213] By way of example, Mr Vincent Adams' view was that[214]

the dispute has arisen because Michael Woodley is more interested in money than in community. He ... made claims in Court about how our Birdarra law is practised which were not true. The claims were exaggerated, and appeared to me to be designed to obtain a better native title claim or more compensation from mining companies like FMG.

...

... Michael [Woodley] has all his eggs in one basket. This is the claim for exclusive possession against FMG. By seeking this claim he has spent millions of dollars that has been received by YAC. Those funds have not flowed through to the community, to the Elders or to our children. By trying to put all his eggs in one basket he has deprived the Yindjibarndi people of opportunities that could have been developed.

Each year an Elder passes away with nothing, nothing at all. I consider that to be very wrong.

1. Mr Rodney Adams accepted that there was a division within the Yindjibarndi community over whether or not the agreement FMG proposed should be entered into or not, and that that was a serious division within the Yindjibarndi community.[215] He also agreed that it was generally the case that YAC was associated with those members of the Yindjibarndi community who did not want to enter into the Agreement,[216] and he accepted that it was the case that the members of WMYAC favoured entering into the Agreement so as 'to move forward'.[217]
2. Mr Adams explained that his understanding of the FMG Agreement was premised on Yindjibarndi people not having exclusive possession of the Yindjibarndi #1 claim area, but that in return, they would be provided with jobs and opportunities,[218] and he supported the FMG Agreement for that reason:[219]

through all the years I've been going to Roebourne, I never seen Rio Tinto ... approach us with anything ... . Their rules are that they give people employment if they're highly educated and for this FMG to come in and do this and give us an opportunity and to train our people on the job, that was good I found that that was really good in a way.

1. Mr Adams went on to explain that '[w]e just wanted to stop the fight and go forward'.[220]
2. In contrast, YAC was opposed to entry into the FMG Agreement. The evidence established that its opposition to the FMG Agreement was twofold. First, it is apparent that YAC did not consider that the compensation payable under the FMG Agreement was adequate compensation for the loss or impairment of the native title rights of the Yindjibarndi people in the Yindjibarndi #1 claim area, which it was hoped would be recognised in the Yindjibarndi #1 claim. The evidence of Mr Mack, one of the directors of YAC, was that the dispute was one concerning 'fair compensation'.[221] He said that under the FMG Agreement, the Yindjibarndi people would get a specified benefit of $4 million per year, but that in return 'the whole country is at risk ... [and] ... FMG would help themselves and mining all parts Yindjibarndi country'.[222] Consequently, he thought the Agreement was 'a no good deal and that's why I wouldn't sign it'.[223] His evidence was that the concern was not so much about whether the dispute was about '[m]oney now or money sometime in the future' as counsel for the plaintiffs suggested,[224] but rather whether the FMG Agreement represented 'the right agreement so we can look after our old people'.[225]
3. Mr Woodley explained that YAC did not sign the FMG Agreement for the following reasons:[226]

I have read the Agreement. I believed then and believe now that the Agreement would not be in the interest of the Yindjibarndi future, I consider this Agreement compared to other agreements we have with other mining companies to be very bad for YAC and for Yindjibarndi people. The Agreement covered all of the determination area in Daniel ... and the Yindjibarndi #1 claim area. ... If YAC and the applicants for the Yindjibarndi #1 claim signed the Agreement, the Yindjibarndi would forego their right to compensation against the State. This is important because the Yindjibarndi people have claimed exclusive native title rights over the Solomon project and the value of the compensation could be high.

1. The same concern was set out in newsletters YAC distributed to its members shortly after the plaintiffs signed the FMG Agreement. By way of example, a newsletter from YAC dated March 2011 indicated that:[227]

If Yindjibarndi are granted EXCLUSIVE native title to the Yindjibarndi #1 Claim area, or parts of it, and we do not sign away these rights in the proposed FMG agreement, then FMG would not be so cocky. They would be forced to by Australian Law to pay substantial compensation to Yindjibarndi people for their Solomon mines and for the damage they have done.

1. Mr Woodley, and YAC's legal counsel, Mr Irving, had urged YAC members to 'continue to reject the FMG offer, because, he argued, ... the FMG Agreement is unacceptable because it is too low and it doesn't allow the Yindjibarndi people to speak for, or have any control over their country, where FMG has tenements in Yindjibarndi country'[228] and that if YAC were to sign the FMG Agreement it would not be acting in the best interests of the Yindjibarndi people, the beneficial owners of those rights and interests.[229]
2. The second aspect of YAC's opposition to the FMG Agreement was that under the terms of that Agreement, any money paid would be paid to WMYAC.[230] Mr Mack's evidence was:[231]

if we were to sign the deal, that money going to Wirlumurra. Not Yindjibarndi Aboriginal Corporation or Yindjibarndi.

1. Mr Mack deposed that in his view the proposed agreement which WMYAC had negotiated with FMG was not 'a good deal to sign. All the compensation goes to Wirlumurra. YAC misses out. YAC represents all Yindjibarndi people. They miss out too'.[232]
2. Similarly, Mr Woodley explained that one of the reasons for YAC's opposition to the FMG Agreement was that 'all of the compensation paid under it would be paid to Wirlumurra. YAC would get nothing'.[233]
3. It thus appears to have been assumed that if YAC were to enter into the FMG Agreement, the terms of that agreement (especially in so far as it contemplated that compensation would be payable to WMYAC) would be nonnegotiable. There was no evidence to suggest that that assumption was well founded. There was no evidence, for example, that FMG would not have been agreeable to making payments to YAC, or to a trust associated with YAC. And it cannot be inferred that FMG would consider such a term to be non-negotiable, in circumstances where YAC held a significant bargaining advantage, namely that no agreement could be made without its consent, in its capacity as the agent for the Applicant in the Yindjibarndi #1 claim.
4. Nevertheless, I accept that the payment of compensation to WMYAC was one of the reasons why YAC opposed the FMG Agreement, and refused to enter into it.

Attempts to secure YAC's agreement to enter into the FMG Agreement

1. As I have already observed, as YAC was the agent for the Applicant in the Yindjibarndi #1 claim, no agreement with FMG could proceed without YAC's agreement. The plaintiffs, and Ms Mavis Pat, called a meeting of the members of the Yindjibarndi #1 claim group on 21 December 2010, in an attempt to secure a resolution to support the FMG Agreement.[234]
2. The meeting notice[235] indicated that the motions to be put to the meeting included motions to the effect that all objections on behalf of the Yindjibarndi #1 claim group members against FMG's Solomon Hub project land tenure should be withdrawn, that the Applicant in the Yindjibarndi #1 claim should give consent to any tenement applications by FMG in respect of land in the Yindjibarndi #1 claim area, and that the Applicant in the Yindjibarndi #1 claim immediately proceed to finalise a land access agreement with FMG in terms approved by the majority of the claim group membership.[236]
3. Ms Allery Sandy attended the meeting, which was held at the 50 Cent Hall in Roebourne on 21 December 2010. Her evidence was that she understood that[237]

three of the named applicants in that native title claim group would be asking Yindjibarndi people at the meeting to consider previous actions by the other named applicants, including Mr Woodley, concerning resolutions associated with FMG's mining tenement applications and a proposed ILUA with FMG.

1. Mr Woodley attended the meeting. His evidence was that while he recalled that the meeting 'never got started', he was unable to remember why.[238] However, in her evidence, about which she was not crossexamined, Ms Allery Sandy shed light on why the meeting had to be abandoned. She explained:

Michael Woodley spoke throughout the whole meeting and would not allow any other person to speak by interrupting and talking over questions by members. The meeting was disbanded after one hour when many people walked out.[239]

1. The plaintiffs and Ms Pat then called another meeting of the Yindjibarndi #1 claim group for 16 March 2011. The meeting notice proposed the same items for discussion as those which were to have been discussed at the meeting in December 2010, but also contained an additional item to the effect that, if the Yindjibarndi #1 claimants did not comply with the directions of the majority of the Yindjibarndi #1 claim group, then Mavis Pat and the plaintiffs were authorised to apply to the Federal Court to remove them as Applicant in the Yindjibarndi #1 claim.[240]
2. One hundred and seventyone people from the claim group attended that meeting. Also in attendance were a number of lawyers, including Mr George Irving, YAC's legal counsel, and Mr Ronald Bower and several other lawyers from the legal firm Corser & Corser, who were then acting for WMYAC. The meeting was also attended by Mr Andrew Forest on behalf of FMG. Mr Woodley recalled that 'a big bunch of FMG representatives' were at the meeting.[241] Security personnel and police officers also attended the meeting.
3. A set of minutes of the meeting, prepared by Corser & Corser,[242] which were in evidence, make plain that strongly felt opposing views were expressed about whether the meeting should proceed at all, and about the issues on the agenda. The minutes note, at various points, that arguments broke out between various members of the claim group, and that there was 'disruption from Michael Woodley and surrounding persons, stating that they did not want the Agenda to proceed'.[243] Mr Woodley acknowledged that he opposed the discussion.[244] Mr Woodley's evidence was that he and many other Yindjibarndi people, including some of the claimants for the Yindjibarndi #1 claim, left the meeting before any voting took place.[245] The minutes indicate that the total number of votes cast in respect of each of the various items on the agenda was markedly less than the total number of persons who signed the attendance register.
4. The minutes, and the evidence of Ms Allery Sandy, established that during the meeting a resolution was passed (with 120 votes in favour, and none against) in favour of the following resolution:[246]

That the Yindjibarndi #1 Native Title Claim Applicants immediately proceed to finalise a land access agreement with [FMG] in terms approved by the majority of the claim group membership.

1. In addition, the minutes of the meeting record that the following resolution was also passed (by 112 votes in favour and no opposing votes):[247]

That Aileen Sandy, Mavis Pat and Sylvia Allan be authorized to apply to the Federal Court of Australia under section 66B of the Native Title Act 1993 (Cth) for the removal of any Yindjibarndi #1 claim applicant who refuses to sign documents or do other things necessary to be signed or done by the Yindjibarndi #1 claim applicants to give effect to any motion passed in this meeting.

1. Notwithstanding the meeting's resolutions, YAC refused to enter into the FMG Agreement,[248] and continues to do so to date.
2. Mr Vincent Adams acknowledged that the dispute about the FMG Agreement represented a serious division in the Yindjibarndi community.[249]
3. The depth of feeling about the dispute over the FMG Agreement was illustrated by newsletters distributed by YAC to its members prior to each of the meetings of the Yindjibarndi #1 claim group discussed above. Those newsletters contained statements highly critical of WMYAC and some of its members, and of FMG. Ms Allery Sandy and Mr Vincent Adams regarded those statements as offensive, and as constituting attacks on them.[250]

Attempts to change the Applicant in the Yindjibarndi #1 claim

1. On 2 September 2011, the plaintiffs, together with Ms Mavis Pat, made an interlocutory application in the Yindjibarndi #1 claim proceedings in the Federal Court, in which they sought orders that they, on behalf of the Yindjibarndi people, be appointed to jointly replace the persons who comprised the original Applicant in the Yindjibarndi #1 claim.[251] No order to replace the original Applicant was made by the Federal Court on that occasion.
2. On 15 June 2012, the persons comprising the original Applicant, apart from the plaintiffs and Ms Pat, made an application pursuant to s 66B of the NT Act in the Yindjibarndi #1 claim proceedings in the Federal Court for an order that they replace the original Applicant in the Yindjibarndi #1 claim (the Replacement Applicant).[252] The objective of that application was thus to exclude the plaintiffs and Ms Pat as members of the original Applicant in the Yindjibarndi #1 claim. Ms Sylvia Allan's evidence was that at no stage did YAC inform or consult with her about that application.[253]
3. On 15 February 2013, McKerracher J ordered that that application be allowed and that the Replacement Applicant[254] (that is, the group of persons which did not include the plaintiffs and Ms Pat) jointly replace all of the persons who had previously comprised the original Applicant in the Yindjibarndi #1 claim.[255] On 26 March 2013, the persons comprising the Replacement Applicant in the Yindjibarndi #1 claim appointed YAC as agent on behalf of the Applicant in those proceedings.[256]
4. However, that was not the end of the efforts by those members of YAC, who were also members of WMYAC, to be a part of the Applicant in the Yindjibarndi #1 claim. In 2015, Rodney Adams, Sylvia Allan, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith called a meeting of the Yindjibarndi native title holders and Yindjibarndi #1 claim group members for 23 June 2015, at the 50 Cent Hall in Roebourne (June 2015 ballot). (It does not appear that a meeting was actually held. Instead, the 50 Cent Hall was set up as a polling booth, and voting took place at the appointed time on 23 June 2015.)
5. According to the notice of the June 2015 ballot,[257] the purpose of that 'meeting' was for Yindjibarndi people to vote, by secret ballot, on a number of resolutions. (It was proposed that voting on those resolutions would also be possible at voting stations in Carnarvon and in Perth.) The resolutions put to the vote in the June 2015 ballot included that:[258]
   • Rodney Adams, Sylvia Allan, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith be authorised to replace the Applicant in the Yindjibarndi #1 claim;
   • The conditions of authorisation of the previous Applicant in the Yindjibarndi #1 claim, including the appointment of YAC as agent, be revoked;
   • The Replacement Applicant be authorised and directed to consent to a determination of native title like the Ngarluma Yindjibarndi determination (that is, a determination similar to the Daniel determination) (resolution 5);
   • A new corporation the Yindjibarndi Native Title Aboriginal Corporation (YNTAC) should be the PBC for the Yindjibarndi #1 claim area, and should replace YAC as the PBC for the Daniel Determination Area;[259]
   • YNTAC should replace YAC as the agent of the Yindjibarndi people under the Participation Agreement with Rio Tinto.[260]
6. On 3 July 2015, Rodney Adams, Sylvia Allan, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith (the Adams Applicant) made a s 66B application in the Federal Court in the Yindjibarndi #1 claim proceedings, for an order that they jointly replace the persons then comprising the Applicant in the Yindjibarndi #1 claim.[261] The evidence apparently relied upon in support of that application included an affidavit sworn by Ms Davina Boyd, a community development consultant, who deposed that she had assisted the Adams Applicant to conduct the June 2015 ballot, and that the resolutions put to the vote had been passed.[262] Ms Sylvia Allan also swore an affidavit in support of that application,[263] in which she deposed that she understood that as a result of the resolutions having been passed, she and other members of the Adams Applicant were authorised by the members of the Yindjibarndi #1 claim group to make the application.
7. That application was dismissed by Rares J on 21 July 2015.[264] His Honour concluded that the notice of the 'meeting' and the resolutions to be put to the ballot was not sent to all known members of the Yindjibarndi #1 claim group (and in fact that over half that claim group did not receive a written notice at all); that the notice and the resolutions did not identify with precision the persons comprised in that claim group; that what occurred was not, in fact, an authorisation meeting at all; that the notice of the 'meeting' and of the resolutions was misleading in that it did not clearly state that what was proposed (in resolution 5) was that the Adams Applicant would try to reach a consent determination on the basis that the Yindjibarndi people did not have exclusive native title rights and interests in the Yindjibarndi #1 claim area; and that the Yindjibarndi Elders who were members of the Adams Applicant and who gave evidence namely Allery Sandy, Sylvia Allen and Maudie Jerrold had no understanding of the nature of the authorisation or of the implications of resolution 5, or of the consequences for the Yindjibarndi #1 claim if the Adams Applicant was authorised to act in accordance with resolution 5. His Honour also concluded that he would not, in any event, have exercised his discretion in favour of the Adams Applicant having regard to a number of factors, including that WMYAC had made it known that those who voted, and attended at its offices, would receive supermarket vouchers, that FMG 'orchestrated the convening of the meeting and the voting procedure to a considerable degree',[265] and that 'the significant role that FMG played in the promotion and conduct of the meeting, and the benefit to it if resolution 5 were passed, were not revealed to persons who might be interested in voting'.[266]

The belief of YAC's directors that FMG was behind WMYAC and the attempts of its members to pursue entry into the FMG Agreement

1. A large plank of the defendants' case was that the conduct which is said to constitute 'oppressive conduct' by YAC was informed by the belief held by the directors of YAC that it was WMYAC, supported by FMG, which stood behind the plaintiffs and the other YAC members who had taken steps to try to secure YAC's entry into the FMG Agreement, to try to replace the Applicant in the Yindjibarndi #1 claim, and YAC as the agent for the Applicant. The defendants contended that throughout this proceeding, the plaintiffs and WMYAC had acted as if they were one and the same, and in substance, the plaintiffs represented WMYAC's interests in this proceeding.[267] I understood that submission to amount, in effect, to a submission that the present dispute should be seen, not as a dispute between YAC and some of its members, but in truth as a dispute between YAC and WMYAC. The defendants' case was that that characterisation of the dispute was relevant to the exercise of the Court's discretion whether to grant relief in the event that it found that YAC had engaged in oppressive conduct,[268] particularly with respect to applications for membership of YAC, and that that characterisation was also relevant as part of the context within which the facts relating to the issues in dispute should be viewed.
2. It is not necessary to reach any conclusion as to whether WMYAC in fact sought to take control of YAC, with a view to entering into the FMG Agreement, or an agreement in similar terms. To the extent that the beliefs of YAC's directors and CEO may be relevant to the question of relief for oppressive conduct, the only question I need determine is what YAC's officers believed when they engaged in the conduct alleged to amount to oppressive conduct.
3. The evidence established that the directors and the CEO of YAC saw the attempts by the plaintiffs and other members of WMYAC to compel YAC to enter into the FMG Agreement, and their subsequent attempts to replace YAC as the agent for the Applicant in the Yindjibarndi #1 claim, as constituting an attack by WMYAC on YAC with the objective of taking control of YAC, or removing it as the agent for the Applicant in the Yindjibarndi #1 claim, so as to enable the FMG Agreement to be executed. I have reached that view for the following reasons.
4. First, the foundation for that view lay in the negotiations between WMYAC members and FMG, which occurred without YAC's knowledge. Mr Woodley explained that he had not been aware that WMYAC members were negotiating an agreement with FMG during 2010 and 2011. He said that he first became aware that that had occurred because he was sent a copy of the Agreement by a staff member in the office Mr Vince Catania, a member of parliament who had tried to assist communications between FMG and YAC.[269] Mr Woodley explained that:[270]

I felt that this was an attack on Yindjibarndi people and an attack on YAC to undermine its role as the authorised PBC.

... I feared the partnership between Wirlumurra and FMG. I feared this because of the way that Wirlumurra was formed and the way I believe it negotiated the [FMG] Agreement with FMG behind YAC's back. I also feared this because of what I saw as a change in the attitude and character of the Wirlumurra leaders.

1. Secondly, Mr Woodley's evidence was that he believed at the time, and still believes, that that[271]

application to replace the applicants on the Yindjibarndi #1 claim and their opposition to the current applicants' applications in that claim to replace the applicant was an attempt by Wirlumurra to gain control of the Yindjibarndi #1 claim. I believe then and still believe that Wirlumurra was trying to do this so the applicants would sign the [FMG] Agreement.

1. Both Mr Mack[272] and Mr Woodley[273] believed that FMG stood behind, and supported, the steps taken by WMYAC members in seeking to have YAC sign the FMG Agreement, and in organising the Yindjibarndi #1 claim group meetings, with a view to permitting WMYAC members to take control of YAC so that it could enter the FMG Agreement, or to bypass YAC so as to secure an agreement of that kind with the Applicant in the Yindjibarndi #1 claim.
2. As at the date of the trial, the terms of the FMG Agreement (which, as I have said, was negotiated in 2010-2011) were out of date. However, it was apparent that Mr Mack and Mr Woodley remained concerned that WMYAC members, and FMG, still sought to enter into a similar agreement with the Yindjibarndi people in the future. Mr Woodley's evidence was that:[274]

I believe that FMG's endgame is to have an indigenous land use agreement on its terms that deals with the question of compensation for the effect of its Solomon mine on the Yindjibarndi people's native title rights and interests and control of how the Yindjibarndi people utilise the compensation for our own development.

If [WMYAC] gains control of YAC or replaces YAC as the PBC then I believe that YAC or a new PBC will make an agreement with FMG about compensation and that this agreement will be a bad deal for Yindjibarndi.

1. Furthermore, Mr Woodley said he[275]

believed then, and still believe[s] that Aileen Sandy [and] Sylvia Allan['s] ... application to replace the applicants on the Yindjibarndi #1 claim ... was an attempt by [WMYAC] to gain control of the Yindjibarndi #1 claim

I believe that FMG has supported [WMYAC] every step of the way since 2010.

1. I am satisfied that in all of the circumstances, it was not unreasonable for YAC, acting through its directors and CEO, to have formed the belief that WMYAC was supported by FMG, and sought to take control of YAC so that it could enter into an agreement with YAC, or replace YAC as the trustee of the native title rights held by the Yindjibarndi people. That that was the case was put beyond doubt when, on 16 March 2011, the plaintiffs organised the Yindjibarndi #1 claim group meeting seeking authority to make an application to replace the Applicant in the Yindjibarndi #1 claim. From that point, there was no doubt that WMYAC members sought to take control of the Yindjibarndi #1 claim, and ultimately to exclude YAC as the agent for the Applicant in that claim.
2. In addition, I am satisfied that from 2011 until the trial, YAC, acting through its directors and CEO, continued to believe WMYAC still intended to try to reach an agreement with FMG, and that FMG was still pursuing an agreement in similar terms. By way of example, Mr Mack was asked about his understanding of the s 66B application made by the plaintiffs (as part of the Adams Applicant) in 2015:[277]

So, you thought that was the result of this application was going to be you get replaced, they will sign up the agreement?Yes. They will sign the agreement. Yes.

1. Mr Mack also confirmed that his concern was that if the s 66B application succeeded and if YNTAC became the PBC in respect of the Yindjibarndi #1 claim area, in the end, there would an agreement signed with FMG.[278]
2. Mr Woodley's evidence was that he believed that if persons associated with WMYAC became directors of YAC, they would enter into an agreement with FMG about compensation, which Mr Woodley considered would be a 'bad deal' for the Yindjibarndi people.[279] That was so, even though he acknowledged that the FMG Agreement was now out of date because a number of the mining tenements referred to in it had been withdrawn or abandoned by FMG.[280] Mr Woodley explained that he held that concern because the fact 'that a mining an exploration tenement has been withdrawn from my country doesn't move from the fact that FMG ... still want our whole country ... they still want a wide claim agreement of our country'.[281] Furthermore, there was evidence that FMG had made a more recent application for a mining lease in the area covered by the Yindjibarndi #1 claim.[282] That confirms that the extent of the compensation which FMG may be required to pay the Applicant in the Yindjibarndi #1 claim remains an ongoing issue, which is not confined to FMG's operation of its Solomon Hub mine project.
3. In my view, in all of the circumstances, it was not unreasonable for the directors and CEO of YAC to have continued to hold those beliefs, having regard to what occurred in 2015 and 2016, for the following additional reasons.
4. First, the reasonableness of that belief was confirmed by the circumstances surrounding the June 2015 ballot. Mr Mack's evidence was that he was aware that the persons who had organised the ballot were directors, or members, of WMYAC.[283] That WMYAC had organised the ballot was also apparent to those who attended at the 50 Cent Hall on 23 June 2015. Mr Mack 'saw lots of people who do not normally come to Yindjibarndi #1 claim group meetings vote at this meeting. These are people who have an Yindjibarndi side to their family but who do not follow Yindjibarndi'.[284] Mr Woodley's evidence was that people at a WMYAC tent outside the 50 Cent Hall were handing out howtovote flyers. He also saw people going into the 50 Cent Hall who he did not recognise as Yindjibarndi people.[285]
5. The evidence established that WMYAC had organised the June 2015 ballot. Mr Rodney Adams confirmed that WMYAC arranged for the hire of the 50 Cent Hall and for the other voting stations,[286] that WMYAC had arranged the logistics of organising the voting and the meetings,[287] and that WMYAC had arranged to engage employees of a company based in Queensland to staff the ballot boxes and count the votes.[288] Mr Adams also accepted that all of the persons who sought to replace the then current applicants for the Yindjibarndi #1 claim were either directors of WMYAC or had been founding members of WMYAC,[289] that he and the other directors of WMYAC had discussed the decision to hold the meeting on 23 June 2015 at WMYAC board meetings,[290] and that the resolutions put to the vote at the meeting on 23 June 2015 had been framed by the directors of WMYAC.[291]
6. Secondly, it would have been obvious to all concerned that WMYAC was receiving financial support from some third party. As it was not a trustee of any native title rights, WMYAC did not have any authority to enter into an ILUA to receive compensation, yet it had engaged lawyers, and had the resources to pursue applications in the Federal Court and to organise the meetings of the Yindjibarndi #1 claim group discussed above. In the circumstances, the most likely source of that financial support was FMG.
7. Thirdly, as I have already noted, in his decision in respect of the s 66B application made by the Adams applicant, Rares J found that FMG 'had orchestrated the convening of the meeting and the voting procedure to a considerable degree'[292] and that it had paid for a number of expenses associated with that meeting.[293] There was evidence that at least one of YAC's directors Mr Mack[294] was aware of that judgment. That judgment provided confirmation to YAC's directors that FMG was behind attempts by WMYAC's members to remove YAC as the agent for the Applicant in the Yindjibarndi #1 claim, and to enter into a land access agreement with FMG.
8. Fourthly, the members of WMYAC had made no secret of the fact that they had, and that they welcomed, an association with FMG. At an AGM held for YAC on 30 November 2015, Mr John Sandy distributed a statement on behalf of himself and a number of other persons who were members of WMYAC who were standing for election as directors of YAC.[295] The statement indicated:[296]

• We are very proud of our relationship with FMG.
• We have secured training and jobs for hundreds of Yindjibarndi people. We have secured contracts valued at hundreds of millions. None of this happened before FMG came along. Wirlumurra does not receive millions of dollars in royalties like YAC does.
• We asked FMG to support us here today. FMG has given us financial and other support to help us make sure that all members can have a say at this meeting.

1. That statement referred expressly to an agreement with FMG:[297]

• We have no native title agreement with FMG. We are not in negotiations with FMG for a native title agreement.
• But, we have an excellent relationship with them and we are the best people to negotiate a native title agreement with them. (emphasis added)

1. In summary, I find that from late 2010 and up to the date of the trial, YAC's directors and its CEO, Mr Woodley, honestly, and not unreasonably, believed that:

(i) WMYAC stood behind the plaintiffs and the other YAC members who took steps to oblige YAC to enter the FMG Agreement, and who sought to have it removed as the agent for the Applicant in the Yindjibarndi #1 claim;

(ii) WMYAC's objective in doing so was, initially, to enter into the FMG Agreement, and later to enter into an agreement with FMG in similar terms to the FMG Agreement;

(iii) WMYAC members were determined to achieve this objective they had been willing to apply to the Federal Court to remove YAC as the agent for the Yindjibarndi #1 claim, and to seek to remove YAC as the PBC for the common law holders in respect of the Daniel claim; and

(iv) FMG was supporting WMYAC and its members in seeking to achieve these objectives.

1. Counsel for the plaintiffs emphasised that the evidence did not establish that, had it been successful in replacing the Applicant in the Yindjibarndi #1 claim, WMYAC would inevitably have entered into an agreement with FMG.[298] He pointed to the fact that Mr Rodney Adams denied that the purpose behind the June 2015 ballot was to try to take YAC's responsibilities away and give them to a new, WMYACcontrolled Applicant in the Yindjibarndi #1 claim.
2. Mr Adams' evidence was that the purpose was 'to be fair with all our members. That's the whole purpose of us trying to start something new, so we can be fair with all our people around that'.[299] However, it was also apparent from Mr Adams' evidence that he understood that the objectives of the June 2015 ballot were that he and other WMYAC members could replace the Applicant in the Yindjibarndi #1 native title claim,[300] that YNTAC could replace YAC as the agent of the Yindjibarndi people in the Yindjibarndi #1 claim,[301] and that YNTAC would then be the PBC for any native title determination that resulted from the Yindjibarndi #1 native title claim,[302] with the result that YAC would not hold the native title rights and interests of the common law holders in the Yindjibarndi #1 claim area on trust, and would not have the right to manage those native title rights.[303] Mr Adams clearly understood that if all of that occurred, YNTAC could enter into an agreement with FMG.[304]
3. Mr Adams was asked whether he and the other WMYAC members were proposing 'to strip YAC of all of its functions and virtually all of its finances', but he denied that the aim was to 'strip YAC'.[305] Instead, he said that they wanted to 'try and make YAC a better ... corporation so we can help our members and sort everything out'.[306] It was far from clear how Mr Adams was able to reconcile that view with his participation in the s 66B application which, had it succeeded, would have seen YNTAC replace YAC as the PBC for the common law holders in relation to the Daniel Determination Area,[307] replace YAC under the Participation Agreement,[308] in circumstances where YAC received nearly all of its income from the Participation Agreement.[309] Mr Adams accepted that if YAC's funding was cut off in that way, it would be extremely difficult, and perhaps impossible for it to carry out its objectives as set out in its Rule Book.[310] Mr Adams accepted that it was fair to say that he and the other WMYAC directors did not support and uphold YAC's objectives.[311] While that evidence was expressed in very general terms, in fairness I think it must properly be understood as an acceptance that Mr Adams and the WMYAC directors did not agree with the objectives of YAC's directors in relation to compensation for interference with Yindjibarndi native title interests, especially in relation to the Yindjibarndi #1 claim. I do not think there is any reason to doubt that Mr Adams, for example, supported the objects set out in YAC's Rule Book, such as to provide relief from poverty for Aboriginal people and to protect the traditions, laws and culture of the Yindjibarndi people.
4. In any event, the objective purpose of the June 2015 ballot was to pass resolutions, the effect of which, if adopted and acted upon, would be to bypass YAC so that it could no longer stand in the way of an agreement being entered into between FMG and the members of the Yindjibarndi #1 claim group, and so that it would no longer have any role to play in the Yindjibarndi #1 claim.
5. Counsel for the plaintiffs emphasised that the plaintiffs and other WMYAC members were not negotiating with FMG for a land access agreement. That was the stated position of WMYAC members seeking election as directors of YAC in November 2015.[312] However, it was also clear that the objective of the plaintiffs and other members of YAC who were members of WMYAC remained that if they became directors of YAC, they would 'negotiate an agreement with FMG.'[313] As Mr Sandy deposed, their position was that they would ensure that YAC 'negotiates and signs native title agreements which benefit all Yindjibarndi people.'[314] There is nothing in the evidence which would suggest that the terms of any such agreement were likely to be markedly different from those in the FMG Agreement. After all, the members of WMYAC who had been willing to enter into the FMG Agreement clearly regarded its terms as sufficiently advantageous to the Yindjibarndi people to warrant doing so.
6. Counsel for the plaintiffs submitted that the dispute simply concerned:

conflicting views as to how best to utilise the actual and potential financial benefits associated with traditional Native Title land rights to best advance the present and future needs of their community and the families within it.'[315]

1. While I accept that that was one aspect of the dispute, the dispute between YAC and those of its members who were also members of WMYAC was not, and is not, confined to a dispute about the terms of the FMG Agreement, or any similar agreement between YAC and FMG. However it was also a dispute about the management of YAC, including as to its financial management.
2. Later in these reasons, I consider the implications of that belief on the part of YAC's directors and CEO in relation to the question of relief for oppressive conduct.
3. Before turning to consider the allegations of oppression in relation to membership decisions, it is convenient to recall the requirements of the CATSI Act in relation to membership of ATSI corporations, and the principles which have emerged from the cases concerning allegations of oppression in the context of membership disputes.

(c) Membership of YAC requirements of the CATSI Act and of YAC's Rule Book

1. A person is a member of an ATSI corporation if they were a member on the registration of the corporation, or if they agree to become a member after the corporation is registered.[316] A person becomes a member if they apply for membership, if they are eligible for membership, if their membership application is accepted by the directors of the corporation, and if their name is entered onto the register of members.[317]
2. The only criterion for membership of an ATSI corporation which is set out in the CATSI Act is that a member must be at least 15 years of age.[318] An ATSI corporation's constitution may provide for other eligibility requirements for membership[319] and for the circumstances in which a person's membership of the corporation will be cancelled on the ground that the person is ineligible to be a member.[320] The directors of an ATSI corporation are responsible for deciding membership applications in respect of the corporation.[321]
3. The directors of an ATSI corporation must not accept an applicant for membership unless the applicant applies in the required manner, and meets the eligibility for membership requirements of the corporation.[322] Even if those requirements are complied with, however, the CATSI Act expressly grants to the directors the discretion to refuse to accept the membership application.[323]
4. YAC's Rule Book contains membership criteria for YAC members. At all material times,[324] YAC's eligibility rule has provided:

3.1 Who is eligible?

Subject to these rules and the PBC Regulations, a member must be:

(a) at least 18 years of age; and

(b) a Yindjibarndi person who holds in common the body of traditional law and culture governing the determination area and who identifies as Yindjibarndi.

1. I accept the submission of counsel for the defendants that, in addition to the age requirement, rule 3.1 effectively embodies three criteria. The first is that the applicant must be a Yindjibarndi person. It was not in dispute that that is a reference to a person who descended from one of the Yindjibarndi apical ancestors identified in the Daniel determination. Secondly, the applicant must hold in common the body of Yindjibarndi traditional law and culture of the Daniel Determination Area. Broadly speaking, that appears to mean that the applicant must follow or observe Yindjibarndi law and culture. However, the evidence established that there are differing views within the Yindjibarndi community as to precisely what that means. Thirdly, the applicant must identify as Yindjibarndi. So, for example, a person may have a Yindjibarndi apical ancestor, but may not follow Yindjibarndi law and culture, and may instead identify with, and follow, the law and culture of an ancestor who was not Yindjibarndi, but who belonged to another Aboriginal group.
2. Under YAC's Rule Book, a person becomes a member if they apply in writing, if they are eligible under rule 3.1, and if the directors agree. The application for membership for YAC can be found at sch 1 to the YAC Rule Book. It requires the applicant to set out their full name, their address and to declare that they are eligible for membership of YAC.[325]
3. However, at all material times, YAC's Rule Book has provided that 'the directors may refuse to accept a membership application. If they do, they must notify the applicant in writing of the decision and the reasons for it.'[326]
4. The parties did not dispute that the directors have a discretion as to whether to accept an application for membership of YAC. There is no doubt that that discretion is not an unfettered one. Given the other requirements of the CATSI Act, including s 166-1, and the duties on directors of an ATSI corporation, there can be no doubt that the discretion to refuse an application for membership (which otherwise satisfies the criteria for membership under YAC's Rule Book) must be exercised in good faith, fairly and rationally, having regard to the merits of each application, consistently with the objects of YAC, and not for an improper purpose.
5. An ATSI corporation is required to set up and maintain a register of members.[327] Ordinarily, if an application for membership is accepted, the corporation must enter the member on the register within 14 days of acceptance.[328]
6. An individual who is a member of an ATSI corporation will cease to be a member of that corporation if they resign, die, or if their membership is cancelled.[329] One of the bases on which a person's membership may be cancelled is for misbehaviour by the member. However, in that case, the cancellation must be effected in the manner and circumstances provided for in the CATSI Act, namely by a special resolution passed by the corporation in a general meeting.[330] The general meeting must be satisfied that the member 'has behaved in a manner that significantly interfered with the operation of the corporation or of corporation meetings'.[331] A copy of the resolution of the meeting must be given to the members as soon as practicable after the resolution has been passed.[332] The significance of the decision to terminate a person's membership of an ATSI corporation is reflected in both the statutory requirement for a special majority at a general meeting of the corporation, and the high threshold set by the statute for conduct which will be considered to warrant expulsion.
7. YAC's Rule Book also provides for how a person stops being a member of YAC. At all material times, rule 3.6 has provided that a person stops being a member if they resign in writing, they die, or if their membership is cancelled. YAC's Rule Book sets out how a member's membership may be cancelled. At all material times, rule 3.7 has provided:[333]

• can't be contacted for two years
• misbehaves or his or her conduct is detrimental to the interests of the corporation
• is not an Aboriginal or Torres Strait Islander person
• no longer observes or complies with Law and Customs

the member can only be removed by special resolution at a general meeting. The directors must then send that person a copy of the special resolution at their last known address, as soon as possible after it has been passed.

If a person is not eligible for membership for some other reason, the directors can cancel their membership by passing a resolution at a directors meeting. Before the meeting, directors need to give the member 14 days to object in writing. If the member objects, the directors can't cancel the membership. The member can only then be removed at a general meeting by resolution.

In deciding to commence cancelling a person's membership, the directors shall consider the matter in accordance with law and customs. The process to cancel membership of a member shall not be commenced unless at least 80% of the directors vote in favour of the decision.

(original emphasis)

(d) Allegations of oppressive conduct in the context of membership disputes

1. Disputes over the membership of corporations and associations giving rise to claims of oppression are not infrequent. These disputes typically arise in the context of the cancellation of memberships, but can also arise in cases where membership is refused.
2. In the latter case, the individual applicant may not be entitled to seek relief against the corporation for oppressive conduct, pursuant to the Corporations Act 2001 (Cth) or the CATSI Act, because the applicant will not be a member of the corporation. However, the conduct may nevertheless have been contrary to the interests of the members as a whole.
3. The authorities in this area all turn on their facts, but some general principles can be discerned. By way of example, if the directors of a corporation reject membership applications, without regard to whether that rejection would be consistent with the corporation's objectives, or by reference to some criteria other than the corporation's objects, that decision might be characterised as one that no reasonable person could reach, or which was made for a purpose foreign to the corporation's objects, operations and affairs, or as an exercise of the directors' power for an improper purpose.[334]
4. Considering (and refusing) applications for membership as a bundle, rather than individually, may be a factor which supports the conclusion that the decision(s) were a misuse of the power to determine membership applications. That is because such an approach may support a conclusion that there was no consideration of the merits of the application, or that the directors applied an inflexible attitude to all applications.[335]
5. Differences of view between members of a corporation or association, about decisions or future courses of action which should be taken by the corporation or association, are an inevitable part of the dynamic of human relationships, and a legitimate feature of any organisation which operates on democratic principles.[336] For directors of a corporation to deny membership, or terminate membership, in order to quash debate, or silence dissent, risks the characterisation of that action as a misuse of power, and oppression of the minority. However, in a case where members, or applicants for membership, hold views inimical to the objectives of the corporation itself, denial or termination of membership may be justified as being in the best interests of the corporation.[337]
6. In identifying the best interests of a corporation or association, those interests equate to the interests of all of its present and future members, rather than the interests of any particular section of its membership.[338]
7. Against that factual background, and in light of those principles, I turn, now, to consider each of the allegations of oppression by the plaintiffs which pertained to decisions about the membership of YAC.

7. Whether the plaintiffs have established that YAC engaged in oppressive conduct 7.1 Alleged denial of membership rights and improper conduct in dealing with membership applications

1. In this section of the judgment, I deal with the plaintiffs' claims of oppression arising from the alleged denial of their membership rights and improper conduct by YAC in dealing with membership applications. These claims are, in essence, as follows:

(a) Alleged wrongful conduct of YAC in excluding and hindering members in respect of their rights to participate as members of YAC, and invalid resolutions made by YAC in relation thereto, namely by:

(i) alleged wrongful exclusion of members from meetings of YAC, in particular the purported AGM of 15 December 2010; and

(ii) alleged wrongful purported cancellation of memberships on 15 December 2010 with respect to 26 members of YAC, and continued denial of that membership until at least 21 March 2012;

(b) Threatened conduct of YAC to convene a meeting for the purpose of amending rules 3.1 and 3.7 of YAC's Rule Book, in order to limit the persons who can be members of YAC and the grounds upon which membership may be cancelled;

(c) Wrongful conduct and exercise of power by YAC and its purported officers in refusing and/or failing to consider membership applications, during the period 2011-2016;

(d) Wrongful denial of membership to persons approved by the board in 2014 to be eligible for membership;

(e) Approval (in November 2015) of membership applications by YAC's purported board, and subsequent registration of the membership applicants as members of YAC, for an improper purpose;

(f) Apparent bias in dealing with membership applications in June 2016.

(a) Alleged wrongful conduct of YAC in excluding and hindering members in respect of their rights to participate as members of YAC, and invalid resolutions made by YAC in relation thereto

1. The plaintiffs alleged two instances of oppression within this category, namely:

(i) The wrongful exclusion of members from meetings of YAC, in particular the purported AGM held on 15 December 2010; and

(ii) The wrongful purported cancellation of memberships on 15 December 2010 with respect to 26 members of YAC, and the continued denial of that membership until at least 21 March 2012.[339]

(i) Wrongful exclusion of members from meetings of YAC, in particular the purported AGM held on 15 December 2010

1. In summary, the plaintiffs allege that in late 2010, a newsletter published by Juluwarlu contained a notice of an AGM for YAC to be held on 15 December 2010 at Roebourne. The plaintiffs allege that '[n]umerous members of YAC were physically prevented from attending the meeting' and were 'told by Michael Woodley that they were "no longer part of YAC"'.[340] The plaintiffs' case is that that conduct by Mr Woodley constituted conduct by YAC which was contrary to s 166-1(1)(d) and (e) of the CATSI Act.
2. In large part, the defendants do not dispute the plaintiffs' allegations, save that they do dispute that members of YAC were physically prevented from attending the meeting. The defendants' case is that, prior to the AGM, there was a discussion between Mr Woodley and various members of YAC, who were also members of WMYAC, who were accompanied by their lawyers. The discussion took place outside the Juluwarlu office, where the AGM was to be held. The defendants' case is that Mr Woodley told those persons that they could not attend the meeting because they were not members of YAC, but that no one was physically prevented from entering the office and that the WMYAC members left peacefully with their lawyers.[341]

1. Ms Sylvia Allan and Ms Allery Sandy both gave evidence in relation to this aspect of the plaintiffs' case. Mr Woodley also addressed the allegation in his evidence. Also in evidence was a copy of a video recording of the AGM held on 15 December 2010 (which I have viewed).[342] The first part of that video appears to depict the incident outside the Juluwarlu offices just prior to the YAC AGM, the subject of the plaintiffs' allegation.
2. The evidence of Ms Allan and Ms Sandy was that on 15 December 2010, each of them was a member of YAC,[343] and each of them tried to attend the AGM at the Juluwarlu offices. There were a number of people gathered outside, including Mr Woodley and Mr Warrie. Both Ms Allan and Ms Sandy deposed that they tried to enter the meeting, but Mr Woodley prevented them from doing so.
3. Ms Allan's evidence was the Mr Woodley refused to move out of the way and said 'I will not let you in because you're a breakaway, you are no longer a part of YAC'.[344] She argued for approximately 30 minutes that she should be allowed to enter but was refused entry.[345] Ms Sandy's evidence was that Mr Woodley said something similar to her.[346] She confirmed that Ms Allan argued with Mr Woodley for about 30 minutes, but he would not let them in to the meeting.[347] Ms Sandy deposed that she also saw a number of other YAC members being denied entry to the meeting.[348] Neither Ms Allan nor Ms Sandy suggested that the exchange with Mr Woodley involved physical contact.
4. Ms Allan's evidence in relation to this incident was not challenged in crossexamination, and Ms Sandy was not crossexamined at all. I accept their evidence.
5. In broad terms, Mr Woodley's evidence was consistent with the evidence of Ms Allan and Ms Sandy, and his evidence was not challenged in crossexamination. His evidence was that prior to the AGM, a number of persons, including Ms Allery Sandy, Ms May Adams and Ms Sylvia Allan attended the Juluwarlu offices, along with two lawyers from Corser & Corser (who were acting for WMYAC by that stage). Mr Woodley's evidence was as follows:[349]

I said to these people that the board felt that by attending the AGM you were not acting in the best interest of YAC and Yindjibarndi nation. We then had a discussion about the issues that were concerning both sides. I talked about them establishing a new group and going against the YAC and not wanting to continue to work together so that we can get the best deals from mining companies; the deals that will set the foundation for our future and for our children. The discussion went for about 20 minutes or half an hour. I said that they should not attend the meeting because of our concerns towards their actions. Then they left. There was some heated discussion but these people were not prevented from attending in any physical way.

1. The video of this discussion depicts a large number of Aboriginal people standing outside or adjacent to an office. They can be seen engaging in a heated discussion with a man who appears to be Mr Woodley, who is standing a short distance away. The exchange continues for about 20 minutes. The audio is difficult to follow, but it is apparent that the discussion concerned whether some of the persons present had been 'kicked out' of YAC, or treated as though they had resigned from YAC, on the basis that they had acted as if they did not wish to be members of YAC. Eventually Mr Woodley advised those present that the meeting would start, but told some of those present that they could not come in because they were not members of YAC. A large number of persons then left the area. No physical altercation of any kind can be seen in the video.
2. Given that the plaintiffs' case did not identify the particular individuals excluded from the meeting, other than Ms Allan and Ms Sandy, I will, for the most part, confine my findings to them.
3. Having regard to the evidence to which I have referred, I find that Ms Allan and Ms Sandy (together with a number of other YAC members) attended the premises of Juluwarlu for the purpose of attending the YAC AGM on 15 December 2010. Mr Woodley, who was YAC's CEO, made clear that they would not be permitted to attend the AGM.
4. In so far as the plaintiffs contend that they were physically prevented from attending the meeting, that allegation was not made out. There was no evidence to support a finding of that kind. However, it is very clear that Ms Allan and Ms Sandy were prevented from attending the meeting nevertheless. Mr Woodley made it very clear that they would not be permitted to do so.
5. I find that when Mr Woodley acted in that way, he was acting in his capacity as YAC's CEO, and on its behalf.

Did YAC's conduct constitute oppressive conduct of the kind described in s 1661(1)(d) or (e) of the CATSI Act?

1. The defendants admitted that YAC did not have a lawful basis to exclude the WMYAC members from the YAC AGM held on 15 December 2010, that the WMYAC members excluded from the meeting were denied the opportunity to participate in the meeting, and that the exclusion of the WMYAC members from the meeting was oppressive conduct pursuant to s 1661(1) of the CATSI Act.[350] That concession was properly made. For the reasons outlined in respect of the next incident of alleged oppressive conduct, at the time that Ms Allan and Ms Sandy were prevented from attending the meeting, there was no basis for concluding that either of them had ceased to be members of YAC. Under YAC's Rule Book, a person stops being a member of YAC only if they resign in writing, they die, or if their membership is cancelled.[351] It was not alleged that Ms Allan or Ms Sandy had resigned in writing, and at the time of the incident outside the Juluwarlu office, their membership had not been cancelled in compliance with the requirements of the Rule Book (or at all).
2. Excluding a member of a corporation from attending an AGM is a serious intrusion on their rights of membership. The Rule Book provides that the rights of a member of YAC include that they can attend, speak, vote and put forward resolutions at a general meeting.[352] A general meeting provides an opportunity for members to raise concerns about the corporation and to ask questions of its directors and executive officers. The business of an AGM of a corporation is of particular significance. It includes the election of directors, and the consideration of reports required to be laid before the AGM, including financial reports and directors' reports.[353] Accordingly, to prevent a member from attending an AGM also prevents that member from participating in the election of directors, and from being in a position to ask questions about the important reports which are considered at that meeting.
3. In my view, the exclusion of Ms Allan and Ms Sandy from the AGM on 15 December 2010 was conduct that is properly described as unfair, burdensome and wrongful. It was, therefore, conduct which was oppressive to those persons in their capacity as members of YAC, contrary to s 1661(1)(e) of the CATSI Act. The defendants do not dispute that conclusion.

What relief, if any, should be granted in respect of this incident of oppressive conduct?

1. The defendants' case was, however, that the Court should not make an order under s 166-5 in respect of this conduct for a variety of reasons: because the oppression had ceased and been remedied (in that all members who were excluded from the AGM on 2010 have been able to participate in subsequent AGMs); because the oppression took place years before the trial, and at a time when the dispute between WMYAC and YAC was 'particularly intense'; and because the conduct occurred because the directors and members of YAC who attended the AGM on 15 December 2010 considered that the WMYAC members had resigned their membership.[354]
2. I do not accept all of those submissions. However, as I note below at [273], it is clear that YAC subsequently acknowledged that Ms Allan and Ms Sandy (and the other YAC members whose membership was purportedly cancelled) in fact remained members of YAC, that their membership had not been validly cancelled at the meeting on 15 December 2010, and that they were subsequently permitted to attend meetings of YAC. In those circumstances, there is no order which the Court could now make which is capable of remedying the oppression involved in YAC's impugned conduct. Considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
3. I will, however, consider this conduct further below, in determining whether YAC's conduct, overall, warrants the making of orders under s 166-5 of the CATSI Act.

(ii) Wrongful purported cancellation of memberships on 15 December 2010 with respect to 26 members of YAC, and continued denial of that membership until at least 21 March 2012

1. The plaintiffs' case is that at the YAC AGM on 15 December 2010, YAC purported to cancel the membership of 26 members, including the plaintiffs, on the ground that each misbehaved, or that his or her conduct was detrimental to the interests of YAC.[355] The plaintiffs contend that the names of those whose memberships were cancelled were omitted from YAC's membership list of 2 July 2011.[356]
2. The plaintiffs' case is that the purported cancellation of those memberships was void and of no effect because of the failure by YAC to comply with numerous provisions of the CATSI Act and of YAC's Rule Book.[357] The plaintiffs say that YAC did not send to those persons whose memberships were purportedly cancelled a notice of a special resolution to remove them as a member, nor give them any other notice that the cancellation of their membership would be put to the AGM.[358] The plaintiffs also say that notice of the AGM was not sent to YAC's members, but merely published in the Juluwarlu newsletter.[359] They also say that, in any event, that notice was itself deficient because the proposed agenda which it included merely referred to an item of business described as the 'Cancellations of Members'.[360]
3. The defendants do not dispute the plaintiffs' contentions as to what occurred at the AGM on 15 December 2010.[361] The defendants also admit that the resolution passed at the AGM, and which cancelled the memberships, was void on the ground that YAC did not comply with particular procedural requirements under the CATSI Act and under YAC's Rule Book.[362] The defendants concede that the purported cancellation of the memberships was oppressive conduct of the kind described in s 166-1(1) of the CATSI Act for this reason.[363]
4. However, the defendants deny that the purported cancellation of memberships involved a failure to comply with all of the provisions of the CATSI Act and YAC's Rule Book on which the plaintiffs rely, or that the cancellation of memberships involved an abuse of power by YAC.[364]

1. On 15 December 2010, immediately after the incident described above at [242] [251], YAC proceeded to hold its AGM in the Juluwarlu office building in Roebourne. The minutes record that at that time, YAC had 136 members, although only 26 members were present at the meeting. The meeting was filmed.[365] Item 5 on the agenda for the meeting concerned the 'Cancellation of Members'. The minutes record that 'the group discussed what should be done about the Yindjibarndi people who have decided to form their own aboriginal corporation which acts in opposition to the interests of the YAC' and which 'had been set up in conjunction with [FMG]'.[366] The minutes also record that:

Many of those Yindjibarndi people who support [WMYAC] have previously been members of [YAC] however they indicated that they wished to resign their YAC membership at the YAC general meeting held in the Roebourne Community Hall on 10/08/10. ...

The YAC members decided to cancel the memberships of all those people who are members of [WMYAC] and also all those people who signed a letter to the Honourable Brendan Grylls, Minister for Regional Development and Lands, dated 10 November 2010. ... The YAC constitution clause relied upon to cancel the membership of the YAC members ... is clause 3.7, and in particular takes into account the wording of cancellation of memberships who 'misbehaves or his or her conduct is detrimental to the interests of the corporation'. (original emphasis)

1. The minutes record that the meeting unanimously passed a resolution that the members of WMYAC and the signatories to a letter sent to Mr Brendon Grylls on 10 November 2010 were cancelled as members of YAC (with the exception of four members who had signed a resignation form from WMYAC), with the result that 26 persons had their YAC membership cancelled. The minutes record that:[367]

The YAC members decided to cancel the memberships of all those people who are members of [WMYAC] and also all those people who signed a letter sent to the Honourable Brendon Grylls, Minister for Regional Development and Lands, dated 10 November 2010. ... The YAC constitution clause relied upon to cancel the membership of the YAC members ... takes into account the wording of cancellation of members who 'misbehaves or his or her conduct is detrimental to the interests of the corporation'. (original emphasis)

1. The defendants admit that the resolution passed, by a unanimous vote, was in the following terms:[368]

Resolution One Agenda Item 5

That the members of the [WMYAC] and the signatories to the letter sent to Brendan Grylls on 10/11/10 are cancelled as members of the YAC except for Russell Sandy, Dora Solomon, Billy King and Steven Hubert. The 26 members to be cancelled from membership of the YAC are Sylvia Allan, Aileen Sandy, Stephen Adams, Clifton Mack, Marlene Harold, May Adams, Amy Jerrold, Berry Malcolm, Allery Sandy, Wendy Hubert, Bruce Woodley, Ricky Sandy, Gloria Lee, Mavis Pat, Ken Sandy, Celia Sandy, Jimmy Horace, Mark Horace, Jill Tucker, Diana Smith, Charmaine Adams, Joanne Willis, Esther Pat, John Sandy, Linda Norman and Harry Mills.

1. (I note that there were other references in the evidence to the cancellation of the memberships of 27 persons on this occasion. The additional person referred to in such other evidence appears to be Maudie Jerrold.[369] However, in the minutes of the AGM on 15 December 2010, Maudie Jerrold is noted as having previously resigned from YAC, in writing.[370] For present purposes, that discrepancy need not be resolved.)
2. The defendants admitted that the names of those persons did not appear in membership lists subsequently prepared by YAC.[371]
3. The defendants also admitted that the membership of those 26 persons was cancelled on the ground that each misbehaved, or that his or her conduct was detrimental to the interests of the corporation for the purposes of rule 3.7 of YAC's Rule Book.[372]
4. The defendants admitted that the reason for the cancellation of the memberships was confirmed in a letter dated 19 June 2011, from the second defendant (Mr Warrie), who was then the Chairperson of YAC, to some of the persons whose memberships were cancelled,[373] including Ms Allery Sandy.[374] Mr Warrie confirmed that their membership had been cancelled at the AGM held on 15 December 2010, and advised of the reason why the memberships were cancelled. The letter stated:[375]

Your membership was cancelled via clause 3.7 of the Yindjibarndi Aboriginal Corporation constitution, and in particular takes into account the wording of cancellation of members who 'misbehaves or his or her conduct is detrimental to the interests of the corporation'.

1. The persons whose memberships were cancelled did not receive any notice of a special resolution to cancel their membership, nor were they given any opportunity to object or to put a contrary case.[376] The defendants admitted that that was the case.[377]
2. The defendants admitted that YAC's conduct in cancelling the memberships was challenged in a letter dated 20 December 2010, from the solicitors acting for those persons, Corser & Corser.[378] Corser & Corser advised that their clients had asserted that they had not resigned as members, that they remained members of YAC, and that they wished to participate in the AGM. Corser & Corser asserted that the reasons for denying their clients entry to and participation in the AGM were without legal basis, that the AGM on 15 December 2010 was held invalidly, and that any resolutions purportedly passed were also invalid.[379]
3. This complaint about the wrongful cancellation of membership appears to have simmered away for the better part of a year. On 3 November 2011, WMYAC's solicitors wrote to ORIC to complain about YAC's conduct,[380] in the context of broader complaints about the manner in which YAC was dealing with membership applications. (That broader dispute about membership, and the Registrar and ORIC's involvement, is discussed further below at [1054] [1067].) WMYAC's solicitors requested that ORIC send a representative to the 2011 AGM which, at that stage, was proposed to be held on 30 November 2011.[381] ORIC declined to do so on this occasion.[382]
4. The plaintiffs, together with Ms Pat, then brought an application for an interlocutory injunction to restrain YAC from holding the 2011 AGM, which it proposed to hold on 30 November 2011. (That application is discussed further below at [290] [293].) The plaintiffs contended that they were members of YAC, and that they had not been given proper notice of the AGM on 30 November 2011. In advancing that case, the plaintiffs contended that the purported cancellation of their memberships (and those others whose memberships were cancelled on 15 December 2010) was invalid, with the result that they remained members of YAC. Master Sanderson concluded that on the available evidence, it appeared that the plaintiffs had a very strong case for contending that the resolutions at the AGM on 15 December 2010 were ineffective, and that the required notice for the proposed AGM on 30 November 2011 had not been given, so that that meeting could not be validly held. Having taken into account the balance of convenience, Master Sanderson was satisfied that the proper course was to restrain the holding of the proposed AGM on 30 November 2011.[383]
5. At some stage soon after that decision, YAC accepted that the purported expulsion of the 26 members on 15 December 2010 was not effective. By the time of YAC's 2011 AGM, which was eventually held on 21 March 2012, the dispute over the cancellation of the 26 memberships had been resolved. The minutes of that meeting recorded that Mr Irving advised that each of the persons whose memberships had been cancelled at the AGM on 15 December 2010 had had their membership reinstated, had been invited to attend that AGM as a full member of YAC, and had been notified of the AGM in accordance with the requirements of YAC's Rule Book.[384] The plaintiffs acknowledged in their SIFC that the members whose memberships had been cancelled on 15 December 2010 were permitted to attend and vote at the AGM on 21 March 2012.[385]

Did YAC's conduct constitute oppressive conduct of the kind described in s 1661(1)(d) or (e) of the CATSI Act

1. The defendants admitted that the resolution cancelling the memberships of the 26 members was void on the ground that YAC did not comply with the procedural requirements under the CATSI Act and the Rule Book, that YAC's conduct in purporting to cancel the memberships involved a failure to comply with the requirements of the rules 3.7 and 4.5 of the Rule Book, and s 15015(2)(c), s 150-35(2), s 150-35(3) and s 201-35 of the CATSI Act, and consequently that the purported cancellation of those memberships was oppressive conduct within s 166-1(1) of the CATSI Act.[386] However, the defendants deny that the purported cancellation of the memberships involved any abuse of power.[387] It is unnecessary to decide that question, in view of the defendants' concession that YAC's conduct was oppressive conduct for the purposes of the CATSI Act.
2. In my view, that concession was properly made. The purported cancellation of the 26 memberships did not comply with the procedural requirements for a special resolution of an ATSI corporation, or of YAC in particular, and did not give the members notice of the proposed resolution, or the opportunity to advance a contrary case. It was therefore not made in accordance with the requirements of the Rule Book,[388] or with the requirements of the CATSI Act in relation to a special resolution.[389] It was wrongful in that sense, and therefore oppressive conduct for the purpose of s 1661(1)(e) of the CATSI Act. Further, there was no evidence to suggest that YAC's directors had considered the cancellation of the 26 memberships in accordance with law and customs, as required by rule 3.7. In my view, that was wrongful, and therefore oppressive conduct for the purposes of s 1661(1)(e). Further, the failure to give notice to the members concerned, the failure to provide them with the opportunity to know the case against them, and to advance a case against cancellation, was clearly a denial of procedural fairness,[390] and was in my view, contrary to ordinary standards of fair dealing, and therefore oppressive conduct under s 1661(1)(e).

What relief, if any, should be granted in respect of this incident of oppressive conduct?

1. The defendants submitted that the Court should not make an order under s 166-5 of the CATSI Act for a variety of reasons: because the oppression had ceased and been remedied (in that all members who were excluded from the AGM on 2010 have been able to participate in subsequent AGMs); because the oppression took place years before the trial, and at a time when the dispute between WMYAC and YAC was 'particularly intense'; and because the conduct occurred because the directors and members of YAC who attended the AGM on 15 December 2010 considered that the WMYAC members had resigned their membership.[391]
2. The fact that the oppressive conduct occurred in circumstances where the dispute between WMYAC and YAC was 'particularly intense' hardly excuses the conduct in question. More importantly, I do not accept the submission that the directors and members of YAC acted on the basis that the 26 persons whose memberships were cancelled had actually resigned their membership. Perhaps that submission was really intended to convey that the directors and members acted on the basis that the members in question had acted inconsistently with membership of YAC. But in any event, the evidence, viewed as a whole, does not support the conclusion that the members in question had resigned, or that there was any proper basis for concluding that they had done so in accordance with YAC's Rule Book. YAC's Rule Book required that a member's resignation be in writing. Had the directors genuinely believed that Ms Sandy, Ms Allan and the other YAC members who were excluded from the meeting had resigned their membership of YAC, there would have been no need to put a resolution to the AGM that the membership of those persons be cancelled. (Rather, the resolution could have been to accept, or to note, the resignation of each of those members.) The resolution to 'cancel' the memberships, and YAC's reliance on the conduct of those members as the basis for that cancellation, is quite inconsistent with the existence of any genuine belief that the members in question had resigned their membership of YAC.
3. However, I do accept the defendants' submission that the oppression in question has ceased and been remedied. As I have noted above, the cancellation of each of the 26 memberships was recognised by YAC as invalid, and those persons were recognised as having remained members, and were able to participate in subsequent AGMs of YAC.
4. In those circumstances, there is no order which the Court could now make which is capable of remedying the oppression involved in YAC's impugned conduct. Considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
5. I will, however, consider this conduct further below, in determining whether YAC's conduct, overall, warrants the making of orders under s 166-5 of the CATSI Act.

(b) Threatened conduct of YAC to convene a meeting for the purposes of amending rules 3.1 and 3.7 of YAC's Rule Book, in order to limit the persons who can be members of YAC and the grounds upon which membership may be cancelled

1. This category of alleged oppression relates to an AGM for YAC, which was proposed to be held on 30 November 2011. It was proposed that amongst the items of business to be considered at that meeting was an amendment to YAC's Rule Book to amend rules 3.1 and 3.7 in relation to the criteria for membership of YAC, and cancellation of the membership of YAC (proposed amendments).
2. Items 7 and 8 on the proposed agenda for that AGM concerned the proposed amendments to YAC's Rule Book in the following terms:[392]
   1. Resolution proposed to change the current YAC constitution:

At rule 3.1 regarding qualification of membership of the organisation, the following insertions are to be added from 3.1(b) as follows:

(c) competent in knowing and speaking the Yindjibarndi language fluently

(d) competent in, and always practice, Yindjibarndi Birdarra Law and culture

(e) knowledgeable of Yindjibarndi country, songs, stories, dances, history, sites, Galharra, family relationships and kinship systems

(f) loyal to the YAC and must not participate, associate or support any other organisation or organisations that oppose the YAC objectives with regard to protecting the native title and common law rights and interests of the Yindjibarndi nation.

1. Resolution proposed to change the current YAC Constitution

At rule 3.7 regarding cancelling the membership of members from the organisation, the following insertion is to be added as a dot point below the current fourth dot point as follows:

• contravenes any of the membership eligibility criteria listed at rule 3.1.

1. The plaintiffs contended that the proposed amendments gave rise to 'threatened or actual breaches of obligations, or irregularities', in that the proposed resolutions were not properly notified to members, in breach of YAC's Rule Book and the CATSI Act, that the substance of the proposed amendments was contrary to the CATSI Act, and that the proposed amendments would, for that reason, be contrary to the interests of the members of YAC as a whole, and oppressive, within the meaning of s 166-1 of the CATSI Act.[393] The plaintiffs also contended that even if the proposed amendments fell within YAC's rule making power, they would, for that reason, be contrary to the interests of the members of YAC as a whole, and would constitute conduct in contravention of s 1661(1)(e) of the CATSI Act.[394] Finally, the plaintiffs contended that the proposed amendments were 'so extravagant that no reasonable person could consider that they were for the benefit of YAC'[395] and that the proposed amendments constituted an exercise of the rule making power which was not undertaken in good faith, and which, for that reason also, was conduct contrary to s 166-1(1)(d) or s 166-1(1)(e).[396]
2. YAC did not proceed with either the AGM on 30 November 2011, or with the proposed amendments. The defendants' case was that, in those circumstances, the proposed amendments could not be oppressive conduct within s 166-1 of the CATSI Act.[397]

1. An AGM of YAC was called for Wednesday, 30 November 2011 in Roebourne. It was not in dispute, and I find, that on 9 November 2011, YAC published a notice in the Pilbara News newspaper concerning the proposed AGM on 30 November 2011.[398]
2. It was also not in dispute, and I find, that that notice set out the items of business on the proposed agenda for that AGM, including proposed resolutions to amend the YAC Rule Book in a number of ways (as set out at [282]).[399]
3. The proposed amendments thus had three planks: a criterion for membership of knowledge, competence, and practice of Yindjibarndi language, law and culture (the culture criterion); a criterion for membership of loyalty to YAC, and dissociation from any organisation which was seen to oppose YAC's objectives in relation to the native title rights and interests of the Yindjibarndi people (the loyalty criterion); and a basis for cancelling the membership of existing YAC members if they contravened any membership eligibility criterion, including the new criteria (the disqualification ground).
4. It was not in dispute, and I find, that YAC did not send notice of the proposed AGM to its members, or to those of its members whose memberships had purportedly been cancelled at the AGM on 15 December 2010.[400]
5. The plaintiffs' case was that YAC intended to preclude those persons whose memberships had been cancelled from attending the meeting.[401] The defendants' case was that YAC did not post notices of the proposed AGM to its members, because that was its policy at the time, and that consequently YAC did not intend to exclude the persons whose memberships it had purportedly cancelled on 15 December 2010.[402] YAC's failure to give notice of the proposed AGM to its members does not, in my view, assist in discerning an intention to exclude persons it no longer regarded as members from attending that meeting. However, after having purported to cancel the membership of those persons, and having done nothing by this stage to reverse that decision, there is no reason to suppose that YAC's directors would permit those persons to participate in the proposed AGM. In my view, it is more likely than not that the directors did not intend to permit those persons whose membership had been cancelled to attend, and more importantly, to participate in, the proposed AGM on 30 November 2011.
6. The plaintiffs, together with Ms Pat brought an application for an interlocutory injunction to restrain YAC from holding the proposed AGM on 30 November 2011.[403] In that application, the plaintiffs contended that the resolutions made at the AGM on 15 December 2010 were ineffective. They contended that they were given no notice prior to the meeting of any special resolution to cancel the membership of numerous members of YAC, including their own. The notice of the general meeting on 15 December 2010 did not set out a special resolution of that kind. Furthermore, in relation to the proposed AGM on 30 November 2011, the plaintiffs contended that as they had not been validly excluded from membership, they remained members and had not been given notice of the meeting in accordance with the Rule Book.
7. In addition, the plaintiffs, in that application, sought to injunct YAC from putting a resolution to the AGM for the proposed amendments of its Rule Book. The plaintiffs in that action contended that the proposed amendments were contrary to the CATSI Act and, in particular, that the loyalty criterion was contrary to s 15015(2)(c) and s 15035(2) of the CATSI Act, which covered the field with respect to the cancellation of a person's membership for misbehaviour. It was contended that to pass the amendments would amount to a breach of s 661(5)(c) of the CATSI Act, which requires a corporation's internal governance rules to be consistent with the CATSI Act.[404] The plaintiffs also argued that the proposed amendments were contrary to the interests of the members of YAC, were oppressive and attracted the statutory remedies available under s 166-5 of the CATSI Act. They argued that it would be oppressive to require all of the members of the corporation to comply with the membership criteria because that could enable persons to be excluded from membership of YAC, despite the fact they were among the group who held native title under the Daniel determination.[405]
8. Master Sanderson granted an interlocutory injunction restraining YAC from proceeding with the AGM proposed for 30 November 2011 until the required notice had been given to all members of YAC; from preventing those whose memberships had been cancelled from participating in the next AGM; and from considering, or permitting to be passed at any meeting, any of the proposed amendments.[406]
9. Master Sanderson's reasons for granting the interlocutory injunction are not determinative of the present question as to whether the plaintiffs have established that YAC's conduct was oppressive, which must be determined by reference to the evidence adduced at the trial. However, for completeness I note that the Master was persuaded, on the evidence before him, that the plaintiffs had a very strong case for contending that the resolutions at the AGM on 15 December 2010 were ineffective, and that the required notice for the proposed AGM on 30 November 2011 had not been given, so that that AGM could not be validly held. Master Sanderson was also satisfied that the injunction sought by the plaintiffs should be granted on the basis that it was arguable that the proposed amendments were oppressive, and concluded that 'it is arguable the changes would exclude from the corporation persons who would otherwise be members and may have an interest in the native title'.[407]
10. There was no evidence that the proposed amendments were pursued at any stage after the interlocutory injunction was granted by Master Sanderson. Rather, it appears that the proposed amendments were abandoned.
11. The plaintiffs adduced some evidence to establish that the proposed amendments would not be in the interests of the members of YAC as a whole, or that the proposed amendments were not pursued in good faith or for the benefit of YAC. There was, for example, some evidence that the culture criterion which the proposed amendments sought to add to YAC's membership criteria did not reflect the criteria by which, as a matter of Yindjibarndi law and custom, a person would be regarded as Yindjibarndi. Ms Allan's evidence was that being able to speak and understand the Yindjibarndi language fluently was not a requirement for being regarded as being a member of the Yindjibarndi community, because '[i]n the Yindjibarndi community a person is not treated as being any less a Yindjibarndi person because they are not fluent in our language.'[408] Consequently, it was Ms Allan's view that if this aspect of the culture criterion were included as a requirement for membership of YAC, it would 'mean that some Yindjibarndi people could be excluded from YAC membership for a bad reason that has nothing to do with whether or not they are Yindjibarndi people'.[409]
12. Ms Allan's evidence also addressed the culture criterion in so far as it would have required competency in, and practice of, Birdarra law and culture. Ms Allan's view was that it[410]

would be unfair and wrong to change the YAC rules in this way because there are Yindjibarndi people that I know, who through no fault of their own have been unable to learn everything there is to know about our people's law and culture.

These are people whose lives have taken them away from our traditional country and from close contact with many other Yindjibarndi people for extended periods of time. But they will always be Yindjibarndi.

1. Ms Allan was concerned that if the culture criterion were to be included in the membership criteria in YAC's Rule Book:

then every Yindjibarndi person who is a member of YAC or who would like to be a member of YAC will face the risk of not being able to have YAC membership for reasons which have nothing to do with them being a Yindjibarndi person.

...

... Yindjibarndi people who have every right to become members of YAC will be subjected to some kind of test as a condition of YAC membership based on language competency or their practice of law and culture ... .

... If that came about, then any Yindjibarndi person who should be accepted as a Yindjibarndi person on the basis of their descent from a parent who was a Yindjibarndi person would be at risk of being excluded from membership of YAC.[411]

1. It was Ms Allan's evidence that '[i]n Yindjibarndi law and culture, none of those things should be used to decide whether or not a person should be recognised as a Yindjibarndi person or whether they can participate in things happening in the Yindjibarndi community'.[412]
2. However, other evidence in the trial (which I discuss at length later in these reasons at [620], [622] [634]) illustrated that there are differing views within the Yindjibarndi community about the criteria which are applied, as a matter of Yindjibarndi law and custom, to determine whether a person is to be regarded as Yindjibarndi. It is neither necessary nor appropriate for this Court to make a determination about any such criteria for the purpose of resolving this action, or to make a finding about the legitimacy of the proposed amendments, in so far as they sought to introduce the culture criterion into the criteria for membership of YAC.
3. However, there was also other evidence which emerged in the trial as to the purpose of the proposed amendments, and particularly the loyalty criterion. Mr Mack was a director of YAC at the time that notice of the proposed AGM on 30 November 2011 was given.[413] Mr Mack accepted that the loyalty criterion was included in the proposed amendments 'to try and ensure that [YAC] had a basis for rejecting [WMYAC] members who were applying for membership'.[414] Having regard to the cancellation of the 26 memberships in December 2010, there can be little doubt that the loyalty criterion (in conjunction with the disqualification ground) was also intended to provide a basis to cancel the memberships of YAC members who were also members of WMYAC.
4. The WMYAC members to whom the proposed amendments were directed thus included persons who were members of YAC, or who would be entitled to membership of YAC, by virtue of meeting YAC's existing criteria. (Were that not the case, the proposed amendment would not have been required.) I find that the proposed amendments, at least in so far as they concerned the loyalty criterion and the disqualification ground, would have applied in that way.

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or s 166-1(1)(e) of the CATSI Act?

1. The defendants' case, as I have said, was that the proposed AGM on 30 November 2011 did not proceed, and that the proposed amendments were not pursued, and therefore that YAC's conduct did not constitute oppressive conduct of the kind described in s 166-1 of the CATSI Act. The defendants' alternative case was that even if the conduct was oppressive, then no relief should be granted under s 1665 of the CATSI Act, given that the AGM on 30 November 2011 did not proceed, and the proposed amendments were not pursued.
2. In my view, the fact that the AGM on 30 November 2011 did not proceed, and that the proposed amendments were not pursued, does not preclude a finding that YAC's conduct in pursuing the proposed amendments was of the kind covered by s 166-1(1)(d) or (e) of the CATSI Act, if that conduct otherwise fell within the scope of those provisions. The question for present purposes is thus whether, at the time that it occurred, the conduct in question proposing to hold an AGM, and proposing amendments to YAC's Rule Book was conduct which could properly be regarded as contrary to the interests of the members of YAC, or oppressive, within the meaning of s 1661(1)(d) or (e) of the CATSI Act.
3. YAC's failure to provide notice of the proposed AGM on 30 November 2011 to its members was conduct in breach of the requirements of the CATSI Act, and of YAC's Rule Book. The CATSI Act requires that written notice of a general meeting must be given by the corporation to each of the members entitled to vote at the meeting, at least 21 days prior to the meeting.[415] If a special resolution is to be proposed, the notice must set out the intention to propose the special resolution.[416] As at November 2011, YAC's Rule Book required that 21 days' notice of an AGM be given to members, either personally, or in a manner which accorded with Aboriginal and Torres Strait Islander custom, or sent to the member's address, by post, facsimile or email.[417] If a special resolution were proposed, that notice must set out the special resolution.[418]
4. To fail to give a member proper notice of an AGM risks depriving that member of one of the fundamental rights of membership of an ATSI corporation, namely to attend, speak and vote at a general meeting.[419] To engage in conduct which is liable to have that consequence is, in my view, conduct which is oppressive for the purposes of s 166-1(1)(e) of the CATSI Act. (I note that in this case, not only did YAC fail to notify the persons it regarded as members, but it also failed to notify those persons who were, in fact, members but whose membership had been purportedly cancelled at the AGM in December 2010. Failure to notify the latter members of YAC of the proposed AGM also constituted oppressive conduct for the purposes of s 166-1(1)(e) of the CATSI Act.)
5. In my view, YAC's conduct in proposing the proposed amendments, at least in so far as they sought to include the loyalty criterion and the disqualification ground in the membership rules for YAC, was also conduct which was oppressive for the purposes of s 1661 of the CATSI Act. The defendants' case appears to have been premised on an argument that YAC's conduct in proposing the proposed amendments was not conduct which was capable of properly being described as oppressive conduct because the proposed amendments were never voted on and passed. In other words, the argument appeared to be that until such time as they were passed by a properly constituted meeting, in accordance with the requirements for passing a special resolution, the proposed amendments merely constituted a proposal about what YAC's membership requirements should be.
6. I do not accept that argument. Section 166-1(1)(c) permits the Court to make an order in relation to a proposed resolution of an ATSI corporation. In my view, whether a proposed resolution is oppressive must necessarily be judged on the assumption that that resolution will be passed by the corporation. That conclusion is supported by the fact that the Court's powers in s 1665 include power to restrain a person from engaging in conduct. That power is broad enough to enable the Court to intervene to ensure that proposed conduct does not occur.
7. In my view, having regard to their substance, the proposed amendments were contrary to the interests of the members of YAC, or were oppressive, for two reasons.
8. First, as I have found, the proposed amendments, if passed, would have been capable of application to exclude either by the denial of membership, or by the cancellation of an existing membership persons who otherwise were regarded, in accordance with Yindjibarndi law and custom, as Yindjibarndi. Membership of YAC is significant in at least two respects. Decisions in relation to matters impacting the native title rights of the Yindjibarndi people must be made by YAC, as the trustee of those rights. Membership of YAC thus carries with it the ability to participate in those decisions. In addition, compensation for acts which are inconsistent with the Yindjibarndi's native title rights, pursuant to the Participation Agreement, is paid to YPCT and YCT,[420] and to the extent that any of these funds are distributed to individuals (such as in the form of vouchers for food or other purchases) such distributions are now made only to persons who are members of YAC.[421] (In the past, vouchers were given to Aboriginal people even if not members of YAC.)[422] To deny membership of YAC to a Yindjibarndi person, merely because that person is a member of WMYAC, would be to deny that person any meaningful ability to participate in decisions affecting the native title rights of the Yindjibarndi people, and to deny them the financial benefits of any compensation paid for the benefit of the holders of native title under the Daniel determination. That outcome, in my view, would be inconsistent with YAC's objectives (as outlined at [21] [22]).[423] In my view, conduct of that kind could not be regarded as in the best interests of YAC, and thus would constitute conduct of the kind described in s 166-1(1)(d) of the CATSI Act.
9. Similarly, to cancel the membership of a person who is recognised as a Yindjibarndi person, for the reason that that person is a member of another ATSI corporation, such as WMYAC, and in circumstances where that member's conduct has not amounted to misconduct, would be contrary to the interests of the corporation as a whole, for the same reason. Cancellation of a member's membership in those circumstances would also clearly be unfair, or burdensome, harsh and wrongful, and thus also oppressive, for the purposes of s 1661(1)(e) of the CATSI Act.
10. Secondly, it is in the interests of the members of an ATSI corporation that all members be entitled to express their views about proposed decisions of the corporation, and about whether, and the terms on which, that corporation should enter into agreements concerning compensation for acts which are inconsistent with established native title rights. Members of an ATSI corporation, and of YAC in particular, are entitled to actively participate in the decision making of the corporation for example, by exercising their rights to vote on resolutions moved in general meetings or outside them,[424] to move resolutions,[425] and to ask questions or to make comments about the management of the corporation.[426] Each member of an ATSI corporation, and each member of YAC, has one vote in a vote at a general meeting of the corporation.[427] In other words, each person's vote, and each person's viewpoint, is treated equally. If these rights are to have any substantive content, debate even robust debate and the ability to express different points of view, must be permitted, and decisions must then be made consistently with the views of a majority of the corporation (or of a special majority, if required[428]).
11. The proposed amendments in so far as they included the loyalty criterion and the disqualification ground were entirely antithetical to facilitating the expression of the different points of view held by Yindjibarndi people, and the contribution of those views to the decisions of YAC. The object of those proposed amendments, as Mr Mack acknowledged,[429] was to ensure that Yindjibarndi people with different points of view in relation to what decisions would best protect and further the native title rights of the Yindjibarndi people could be excluded from membership of YAC.
12. In my view, YAC's pursuit of the proposed amendments bears no analogy to the action taken by the council in the Gaiman case (as discussed at [355] [366]). That case involved very different facts from this one.[430] More importantly, however, the evidence in that case left the Court in no doubt that if the members of the Church of Scientology were permitted to join, and remain members of, the association, and in such numbers as to dominate the association, their views about the practice of psychiatry would inevitably be reflected in the demise of the association and its objectives. Permitting WMYAC members, who held different views in relation to whether YAC should enter into the FMG Agreement, to become, or to remain, members of YAC, could in no way undermine or threaten YAC's existence, or its ability to carry out its objectives.
13. So long as YAC remained (and remains) the PBC for the holders of native title in the Daniel determination, it is, to my mind, inconceivable, in practical and legal terms, that decisions about the native title rights of the Yindjibarndi people under the Daniel determination could be made by any corporation other than YAC, or that any agreement with FMG would see compensation being paid to WMYAC rather than YAC. In the latter case, that is because any compensation for acts inconsistent with the Yindjibarndi people's native title rights would need to be paid to YAC, as the trustee of those native title rights (or, as had already occurred in relation to the Participation Agreement, by the payment of compensation funds to a trust nominated by YAC). That much is reflected in YAC's Rule Book which requires that, as a PBC and RNTBC, YAC enter into agreements as trustee for the common law holders, and receive funds on behalf of the common law holders (including payments received as compensation or otherwise related to the native title rights and interests) and hold such payments in trust for common law holders.[431] Entry into the FMG Agreement could not be said to be inconsistent with YAC's continued existence. Furthermore, YAC's Rule Book contemplates that if decisions in relation to native title cannot be resolved by consensus, then they may be referred to a vote at a general meeting.[432]
14. Further, there was no basis on which YAC's directors could conclude that if WMYAC members were also members of YAC, they would support decisions which would necessarily be contrary to YAC's objectives. Whether or not the Yindjibarndi people should enter into an agreement with FMG for the payment of compensation, and if so, in what amount, was a question on which a variety of legitimate views might be held. The fact that WMYAC members held a different view about that course, as compared with the directors and some other members of YAC, did not mean that that viewpoint was inconsistent with YAC's objectives.
15. Accordingly, YAC's conduct in putting forward the proposed amendments was conduct which was contrary to the interests of the members of YAC as a whole, or oppressive to a member or members of YAC, and was therefore conduct of the kind described in s 1661(1)(d) or (e) of the CATSI Act.

What relief, if any, should be granted in respect of this incident of oppressive conduct?

1. I turn, then, to the defendants' alternative case, which was that no relief should be granted because the proposed amendments are no longer pursued.
2. I accept that submission. There is no ongoing conduct of YAC, arising out of the proposed amendments, which involves an ongoing oppression of YAC's members, or which constitutes conduct contrary to the interests of the members. Considered on its own, the finding of oppression in respect of this conduct does not warrant the grant of relief.
3. I will, however, consider this conduct further below, in determining whether YAC's conduct, overall, warrants the making of orders under s 166-5 of the CATSI Act.

(c) Wrongful conduct and exercise of power by YAC and its purported officers in refusing and/or failing to consider membership applications, during the period 20112016

1. This category of conduct is said to relate to a number of applications for membership which were made to YAC in the period between 2011 and 2016. However, the plaintiffs make separate allegations of oppression arising from particular decisions within the same period, namely the denial of membership to 17 persons approved for membership in 2014; the admission of 46 persons to membership of YAC in November 2015; and alleged bias in the decisions concerning membership made by the directors of YAC in June 2016. I do not propose to deal with those specific allegations under this heading. Instead, it is convenient in this part of the reasons to deal with the plaintiffs' allegations in the following categories:

(i) YAC's rejection of 52 membership applications on 25 August 2011;

(ii) YAC's failure to deal with membership applications made to it between 7 November 2011 and August 2013 (when the parties entered into the Settlement Deed);

(ii) YAC's treatment of membership applications following its entry into the Settlement Deed between August 2013 and August 2014.

(i) YAC's rejection of 52 membership applications on 25 August 2011

1. The plaintiffs' case is that on or about 17 June 2011, 52 applications for membership were submitted to YAC by Yindjibarndi persons[433] (the 52 applications). The plaintiffs say that by a letter dated 25 August 2011, which was signed by the second defendant, Mr Warrie, in his capacity as the Chairperson of YAC, on behalf of 'the directors and members' of YAC, each applicant was advised that his or her application was refused.
2. The plaintiffs say that the reasons for that refusal were the same in each case, namely that the applicant was a member or supporter of WMYAC, that WMYAC had advocated against the interests of YAC, including by negotiating the FMG Agreement, that the terms of the FMG Agreement meant that that Agreement was not in the best interests of the Yindjibarndi common law holders of native title, that the 52 applications were brought for an ulterior purpose, namely to take control of YAC at the next general meeting and secure the execution of the FMG Agreement, and that the applicant was therefore an unsuitable candidate for membership of YAC, and a person who, if already a member, would have been liable to removal on the grounds that their conduct was detrimental to the interests of YAC.[434]
3. The plaintiffs say that the persons whose membership applications had been wrongly rejected did not receive notice of the 2011 AGM for YAC, which took place on 21 March 2012, and were not able to attend the meeting.[435] Similarly, the plaintiffs say that the persons whose membership applications had been wrongly rejected were not notified of, nor given the opportunity to attend, YAC's 2012 AGM, which took place on 27 March 2013.[436]
4. The plaintiffs contend that in rejecting the 52 applications, the directors acted contrary to s 265-5 of the CATSI Act, in that they failed to exercise their powers and discharge their duties in relation to membership applications in good faith in the best interests of the corporation, and for a proper purpose. The plaintiffs also say that in refusing the 52 applications, the directors failed to act in good faith and with regard to the objects of YAC, and that their conduct was therefore contrary to the interests of the members of YAC as a whole, and that that conduct was therefore within s 1661(1)(d) of the CATSI Act.[437]
5. The defendants admit that YAC refused the 52 applications, although they say that that refusal occurred in or about July 2011.[438]
6. The defendants' case is that the directors did not abuse their power in refusing the 52 applications because, in the circumstances, they exercised their discretion by reference to the objects of YAC. The defendants say that those circumstances were:[439]

(a) the directors were satisfied that each applicant was a member of WMYAC;

(b) WMYAC and FMG negotiated the WMYAC FMG agreement concerning FMG's then Solomon Hub project;

(c) YAC and the directors were unaware of that negotiation or agreement until they received a copy of WMYAC FMG agreement from the Hon. Vince Catania MLA;

(d) the WMYAC FMG agreement:

(i) related to the area over which Yindjibarndi people held native title rights and interests and over which they claimed native title;

(ii) necessarily named YAC and the Applicant for the Yindjibarndi #1 claim as parties to it; and

(iii) provided for compensation under the agreement to be paid to WMYAC,

(e) following a purported meeting of the Yindjibarndi #1 claim group convened by the Plaintiffs on 16.03.11, the Plaintiffs signed the WMYAC FMG agreement as members of the Applicant and WMYAC's lawyer provided copies of the agreement to YAC to sign and to arrange for the remaining members of the Applicant to sign it;

(f) as a prescribed body corporate YAC has functions under the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) (PBC regulations) that include: managing the native title rights and interests of the Yindjibarndi people; holding money in trust for the Yindjibarndi people; and consulting with Yindjibarndi people in accordance with the regulations;

(g) as a prescribed body corporate YAC has obligations under the PBC regulations to consult with and obtain the consent of Yindjibarndi people before entering into an agreement like the WMYAC FMG agreement;

(h) by negotiating the WMYAC FMG agreement with FMG, WMYAC sought to carry out YAC's functions under the PBC regulations; and

(i) the actions of the Plaintiffs in convening a purported meeting of the Yindjibarndi #1 claim group that purportedly decided to enter into the WMYAC FMG agreement; signing that agreement and then having WMYAC's lawyers provide the partially signed copies to YAC for signing (and to arrange for the remaining members of the Applicant to sign it) meant that YAC could not perform any of its obligations under the PBC regulations in relation to it.

1. The defendants deny that the directors' exercise of discretion in refusing the 52 applications in those circumstances constituted a failure to exercise their powers in good faith in the best interests of the corporation for a proper purpose, or oppressive conduct of the kind described in s 166-1(1) of the CATSI Act.[440]
2. The defendants also say that 50 of the 52 applications were resubmitted before 31 October 2013[441] and that these were determined in the course of the membership process which occurred pursuant to the Settlement Deed. They also say that to the extent that a decision on any of those resubmitted applications was deferred, those applications were determined by the directors of YAC at their meeting on 29 June 2016. Accordingly, the defendants' alternative case is that the Court should not grant relief under s 1665 of the CATSI Act or otherwise in respect of the denial of the 52 applications.[442]
3. Before setting out my findings in respect of the 52 applications, it is appropriate to refer to some other events which concerned disputes over the membership of YAC, and which took place at about this point in the chronology of the disputes between YAC and WMYAC. These events concerned the involvement of ORIC in dealing with complaints about the conduct of YAC, including in relation to YAC's dealing with membership disputes.
4. The evidence established that, at various times, the Registrar and ORIC had become involved in investigating the affairs of YAC. The Registrar and ORIC's involvement is outlined in more detail from [1054] in relation to the plaintiffs' allegations which concern the financial management of YAC. However, for present purposes, it is appropriate to briefly mention the Registrar and ORIC's inquiries into YAC's affairs in relation to membership disputes.
5. On 8 September 2010, a delegate of the Registrar caused authorised officers to examine the books of YAC and to report on the results of that examination.[443] The report prepared as a result of that examination identified a number of breaches of the requirements of the CATSI Act. Most of those pertained to the management of YAC's finances. However, the report also identified a breach concerning membership applications, in that applications for membership were being received and accepted prior to an AGM held on the same day, and those new members were permitted to then participate in the AGM.[444] The authors of the report recommended that the Registrar issue a compliance notice in accordance with s 439-20(1) of the CATSI Act to require the relevant breaches to be identified and, amongst other things, that governance training be undertaken.
6. On 8 March 2011, the Registrar issued the first compliance notice under s 43920 of the CATSI Act to YAC.[445] Pursuant to the first compliance notice, the Registrar required that the directors of YAC take a variety of specified actions by specified dates, including the following actions which pertained to membership applications:[446]
   1. In the general business at the directors meeting ... discuss and put in place a course of action to resolve the following matters and ensure that:

3.1 all applications for membership are considered by the directors at a director's meeting;

3.2 the names and details of persons who apply for membership after a notice has been issued for an AGM or a general meeting are not entered on the register of members until after the applicable AGM or general meeting has been held;

1. The first compliance notice also required that the directors of YAC forward to the Registrar copies of all minutes of directors' meetings and general meetings held by YAC after the date of the first compliance notice until such a time as the Registrar was to notify YAC that he was satisfied that it was no longer necessary for him to monitor YAC.[447]
2. On 25 October 2011, Mr Armstrong, a delegate of the Registrar, advised YAC that after reviewing YAC's responses to the first compliance notice, it was satisfied that the directors had met all the requirements of the first compliance notice and, as such, the Registrar's period of monitoring YAC had officially concluded.[448]
3. On 3 November 2011, the solicitors for WMYAC wrote to ORIC to complain about ongoing membership disputes in relation to YAC and governance issues in relation to YAC.[449] The letter alleged that a significant number of WMYAC members had had their names removed from the membership records of YAC in 2010 without their prior knowledge or approval, that it was anticipated that those persons would be barred from entering the 2011 AGM, and that their applications to re-join YAC had been ignored.[450] In view of those concerns, WMYAC's solicitors requested that ORIC send an officer to attend the 2011 YAC AGM.[451] ORIC declined that request, on the basis that it did not attend ATSI corporation meetings without a request to do so by the directors or members of the corporation in question.[452]

1. There was no dispute, and I find, that on 17 June 2011, Corser & Corser (who, it appears, were then the solicitors for WMYAC) forwarded to YAC 52 applications for membership of YAC.[453]
2. The defendants, through their counsel, admitted that YAC's directors refused all 52 applications in or around July 2011, and that YAC sent an identical letter to each of the applicants advising of the refusal of the application and the reasons for it.[454]
3. There was also no dispute, and I find, that by letter dated 25 August 2011, the second defendant, on behalf of the directors and members of YAC, wrote to each applicant to advise that their application had been rejected by the YAC board, and the reasons for that decision.[455] In summary, those reasons were as follows:[456]
   • The applicant was a member and/or supporter of WMYAC;
   • WMYAC had publicly and materially advocated against the interests of YAC, including by instituting court proceedings;
   • That demonstrated that the applicant was an unsuitable candidate and a person who, if already a YAC member, would have been liable to removal for conduct detrimental to the interests of YAC, under rule 3.7 of the Rule Book;
   • The board also took into account the following matters:
     • WMYAC members had negotiated the FMG Agreement with FMG;
     • WMYAC was established for the apparent purpose of receiving benefits under the FMG Agreement;
     • The FMG Agreement directly and seriously affected native title rights in the Daniel Determination Area, which were held in trust by YAC for the benefit of the Yindjibarndi common law holders;
     • Notwithstanding that the FMG Agreement required execution by YAC, WMYAC members and supporters, when negotiating the agreement with FMG, neither informed YAC of, nor invited YAC to attend, those negotiations, and thus prevented YAC from carrying out its obligations under the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) (PBC Regulations);
     • The FMG Agreement, if executed, would permanently deprive YAC of the financial benefits set out in the Agreement, in consideration for a promise by YAC to give perpetual consent to the grant of any mining tenure desired by FMG (or any mining company with which it may have an agreement) in the Daniel Determination Area at any time in the future. All consideration under the FMG Agreement would go to WMYAC, which was a complete stranger to that Agreement, and an entity which owed no fiduciary obligations to the common law holders of the native title rights affected by the Agreement;
     • The FMG Agreement did not permit the Yindjibarndi common law holders to reconsider the appropriateness of the compensation package under the Agreement, once the nature of FMG's project in the Daniel Determination Area became clear, and prohibited any future compensation claim that might be thought fair and reasonable by any current and future generations of the Yindjibarndi common law holders of native title rights;
     • FMG's project in the Daniel Determination Area would have a devastating impact on sacred sites and that impact;
     • In view of the long term adverse consequences of FMG's project, and the FMG Agreement, the YAC board regarded the applicant's support for and/or membership of WMYAC as demonstrating that the applicant did not act to protect, preserve, maintain or advance the traditions, laws, culture and customs of the common law holders and their economic developments, interests and social progress;
   • The board also concluded that each application, along with the other 51 applications, was made for an ulterior purpose, namely to take control of YAC at the next general meeting, and to secure the execution of the FMG Agreement, which was detrimental to the interests of YAC, and to those of the common law holders, in whose best interests YAC was required to act.
4. The evidence of Mr Mack, and of Mr Woodley, confirmed that YAC's directors and its CEO believed that the FMG Agreement was not in the best interests of the Yindjibarndi people, and that the 52 applications were refused because they were viewed as part of an attempt by WMYAC to obtain control of YAC, with a view to securing entry into the FMG Agreement.
5. It was put to Mr Mack in cross examination that at the heart of the dispute were differing views as to whether the Yindjibarndi people should enter into an agreement with FMG immediately, or whether the Yindjibarndi people should defer resolving the amount of compensation for FMG's activities until after the Yindjibarndi #1 claim was resolved. Counsel described these differing views as being, in summary, a question of whether to get 'money now rather than later'.[457] Initially, Mr Mack denied that when the directors considered the 52 applications that they took the view that 'any Yindjibarndi man or woman who wanted to be a member of YAC could only be a member if they agreed to support the claim for money later, not money now'.[458]
6. Mr Mack later acknowledged, however, that the concern of the directors was that the admission of new members to YAC might constitute sufficient numbers to obtain control of the board of directors:[459]

You were worried that they will have the support to be voted onto the board?(indistinct) by Wirlumurra they they support Wirlumurra.

...

Okay. You had 126 members. Add 52, you had 178. You would need 120something people vote, which means you need 50 of the members of YAC already to side with these new 52 60 of them. That's what you were worried about, was it, as a director: that your own members would side with these Wirlumurra people for money now rather than money later?Because of the deal we was going to make already been agreed. So they could control

You're agreeing with me that's what you were worried about?They could control YAC.

1. Later in his evidence, Mr Mack acknowledged that the rejection of membership applications by WMYAC members during 2011 and 2012, was due to their support for the FMG Agreement:[460]

You know, don't you, that back in the ... period between 2011 and 2012, anyone who supported Wirlumurra was rejected for membership because they supported Wirlumurra?Because of that agreement.

Because they supported Wirlumurra, they were rejected?I mean, the agreement shows that we have a document says the agreement shows ... and if they this agreement in 2011 shows that if they want to take over YAC, an agreement to take over agreement there says that

They want to have an agreement with FMG?They signed it in. FMG signed it in, Wirlumurra gets all the benefits.

Yes?And the native title rights were left

And you thought that was a really bad idea for YAC?It is a bad idea. It's all it's all

I understand that?It's all for yes.

The question is, if someone applied, who was a member of Wirlumurra at that stage, did they get rejected because they supported that deal?At that time, yes, because of the (indistinct) before.

1. Similarly, Mr Woodley's evidence was that he believed that, at the same time as the plaintiffs commenced the present action, 'Wirlumurra started trying to take over YAC and I believe they wanted to do that so YAC would sign the Agreement'[461] and that he still believed that 'with these applications Wirlumurra was trying to gain control of YAC by getting as many people as they could to become members'.[462]
2. Furthermore, the evidence in relation to the refusal of the 52 applications must be viewed in light of the evidence which I have set out at length above (at [140] and following), in so far as it concerned events prior to August 2011, which was the basis for the beliefs held by YAC's directors that FMG was behind WMYAC and its attempts to gain control of YAC. Viewed in light of that evidence, and having regard to the reasons set out in the second defendant's letter of 25 August 2011, and to the evidence of Mr Mack and Mr Woodley, in my view, the primary reason why the 52 applications were rejected was to ensure that members and supporters of WMYAC did not 'take control' of YAC, in the sense that, by obtaining membership, they might secure enough votes to ensure the appointment of directors sympathetic to the FMG Agreement, or alternatively to secure enough votes to pass a resolution at a general meeting of YAC. The reason why the directors were concerned to ensure that that prospect did not eventuate was because they expected that if WMYAC members and supporters gained control of YAC, they would take action to ensure that YAC entered into the FMG Agreement.
3. The directors were opposed to YAC's entry into the FMG Agreement because their view was that that would not be in the best interests of the Yindjibarndi people or of YAC. That was because the FMG Agreement fixed the compensation payable for any future interference by FMG with the native title rights of the Yindjibarndi people in the Yindjibarndi #1 claim area (bearing in mind that at that stage, the native title claims by the Applicant in the Yindjibarndi #1 claim had not been resolved, and a finding of exclusive native title rights would place the common law holders in a stronger position in any claim for compensation), and because compensation under the FMG Agreement was to be paid to WMYAC and not to YAC. The directors were therefore of the view that YAC's entry into the FMG Agreement would be detrimental to the interests of YAC itself, and to those of the common law holders of native title.
4. On the basis of that view, the directors concluded that those who supported the FMG Agreement did not share the objectives of YAC, namely to protect, preserve and advance the traditions, laws, languages, culture and customs of the common law holders, and to maintain, protect, promote and support the culture, native title, traditions and customs, economic development, interests and social progress of the common law holders.
5. The evidence established that that was a view not universally held by the members of YAC. As I have noted above, dissatisfaction with YAC's refusal to negotiate the FMG Agreement was one of the reasons that the plaintiffs, and other members of YAC, established WMYAC. It is apparent from the evidence of members of YAC including Aileen Sandy, John Sandy, Ken Sandy, Vincent Adams and Rodney Adams (to which I referred at [154] [161]) that they, as members of YAC, genuinely believed that entry into the FMG Agreement (or a similar agreement with FMG) would be in the best interests of the Yindjibarndi people.
6. Furthermore, it was known to the directors of YAC that there was a significant division of opinion within the membership of YAC about the merits of the FMG Agreement. Indeed, in so far as the directors of YAC were concerned that admitting the 52 applicants to membership would enable WMYAC members and supporters to take control of YAC, the inference can be drawn that the directors were aware, or assumed, that there were a not insignificant number of YAC members who favoured entry into the FMG Agreement. As at August 2011, the YAC Rule Book provided that directors would be appointed by resolution passed at a general meeting.[463] Further, the Rule Book contemplated that if the matters of business at a general meeting could not be resolved by consensus, then any such matter could be put to a poll at a general meeting. To pass a resolution at a poll required a majority of three quarters of the votes cast.[464] As at July 2011, YAC's Register of Members, as listed on ORIC website, named 144 individuals as members of YAC, although there was other evidence to suggest that there were, in fact, 126 members at that time.[465] (I will assume that the latter is correct.) If all YAC members attended, or appointed a proxy, then the passage of a resolution at a YAC general meeting by a three quarters majority would require as many as 95 votes. If 52 new members were admitted, and all attended and voted, 147 votes would be required to achieve a three quarters majority vote in favour of a resolution. The directors' concern that admission of the 52 applicants to membership of YAC would enable WMYAC members and supports to gain control of YAC presupposed that a not insignificant proportion of YAC's existing membership were understood to support entry into the FMG Agreement.
7. In addition, there was no evidence to suggest that each membership application was individually considered on its merits. In all of the circumstances, I am satisfied that the 52 applications were simply considered as a bundle.
8. Furthermore, while there was no evidence in relation to whether the 52 applicants were otherwise qualified for membership of YAC, the fact that the directors relied on the grounds set out above, rather than on noncompliance with the membership criteria in rule 3.1 of the Rule Book, permits the inference that the 52 applicants were persons who otherwise met the criteria for membership of YAC. This was a case, therefore, of the directors exercising their discretion to refuse membership of YAC to persons otherwise qualified for it.

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or s 166-1(1)(e) of the CATSI Act?

1. Counsel for the defendants acknowledged that the critical part of the second defendant's letter to each of the 52 applicants for membership was the statement that the directors believed that the 52 applications were made for an ulterior purpose, namely to take control of YAC and secure the execution of the FMG Agreement, which would be detrimental to the interests of YAC and of the common law holders.[466] They submitted that the belief held by YAC's directors was reasonable, having regard to the terms of the FMG Agreement.[467] Consequently, they submitted that the directors' refusal of the 52 applications did not constitute either a failure to exercise their powers in good faith in the best interests of the corporation for a proper purpose, nor was it conduct caught by s 1661 of the CATSI Act.[468] I am unable to accept those submissions.
2. In my view, the evidence supports the conclusion that the decision by the directors of YAC to reject the 52 applications was conduct which was contrary to s 265-5 of the CATSI Act, in that the directors' power to deny membership was not exercised for a proper purpose. In addition, the decision to refuse the 52 applications was conduct of the kind described in s 166-1(1)(d) of the CATSI Act, in that it was conduct which was contrary to the interests of the members of YAC as a whole. I have reached those conclusions for the following reasons.
3. First, the directors dealt with the 52 applications as a bundle. They did not consider each application on its individual merits. That is a factor which lends support to the conclusion that the directors exercised their power for an improper purpose, or in a manner which was contrary to the interests of the members as a whole.[469]
4. Secondly, the decision to reject the 52 applications was made to ensure that those persons who were members or supporters of WMYAC, and who supported entry into the FMG Agreement, were denied any chance of obtaining control of YAC's board of directors, or of the voting at a general meeting of YAC. There is some support for the view that if a corporation is subject to an attempted hostile takeover by persons whose objects are inimical to the best interests of the corporation, or to its continued operation, then the directors may be justified in taking steps to refuse applications for membership from those who would seek to take that course, or of cancelling the memberships of those who support the attempted takeover, without being held to have acted for an improper purpose, or in a way which is not in the best interests of the corporation. The decision in Gaiman v National Association for Mental Health,[470] upon which the defendants relied, is an example of such a case.
5. In Gaiman the council of the association had, in effect, engaged in the block expulsion of over 300 members, on the basis that they were known or reasonably suspected of being Scientologists in circumstances where, in the preceding five years, the Church of Scientology had been involved in a hostile dispute with the association about the use of psychiatric medicine to treat mental illness. The terminations of membership had occurred in circumstances where there had been an unusual and considerable increase in the rate of membership applications to the association (all of which had been accepted), where many of the applicants appeared to have a connection with Scientology. The association then received a bundle of nominations for election to the council of the association, from members who were Scientologists. The election for those positions was to take place at a forthcoming AGM of the association, at which each member would have one vote and voting by proxy was not allowed.
6. The evidence established that the reason for the decision to terminate the membership of those members understood to be connected with Scientology was 'the threat that Scientology posed to the association and all that it stood for',[471] the loss of moral and active support for the association, the loss of revenue and the association's responsibility to those in its charge. Justice Megarry was persuaded that this case went far beyond the situation where members of an association may disagree about matters concerning the association while still supporting the association itself. His Honour found that the evidence established that 'Scientologists have long been attacking the association in a variety of ways ... and much of [the language of those attacks] cannot be described as moderate and reasoned argument designed to convert those who hold opposing views'.[472] Justice Megarry held that the association's power, under its articles, to deprive a member of membership, had been exercised by its council of management in good faith for the purpose for which it was conferred, namely in the best interests of the association and its members as a whole.[473]
7. In my view, this case is not analogous to Gaiman. Unlike Gaiman, the evidence in this case does not establish that admission of the 52 applicants for membership, on the assumption that they would take control of YAC, and secure its entry into the FMG Agreement, was a course which was utterly inimical[474] to the best interests of the Yindjibarndi common law holders, or of YAC, or which was contrary to YAC's objects. Admission of those persons to membership of YAC, even if that resulted in YAC entering into the FMG Agreement, or an agreement in similar terms, would not, of itself, undermine or threaten the continued existence of YAC.[475] So long as YAC was the Applicant in the Yindjibarndi #1 claim, and the PBC in respect of the Daniel determination, then YAC would necessarily continue to exist.
8. Thirdly, in my view, the directors' belief that entry into the FMG Agreement would be detrimental to the interests of YAC and to the interests of the common law holders was not one which could be said to have been reasonable in all of the circumstances. There is no doubt that the directors genuinely believed that entry into the FMG Agreement would not be in the best interests of YAC or the Yindjibarndi common law holders. However, in my view, it was not reasonable for the directors of YAC to determine, solely by reference to their own personal views, whether entry into the FMG Agreement was in the best interests of YAC and the Yindjibarndi common law holders. That is especially so in circumstances where there were differences of view within YAC's membership on the question as to whether YAC should enter into the FMG Agreement, and where (as I have explained) it may be inferred that the directors were aware, or assumed, that a not insignificant number of the existing members of YAC supported entry into the FMG Agreement.
9. In my view, this case is more analogous to Millar v Houghton Table Tennis and Sports Club Inc.[476] In that case, five life members of a table tennis club complained about the manner in which the club's management committee, at one particular meeting in March 2002, dealt with 201 membership applications which the club had received. The evidence was that at about that time, the club was proposing to sell a property, namely a hall, and to move its activities to a sports complex stadium nearby. At the meeting, the management committee refused all 201 membership applications which had been submitted. Justice Besanko found that the management committee rejected the membership applications because it considered that if those applications for membership were approved, a substantial number of the new members were likely to utilise their voting rights at a proposed special general meeting in April 2002 to prevent the club from selling the hall.[477]
10. One of the grounds on which the members challenged the management committee's decision was that it was unfairly prejudicial to them or contrary to the interests of the members of the club as a whole.[478] His Honour rejected the plaintiffs' contention that the sale of the hall would be contrary to the interests of the members as a whole. Justice Besanko concluded that there was nothing in the association's constitution to suggest that the retention of the hall was critical to the continued existence of the club.[479] His Honour found that the proposal to sell the hall was not one motivated by a purpose foreign to the association's operations, affairs and organisation, nor was it one that no reasonable person could have reached.[480] His Honour pointed out that it was not appropriate for the Court to make a judgment about the merits of the underlying dispute:[481]

Members might no doubt hold differing views as to the merits or otherwise of selling the hall property. I have no doubt that there are views on either side, and that they are held in good faith and with a good deal of passion. However, ... the Act does not give the Court the power to adjudicate between the two views. That is a decision for the members in general meeting. Were it otherwise, it would mean in this case, for example, the Court would become embroiled in issues which in all likelihood go to the very survival of the Club.

1. This case also bears some parallels with Australian Securities Commission v Multiple Sclerosis Society of Tasmania.[482] In that case, a resolution made by some, but not all, of the elected members of the council of the MS Society, at a meeting held at short notice to cancel the membership of a person who had nominated for election as a member of the council, was held to be oppressive. The council's stated reason for that decision was that the member's continued membership would put him in a position of conflict, by virtue of litigation which his wife had indicated she intended to commence against the Society. Justice Zeeman held that the board was not authorised to cancel the member's membership for that reason, or for the real reason, which he concluded was uppermost in the minds of at least the majority of the directors, namely to prevent the member from becoming a director.
2. His Honour observed that the power to elect members to be directors was reposed by the articles of that company in the hands of the members acting in an AGM and it was for them to determine who ought to be elected to govern the affairs of that company. Justice Zeeman concluded that there was no reason for the board to take away the right of the AGM to elect the member as a director, if that is what the meeting determined. It was not for the board to decide that it was not in the best interests of that company that the member be a director. His Honour concluded that[483]

To take away that right from the members in the circumstances was a serious abuse of power. This was not a case where there had been an organised attempt by a group having interests utterly inimical to the objects of the [company] attempting a takeover, as was the case in Gaiman v National Association for Mental Health ... . It was a case of a member who had been attempting to advance the interests of the sufferers of multiple sclerosis ... by endeavouring to have the [company] adopt policies which he saw as appropriate. ... Nevertheless, the board considered him to be a troublemaker and determined to rid themselves of him. ... the members were entitled to judge whether [he] ought to be a director. In preventing that occurring the directors were not acting in the best interests of the [company].

1. I emphasise that it is neither necessary nor appropriate in this case for this Court to express any view about whether YAC, on behalf of the Yindjibarndi common law holders, should enter into an ILUA with any party in respect of the use of land over which they have been found to hold native title rights. Nor is it for this Court to express any view as to whether any terms of such an agreement would, or would not, be in the best interests of the Yindjibarndi common law holders, or of YAC itself. There is no doubt that those are questions over which reasonable minds may differ (as the evidence established here). The question is simply whether the directors were entitled to proceed solely on the basis of their own personal views as to what was in the best interests of YAC and the common law holders. They were not.
2. Fourthly, for the same reasons, the decision to reject the 52 applications, in all the circumstances, cannot be said to have been made in the interests of the members as a whole. In so far as the directors contended that 52 applicants did not share the objects of YAC, that view was based on the directors' own view of whether the FMG Agreement was consistent with those objects, and disregarded the contrary views of other members of YAC. In those circumstances, the proper course would have been to admit the 52 applicants (on the basis that they otherwise met the criteria for membership of YAC) and thereby enable those persons to participate in decision making by the members of YAC as a whole, and by that means, to determine what was in the best interests of YAC.
3. Fifthly, any decision by YAC to enter into an ILUA in respect of acts in the Yindjibarndi #1 claim area would arguably constitute a 'native title decision' (as defined in YAC's Rule Book), namely a decision to 'do, or agree to do, any other act that would affect native title rights and interests'.[484] That being the case, before YAC could enter into such an ILUA, its directors would need to comply with the requirements of YAC's Rule Book to consult with the common law holders and obtain their consent to enter into the ILUA. If the common law holders did not give their consent, the directors would be obliged to reject the proposed native title decision.[485] Even if entry into the FMG Agreement did not constitute a 'native title decision' for the purposes of YAC's Rule Book, it would undoubtedly relate to the native title rights and interests of the common law holders, in which case the directors would, at the least, be obliged to consult with the common law holders.[486] Even if the 52 applicants were admitted to membership of YAC, and 'took control' of YAC by electing directors sympathetic to entry into the FMG Agreement, there is nothing in the evidence to support the inference that those persons would ignore the obligations on YAC, and its directors, to consult with the common law holders as to what they considered to be in their best interests.
4. Sixthly, in my view, for the reasons outlined above at [311], it is not in the best interests of the members of an ATSI corporation, nor is it consistent with the objects of YAC, for the directors of the corporation to use their powers to admit members for the purpose of stifling debate, and to silence views which differ from their own. In my view, that was the effect of the decision to refuse the 52 applications in this case.
5. Accordingly, in my view, the directors' decision to reject the 52 applications constituted the exercise of their power for an improper purpose, contrary to s 265-5 of the CATSI Act, and a decision which was contrary to the interests of the members of YAC as a whole, contrary to s 1661(1)(d) of the CATSI Act.

What relief, if any should be granted in respect of this incident of oppressive conduct?

1. The defendants submitted, in the alternative, that if the rejection of the 52 applications was an abuse of power and conduct caught by s 1661 of the CATSI Act, then the Court should not make an order in its discretion under s 166-5, or on any other basis. That submission was advanced on the basis that the 52 applicants re-submitted their applications and these were determined as part of the membership process in the Settlement Deed. The defendants submitted that to the extent that any of those re-submitted applications were deferred in that process, they were determined by the directors at their meeting on 29 June 2016.[487]
2. I accept that it is neither necessary nor appropriate to grant any relief directed to the directors' decision to reject the 52 membership applications, because that refusal was remedied by the directors' decision to admit members in the process under the Settlement Deed, or alternatively because that decision was overtaken by the decision of the directors on 29 June 2016, which is under separate challenge in these proceedings.
3. I will, however, consider the conduct of the directors further below, in determining whether YAC's conduct, overall, warrants the making of orders under s 166-5 of the CATSI Act.

(ii) YAC's failure to deal with membership applications made to it between 7 November 2011 and August 2013 (when the parties entered into the Settlement Deed)

1. The plaintiffs contended that YAC failed to deal with a large number of applications for membership which were made between November 2011 and August 2013. They contended that 36 applications for membership were forwarded to YAC on 7 November 2011, and by October 2013, there were nearly 200 unresolved membership applications. The plaintiffs contended that many of these applications were not determined until late 2013 or early 2014, pursuant to the process established under the Settlement Deed entered into in August 2013, and that others were not determined until June 2016.[488] The plaintiffs did not expressly advance any contention that the delay in determining these membership applications constituted oppressive conduct under s 166-1(1) of the CATSI Act. However, the plaintiffs did plead that persons whose membership applications had not been determined, or had been rejected, by the time of YAC's AGM (that is, the 2012 AGM, which was held on 27 March 2013) were not notified of the AGM, nor were they given the opportunity to attend and participate as members.[489]
2. The defendants contended that between November 2011 and May 2012, YAC received 122 membership applications.[490] They also contended that between 9 May 2012 and 31 October 2013, YAC received 198 membership applications from WMYAC members.[491]
3. The defendants' case was that at the meeting of the directors of YAC held on 9 May 2012, the directors dealt with 122 membership applications (which were all of the membership applications outstanding at that point in time).[492] The defendants contended that 11 applications were granted, 37 were decided to be unnecessary to determine because the applicant was already a member of YAC (including 17 persons whose membership had been cancelled in December 2010, but subsequently reinstated), and the remaining 75 applicants were advised that the directors required further information to determine their application, and they were invited to attend a meeting with the board.[493] (The defendants also contended that YAC determined the further 198 applications (along with others received after 31 October 2013) in the course of the membership process agreed under the Settlement Deed.)
4. The defendants denied that the determination of any of these applications was oppressive within the meaning of s 166-1(1) of the CATSI Act, or otherwise unlawful.[494]

1. Mr Gallagher (a consultant engaged by Corser & Corser, the plaintiffs' then solicitors) deposed that he attended a meeting of Yindjibarndi people in Roebourne on 6 November 2011, and collected application forms from 36 Yindjibarndi people who wanted to become members of YAC. He posted these application forms to YAC the following day.[495] A copy of each of the application forms was annexed to Mr Gallagher's affidavit. I note that a number of the applicants stated in the form that their address was care of WMYAC.
2. There was no evidence to suggest that any of those applications were considered by YAC at any time prior to 9 May 2012. I infer that those applications were not dealt with until 9 May 2012.
3. A meeting of the directors of YAC was held on 9 May 2012.[496] Agenda item 7 concerned a review of membership applications made since 30 November 2011, by 130 persons whose names are listed in the minutes. (In fact some of the names are duplicated, and the defendants say that there were, in fact, 122 applications considered at this meeting.[497]) The names of those listed include persons whose application forms were submitted to YAC by Mr Gallagher. The minutes record the following consideration of this agenda item:[498]

Because of the legal cases being brought by the [WMYAC] the Yindjibarndi Directors decided to review the YAC membership applications made to YAC which have been considered since the YAC Directors meeting held on 30/11/11.

These membership applications now appear to be the subject of the legal challenge purportedly being brought by [the plaintiffs], however, the Yindjibarndi Directors agree that it is FMG which is behind these legal challenges to YAC, who are simply utilising the two old ladies and [WMYAC] as a front therefore the group considered each of the membership applications within this legal context guided by the legal advice provided by Mr George Irving YAC InHouse Legal Counsel. There was a lot of discussion around each of the applications, and each applicant is to receive a letter in response to their application so they can understand their standing in relation to their YAC membership application.

1. However, the minutes do not record the outcome of the directors' consideration of those membership applications.[499] As I have noted, the defendants contended that 11 applications were accepted, 37 applications were unnecessarily made because the applicant was already a member of YAC (including those whose memberships had been cancelled in December 2010 and then reinstated), and 75 applications about whom the directors required further information to make a decision, and who were requested to attend a meeting with the board. There was, however, no direct evidence as to the outcome of each of those latter applications. What was in evidence was a copy of a sample letter from each of these groups of applicants.[500] It is not necessary to make a finding as to how many, and whose, applications were accepted or deferred for further consideration. It suffices to make a finding that some applications were accepted, others were found to be unnecessary, so that no decision was required, and the remainder were deferred, pending a meeting between the applicant and the board.
2. The defendants' case is that none of the persons whose applications were deferred contacted YAC to arrange a meeting. There was no evidence which suggested any such contact between any of those applicants and the board of directors. However, the defendants' case was that those applications were resubmitted to YAC before 31 October 2013, and then were considered as part of the membership process agreed to under the Settlement Deed.
3. There was no other evidence to suggest that membership applications were dealt with by YAC's board of directors between May 2012 and October 2013, when the membership process agreed under the Settlement Deed got underway.

Did YAC's conduct constitute oppressive conduct of the kind described in s 1661(1) of the CATSI Act?

1. As I have already observed, it is not clear whether the plaintiffs contend that the manner in which YAC dealt with these membership applications (or at least those which were deferred) constituted oppressive conduct of the kind described in s 1661(1) of the CATSI Act. The defendants clearly apprehended that the plaintiffs alleged oppression, and apprehended that that may have been because of the delay in determining the applications. In my view, in the absence of a particularised allegation of oppression by the plaintiffs, and in the absence of any evidence as to the surrounding circumstances which would be necessary to determine whether any oppression had occurred, it is neither necessary nor possible to make any determination that YAC's conduct in dealing with (or failing to deal with) membership applications sent to it between 7 November 2011 and August 2013 constituted oppressive conduct on its part.
2. In view of that conclusion, no question of relief arises.

(iii) YAC's treatment of membership applications following its entry into the Settlement Deed between August 2013 and August 2014

1. The parties reached an agreement to settle the present action in August 2013, and on 21 August 2013, entered into the Settlement Deed. Settlement of the action was contingent on certain events taking place before YAC's AGM for 2013. Those events included the resolution of the dispute over membership pursuant to a process established under the Settlement Deed. I discuss the terms of the Settlement Deed below. The plaintiffs' case was that the defendants could not demonstrate that the events on which settlement was contingent had occurred, and that the Settlement Deed therefore did not effect any settlement.[501] By the time of the trial, the question whether the proceedings were settled, by virtue of performance of the parties' obligations in the Settlement Deed was both legally and practically moot.
2. The plaintiffs pleaded that by October 2013, there were nearly 200 unresolved membership applications, and by May 2014, there were still about 130 unresolved applications.[502] That period represents the period of time during which membership applications were dealt with pursuant to the membership process under the Settlement Deed. The plaintiffs did not expressly contend that the manner in which YAC dealt with the membership applications, pursuant to the membership process under the Settlement Deed, the delay in resolving membership applications while that process was undertaken, or the fact that that process did not finally resolve the membership dispute, constituted oppressive conduct on the part of YAC, within the meaning of s 1661(1) of the CATSI Act.
3. Perhaps as a matter of caution, the defendants denied that the determination of the membership applications in the course of the membership process under the Settlement Deed constituted oppressive conduct for the purposes of s 166-1(1) of the CATSI Act, or was otherwise unlawful.[503]
4. The defendants' case was that under the Settlement Deed, the parties reached an agreement on the process for resolving all outstanding membership applications. They also pleaded that on or about 31 July 2014, the parties entered into a further agreement concerning outstanding membership applications. They pleaded that consideration of membership applications pursuant to that agreed process commenced in October 2013 and continued until August 2014.[504]
5. The defendants' case was that at the commencement of the membership process, there were 198 outstanding membership applications, and that approximately 122 further applications were received by YAC during the membership process. The defendants say that most of those 320 membership applications were provided to YAC by Integra Legal, acting on behalf of WMYAC.[505]
6. The defendants contended that the results of the membership process under the Settlement Deed were that approximately 320 membership applications were considered; YAC accepted 233 membership applications, refused 47 membership application and deferred a decision on a further 40 membership applications, pending further consideration after the Federal Court delivered its decision in TJ v State of Western Australia.[506]
7. The defendants contended that 221 persons, whose applications for membership were accepted, had been added to the Register of Members prior it notified members of the AGM for 2013.[507] The defendants also contended that the remaining 12 persons whose applications were accepted were added to the membership register after it notified members of the 2013 AGM, but before that AGM took place.[508]
8. The defendants also contended that there was considerable overlap in those membership applications, and earlier membership applications submitted to YAC, but not previously determined. In particular, the defendants contended that 50 of the 52 applications which were refused in or around July 2011 were resubmitted before 31 October 2013, and the 75 applications which were deferred on 9 May 2012, pending further consideration, were also re-submitted before 31 October 2013.[509]

1. Counsel for the defendants submitted that while the parties had adduced a considerable volume of evidence about the membership process under the Settlement Deed, most of that was relevant only as background, and only a small part of that evidence was directly relevant to the plaintiffs' specific contentions on membership issues.[510] That submission is undoubtedly correct. It is appropriate, however, to set out my findings largely by way of overview of what occurred during that membership process, to the extent that YAC's conduct might be said to be relevant to the Court's overall exercise of discretion to grant relief for oppressive conduct relating to the membership dispute.
2. The Settlement Deed was entered into on 21 August 2013.[511] The parties' agreement was not confined to the means by which their membership dispute might be resolved, but extended to all aspects of the dispute between them. (Other aspects of the Settlement Deed are considered later in these reasons.)
3. The Settlement Deed provided that the board of YAC would establish a subcommittee of Yindjibarndi Elders (Elders' Subcommittee) to review and consider all membership applications which, to that point, had been received by YAC, but had not yet been processed, and any applications received after the date of execution of the Settlement Deed and prior to YAC giving notice of its next AGM. The Deed contemplated that if the Elders' Subcommittee was satisfied that an applicant was a person eligible for membership in accordance with the provisions of the YAC Rule Book, the Sub-committee would make a recommendation to the board that that applicant be eligible for membership.[512]
4. The Settlement Deed provided that, in the event that the Elders' Subcommittee could not reach agreement in respect of whether an applicant was eligible for membership in accordance with the YAC Rule Book, any such application would be referred to Mr Mark Chambers or Mr Robin Stevens (both of whom were anthropologists) to determine whether that applicant was a Yindjibarndi person who holds in common the body of traditional law and culture governing the Daniel Determination Area and who identified as Yindjibarndi.[513]
5. It was agreed that YAC's board would accept as a member of YAC any person in respect of whom the Elders' Subcommittee made a recommendation of eligibility for membership or who was determined, by Mr Chambers or Mr Stevens, to be a Yindjibarndi person who held in common the body of traditional law and culture governing the Daniel Determination Area and who identified as Yindjibarndi.[514]
6. The Elders' Subcommittee established under the Settlement Deed comprised Ms Pansy Sambo, Ms Joyce Hubert, Ms Sylvia Allan and Ms Diana Smith.
7. The Elders' Subcommittee met on 30 October 2013 and on 10 January 2014.
8. As at the date of the Settlement Deed, 112 membership applications were awaiting determination, and were referred to the Elders Subcommittee for consideration.[515] Further applications for membership were submitted for consideration by the Elders' Subcommittee on 16 December 2013, by which point it appears that there were 220 applications in total for consideration by the Elders' Subcommittee.[516] By the time the Elders' Subcommittee met on 10 January 2014, there were 227 outstanding membership applications for consideration.[517] Accordingly, the final position was that in addition to the initial 112 membership applications referred for consideration by the Elders' Sub-committee, a total of 198 additional membership applications (and thus 320 applications in total) were referred by YAC for consideration by the Elders' Subcommittee.[518]
9. Ms Allan deposed that on 30 October 2013, she attended a meeting of the Elders' Subcommittee in Roebourne. At that meeting, the Elders' Subcommittee considered 198 applications for membership of YAC. She deposed that the process adopted by the Elders' Subcommittee was that the Elders considered each applicant's application, and recorded the outcome of each application on a list by writing next to the applicant's name 'Y' if they recommended the applicant should be accepted as a member, 'N' if they recommended the applicant should not be accepted, and a '?' or 'N?' or 'Y?' if they were not sure. Ms Allan and Ms Smith kept a record of those conclusions, as did Ms Pansy Cheedy and Ms Hubert. A copy of the record prepared by Ms Allan and Ms Smith, on the one hand, and Ms Cheedy and Ms Hubert, on the other hand, was annexed to Ms Allan's affidavit.[519] The outcomes recorded in each document, which were provided to the YAC directors, were not identical.[520]
10. A meeting of the directors of YAC was held on 7 November 2013.[521] One of the items for discussion at the meeting was the progress made by the Elders' Sub-committee. Pansy Sambo reported to the directors about the meeting of the Elders' Subcommittee on 30 October 2013. The minutes record the following discussion:[522]

Philip Davies tabled the two spreadsheet printouts which held the names of the people applying for YAC memberships that were considered at the Membership Committee meeting. ...

There was much discussion on the two tabled spreadsheets.

The two spreadsheets do not match, particularly regarding the applications where agreement was reached on seeking further information [from an anthropologist]. The Directors decided to seek further clarification on the agreement reached by the Membership Committee on each of the applicants, so that one agreed document can be finalised, and signed by each member of the membership committee, so that subsequent agreed action can be taken.

1. The directors resolved to postpone any decision on the YAC membership applications which had been considered by the Elders' Subcommittee so that the Sub-committee's determination could be clarified and signed off by each of the members of the Subcommittee.
2. A further meeting of the Elders' Subcommittee was held on 10 January 2014, at which 227 applications for membership were considered (or reconsidered). Once again, Ms Smith and Ms Allan recorded the outcome of the Sub-committee's deliberation on each application, as did Ms Cheedy and Ms Hubert. Copies of the records made by them were also in evidence. Again, the outcomes recorded on each list were not identical.[523]
3. Regrettably, a dispute or disputes then arose between the plaintiffs and the defendants in relation to the outcome of the deliberations of the Elders' Subcommittee. A dispute arose in respect of the number of applications that were recommended for acceptance for membership and the number recommended for rejection, or, alternatively, which were unresolved.[524] There was also a dispute as to whether the members of the Elders' Sub-committee should be permitted to have a support person present with them during their deliberations. There was also a dispute as to whether the YAC board should deal with any membership applications at all, until the Elders- Sub-committee had entirely completed its task.[525]
4. It is apparent from the evidence that the disagreements between the members of the Elders' Sub-committee about which applicants were Yindjibarndi people reflect differing views about what it means to be a Yindjibarndi person who is a descendant of a Yindjibarndi ancestor, who identifies as Yindjibarndi and who is recognised as a member of the Yindjibarndi community. Some insight into the basis for this disagreement was disclosed by Ms Allan's evidence. She explained that in many of the cases where the Elders disagreed, 'the argument was whether someone could be a Yindjibarndi person if part of their family was from another group such as Ngarluma'.[526] By way of example, Ms Allan referred to the application by Derryn Churnside for membership of YAC. Ms Allan explained that she and Ms Smith considered Mr Churnside to be Yindjibarndi because his grandfather, Jimmy Horace, was a senior Yindjibarndi man, and because Mr Churnside had been through the Yindjibarndi laws. However, Ms Sambo and Ms Hubert were of the view that Mr Churnside was not Yindjibarndi because his mother was Ngarluma.[527]
5. Similarly, Ms Allan explained that they had put a 'Y' (for Yes) next to the name of Cindy Adams, who is Ms Allan's niece, because her mother was Yindjibarndi.[528] In contrast, they had put a letter 'N' (for No) next to the name of Lorraine Allan, because Lorraine (who is Ms Allan's daughter) followed the Kariyarra way, which was the way of Lorraine Allan's paternal grandmother.[529] Similarly, Ms Allan was aware that Lorraine Allan's daughters, Cassandra, Diana and Jenna (who had also applied for membership of YAC) followed the Kariyarra way, and as a result, Ms Allan and Ms Smith put an 'N' (for No) next to their names on the list of applicants for membership of YAC.[530]
6. Ms Allan deposed that after the meeting of the Elders' Subcommittee on 10 January 2014, Mr Irving prepared a document which purported to record the outcomes of the Sub-committee's deliberations. Ms Allan's evidence was that that document was inconsistent with the outcomes that she and Ms Smith had recorded at the meeting.[531] The plaintiffs' view was that that document listed 'many applications as having been rejected despite the fact that at the earlier meeting in October 2013, all members of the Elders' Sub-committee had accepted these applications for membership'.[532]
7. The directors of YAC met on 23 January 2014.[533] One of the items for discussion at the meeting concerned the outcome of deliberations of the Elders' Subcommittee on 10 January 2014. The minutes record that the directors understood that the members of the Subcommittee had signed off on their decisions and had informed the board that the outcomes were agreed by all four members of the Subcommittee. (Regrettably, it appears that the board acted on information provided by Ms Sambo and Ms Hubert, as to the outcome of the Elders' Subcommittee meeting, when in fact those outcomes were not agreed by Ms Allan and Ms Smith.) The directors then resolved as follows:[534]

That the YAC Directors in accordance with the recommendations made by the Elders subcommittee ... at their meeting held on 10 January 2014, accept the following applicants for membership in YAC; noting however, that:

1. Of the 104 people approved for acceptance by the Elders subcommittee, 5 of these people are already members
2. That 9 of the applicants did not have addresses attached to their applications and therefore, unless otherwise advised, they cannot be entered into the Register of Members.
3. The minutes then record the names of 99 persons whose applications had been approved for membership.
4. The directors also resolved:

That in accordance with the recommendations made by the Elders subcommittee ... at their meeting held on 10 January 2014, the following 123 applicants for membership in YAC be rejected.

1. The 123 applicants whose applications were rejected were listed in an attachment to the minutes. The minutes also recorded that 10 of those applicants did not include their address in their application. (That had the consequence that they could not be immediately notified of the outcome of their application.)
2. For completeness, I note that a further agenda item from the same meeting concerned additional applications for YAC membership received by YAC. The minutes record that 49 named persons were accepted as members of YAC.[535] There was no evidence as to why those membership applications were dealt with outside the membership process under the Settlement Deed. The admission to membership of applicants outside the Elders' Sub-committee process during this period was also the subject of complaint by the plaintiffs.[536]
3. Mr Irving deposed that after the Elders' Sub-committee meeting in January 2014, there remained 131 applications about which the Elders were unable to agree.[537] The YAC board engaged Mr Robin Stevens, an anthropologist, to attempt to assist the Elders to reach agreement, and then later, to provide an opinion on whether any of the outstanding applications for membership should be accepted by the YAC board. The board also requested that the Subcommittee reconvene on 19 February 2014, to consider all membership applications, and to provide the board with a single report signed by each member of the Elders' Subcommittee which contained the Subcommittee's recommendation in respect of each membership application.[538]
4. The board's decisions on membership at its meeting on 23 January 2014, and its resolutions as to how outstanding membership applications should be dealt with, were not favourably received by the plaintiffs and their solicitors. The solicitors for the plaintiffs in this action, Integra Legal wrote to Mr Irving, the solicitor for YAC, by letter dated 17 February 2014, to advise[539]

it is not for the Board of YAC to determine how the Elders SubCommittee is to deal with the task specified in Clause 5 of the [Settlement Deed]. Accordingly, the resolutions noted in the letter of 14 February 2014 are irrelevant and of no force and effect.

1. The Elders' Subcommittee was scheduled to meet 19 February 2014.[540] The plaintiffs' solicitors advised that Ms Allan and Ms Smith were not available to attend on that occasion.[541] However, Ms Hubert and Ms Sambo met, and they discussed a list of 312 applications with Mr Robin Stevens, the anthropologist.[542]
2. Further disputes then arose. The plaintiffs did not consider that it was appropriate that Mr Stevens meet separately with Ms Sambo and Ms Hubert.[543] Further, the plaintiffs then sought to obtain a copy of the list of 312 membership applications, which had been discussed between Mr Stevens and Ms Sambo and Ms Hubert.[544] A further meeting of the Elders' Sub-committee was proposed for 27 February 2014. Ms Smith and Ms Allan refused to participate in that meeting unless they first received the list of 312 applications for membership considered at the meeting on 19 February 2014. (They were not provided with a copy of that list until 14 March 2014.[545])
3. After the unsuccessful attempt to reconvene the Subcommittee on 27 February 2014, Mr Stevens offered to provide the YAC board with a report on his observations of the process to date, from an independent anthropological standpoint.[546]
4. Mr Irving, as inhouse counsel for YAC, requested that the plaintiffs consider that report and Mr Stevens' recommendations with a view to determining whether the plaintiffs were amenable to adopting a process, going forward in accordance with Mr Stevens' recommendations.[547]
5. The plaintiffs disputed both Mr Stevens' interim conclusions and his impartiality. By letter dated 21 March 2014, the plaintiffs' solicitors, Integra Legal contended that[548]

... Mr Stevens has clearly exceeded any "authority" he may have had to be involved in the process, has displayed complete lack of impartiality and can no longer be described or considered as "independent".

1. Further, Ms Allan's evidence was that she considered that Mr Stevens had made mistakes in his reference to Yindjibarndi ancestors. Ms Allan claimed that her views about Yindjibarndi ancestry were based on the genealogies which had been prepared for the Yindjibarndi people's original native title determination.[549]
2. There was, however, a further attempt at deliberations by the Elders' Sub-committee. On about 31 March 2014, Ms Allan and Ms Smith approved a 'membership application action list' which provided for a process to deal with the remaining membership applications, and met to review a list of 325 membership applications and to confirm their opinion as to the outcome of each application.[550]
3. By letter dated 3 April 2014, Ms Allan and Ms Smith provided their views in respect of the list.[551] On 9 April 2014, Ms Sambo and Ms Hubert met to review the list of 325 applications.[552] While the Subcommittee had reached the same conclusion in respect of a considerable number of applicants, they were unable to reach either a view, or consensus, in respect of a large number of applicants. It appears that there were between 129 and 131 applications on which the Elders had not been able to reach a view.
4. The plaintiffs' solicitors proposed that the Elders' Subcommittee meet on 1 May 2014 to consider those applications.[553] However, in the end, the Elders' Subcommittee did not meet again. Instead, it appears that YAC took the view that the view expressed by each of Ms Allan and Ms Smith on 31 March 2014, and by Ms Hubert and Ms Sambo on 9 April 2014, constituted their 'final position' in respect of each of the 325 membership applications which had been considered. The board then requested that Mr Stevens provide a final report in respect of the membership applications on which the Elders had been unable to reach a decision. The YAC board determined that it would consider the membership applications, in light of this information, and purportedly in accordance with cl 5.5 of the Settlement Deed.[554] Mr Stevens was instructed that the Elders' Subcommittee had previously reached agreement in respect of 192 applicants for membership and he was asked to consider a further 131 applications.[555]
5. A copy of Mr Stevens' final report dated 1 May 2014 was in evidence.[556] Mr Stevens indicated he was not able to identify a genealogical link to a Yindjibarndi apical ancestor for a number of applicants. He recommended that their membership applications be rejected, on the basis that they should be invited to provide evidence of a genealogical link to a Yindjibarndi apical ancestor if they wish to pursue membership further.
6. For other applicants, Mr Stevens was able to identify a Yindjibarndi ancestor, but he was unable to form a view as to whether these persons had met the other criteria for membership of YAC. Consequently, Mr Stevens recorded these applications for membership as remaining 'undetermined' as of the date of his report. As Mr Stevens explained the existence of a genealogical link to a Yindjibarndi ancestor was not enough in itself to determine whether someone was Yindjibarndi, that is, someone who holds in common the body of traditional law and culture. Mr Stevens explained that the indigenous people of the Pilbara are likely to have ancestors from multiple tribal groups, including Yindjibarndi ancestors:[557]

The key question is, which line of ancestors does an individual follow in terms of Law and culture. It is their Yindjibarndi ancestors ... or some other ancestor? By looking at the genealogies alone an anthropologist (or anyone else) cannot determine this without further enquiry. If, of course, a person does not even have a genealogical link (apical ancestor) to a particular group (eg Yindjibarndi) any claim to belong to that group is hollow. ...

...

To expand very briefly, to be enculturated into a particular group, in the case of Indigenous people - to follow traditional Law and culture, is to have been raised and immersed in the traditional customs, lore, ritual Law and belief, among other things of a particular group. While every Indigenous person in the Pilbara will have relatives and ancestors in other (tribal) groups, whom they may respect and feel a personal sense of family connection, that is not the prime criteria for cultural affiliation. Otherwise everyone would be Yindjibarndi ... . One culture group is primary for every individual. And one would expect an individual who is Yindjibarndi, for example, to have an Yindjibarndi ancestor in every generation above them from whom they inherited their Law and culture; one would expect them to be part of or at least supportive of the Yindjibarndi native title claims or other land management/land affiliation matters, and not be party to another native title claim; one would expect them to have a long history of participation in Yindjibarndi Law and practice, and so on. ....

In short, working with genealogies alone I can determine that an individual is Not Yindjibarndi if they have no clear Yindjibarndi ancestor. But I cannot determine someone is Yindjibarndi even if they do have an Yindjibarndi ancestor. That requires further investigation, involving extensive fieldwork, and is probably beyond the scope of YAC to undertake.

1. For those applicants with a genealogical link to a Yindjibarndi apical ancestor, Mr Stevens expected that some would be Yindjibarndi, and some would not.[558]
2. That determination prompted the plaintiffs' solicitors to propose that Mr Stevens be given time to allow him to properly undertake, within a reasonable time, the tasks required under the Settlement Deed of release, including time to make such other enquiries as he reasonably determined to enable him to determine the undetermined membership applications.[559]
3. A meeting of the directors of YAC was held on 5 May 2014.[560] The primary items of business concerned determination of membership applications. At this meeting, the directors considered the report on membership applications prepared by Mr Stevens on 1 May 2014. The minutes record the following discussion and resolutions:[561]

YAC Membership Issue number One

... 17 persons whose applications were previously approved in error on 22 October 2013 (and whose details were entered into the Register) but whose applications have been left 'Undetermined' by Robin Stevens, along with the person whose application was previously in error but has since been rejected by Robin Stevens, be given written notice, under Rule 3.7 of YAC's constitution, to the effect of that:

1. their membership application was approved in error;
2. (in respect of [one applicant], whose application was rejected by Robin Stevens) that an expert anthropologist has been unable to find any link to a Yindjibarndi apical ancestor;

1. (in respect of the 17 persons whose applications were left 'Undetermined' by Robin Stevens) that an expert anthropologist has been unable to determine whether or not they are eligible for membership under Rule 3.1; and

1. (in respect of all 18) unless they can provide evidence to the satisfaction of Robin Stevens that they are eligible for membership in YAC, under Rule 3.1, within 14 days, their membership in YAC may be cancelled.

1. The directors resolved that they would write to those 18 persons referred to and state that unless they could prove they were a Yindjibarndi person within 14 days, then their membership may be cancelled.[562]
2. The directors then resolved:[563]

That the Board rescinds the decisions made by the Board on 23 January 2014 that relate to:

1. the 49 applications received directly by YAC, which were approved by the Board ... ;
2. the 99 applications forwarded by Integra [the solicitors for WMYAC], which were approved by the Board ... ; and

1. the 123 applications forwarded by Integra, which were rejected by the Board ... .

1. The directors then further resolved:[564]

That the Board approves the 172 applications unanimously recommended for acceptance by the Elders SubCommittee, as indicated on the list of all 325 membership applications, signed by each member of the Elders SubCommittee; and the 3 applications recommended for acceptance by Robin Stevens.

...

That the Board rejects the 20 applications unanimously recommended for rejection by the Elders SubCommittee, as indicated on the list of all 325 membership applications, signed by each member of the Elders SubCommittee, and requests YAC write to each of them, in accordance with Rule 3.2, explaining the reason for rejection is that they are ineligible for membership under Rule 3.1.

...

That the Board rejects the 52 applications recommended for rejection by Robin Stevens, ... and requests YAC write to each of them, in accordance with Rule 3.2, explaining that the reason for rejection is that an expert anthropologist has been unable to link them to an Yindjibarndi apical ancestor.

1. Finally, a further 74 membership applications were deferred.[565]
2. As a result of the disputes in relation to performance of the parties' obligations under the Settlement Deed, the plaintiffs served on the defendants a notice of default dated 27 June 2014.[566]
3. The parties subsequently endeavoured to achieve a mediated outcome to their disputes in relation to membership. For that purpose, they entered into an agreement dated 31 July 2014, which supplemented the Settlement Deed.[567] Under that agreement, the parties agreed that the Elders' Subcommittee would meet again in Roebourne in early August 2014, with Mr Stevens and in the presence of a mediator, for the purpose of determining whether or not to recommend to the board of YAC that any of the persons whose membership applications had not been finally determined should be accepted as a member of YAC. The parties agreed that Mr Stevens would record in writing the outcome of all decisions reached, and that that record of the decisions would be signed by both him and by the mediator, before being delivered to the board of YAC.
4. As part of that agreement, YAC agreed that it would accept as a member of YAC any person for whom there was a recommendation that the applicant should be approved as a member. YAC also agreed that the board would ensure that YAC's Register of Members was amended before notice of the 2013 AGM was given to members.[568]
5. On 4 August 2014, Ms Allan, Ms Smith, Ms Cheedy and Ms Hubert met, together with Mr Stevens and Chaney J of this Court (who acted as the mediator). At that meeting, the Subcommittee considered 128 membership applications and recorded the outcomes of each application on a single list.[569]
6. In accordance with the determinations reached in that process, the YAC board met on 11 August 2014, and resolved that 58 persons whose membership applications had been recommended for acceptance be accepted as members, that 27 persons whose membership applications had been recommended for rejection be rejected; and that 40 persons whose membership applications had been left 'undecided' were deferred for further consideration by the board following YAC's 2013 AGM.[570] In addition, the board resolved to remove the names of two people from YAC's Register of Members, and to cancel their membership, on the basis that one had been found ineligible for membership, and the eligibility of the other person was in doubt and needed to be determined.[571]
7. Mr Irving, inhouse counsel for YAC, confirmed that on 11 August 2014, the YAC board accepted the 58 persons whose membership applications had been recommended for acceptance by the Elders' Subcommittee. Mr Irving confirmed that with the exception of 12 members whose membership applications did not include their addresses, YAC's Register of Members was updated at that stage. Having confirmed the accuracy of the contact addresses for the remaining 12 members, Mr Irving advised them that they were entitled to attend YAC's 2013 AGM.[572]
8. Notwithstanding the completion of the further mediated process for resolving membership applications, the plaintiffs considered that there had been further defaults by the defendants in the performance of their obligations under the Settlement Deed. These were set out in a notice of default issued by the plaintiffs on 4 August 2014.[573]
9. The plaintiffs contended that YAC had entered into the Register of Members of YAC persons whose membership claims were rejected by members of the Elders' Subcommittee established under cl 5 of the Settlement Deed, and by Mr Stevens, and in circumstances where the board of YAC rejected, or otherwise did not approve, that person being admitted to membership and that YAC had failed to correct the register; that YAC had failed to enter into the register of current members the names of persons whose membership claims were accepted by the members of the Subcommittee, and in respect of whom the YAC board had approved membership; and that YAC had removed the names of certain persons from the register of current members without justification.[574]
10. On 19 August 2014, Mr Irving, YAC's inhouse counsel, advised the solicitors for the plaintiffs that the failure to include on the Register of Members the names of persons whose applications for membership had been approved was due to the fact that YAC had contacted each of those persons, requesting that they confirm their address so that their details could be included in the Register of Members, and no response had yet been received from any of those persons. Mr Irving also advised that in respect of those persons whose names had been removed from the Register of Members, those names had been removed because the individuals in question were deceased.[575]
11. On about 4 September 2014, the board of YAC subsequently resolved to admit to membership those individuals who were previously accepted for membership without addresses and to enter those persons' details into the Register of Members.[576]
12. Nevertheless, on 16 September 2014, the plaintiffs served a notice of termination and notice in respect of the Settlement Deed.[577]

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. As the plaintiffs do not contend that YAC's conduct in dealing with membership applications in the process adopted under the Settlement Deed was oppressive, no question of relief for oppression arises out of this aspect of the facts.
2. One matter which should be noted, however, is that YAC's decision to admit persons to membership in accordance with the process in the Settlement Deed appears to have been made despite the continued perception that the applicants were largely WMYAC members who sought membership of YAC with a view to taking over YAC. Mr Woodley's view was that the applicants who submitted their applications through WMYAC's solicitors had never approached YAC directly to become members.[578] In these circumstances, YAC's decision to admit members despite its continuing concerns about WMYAC's desire to 'take control' of YAC is significant for the purposes of the overall question of whether, and what, relief should be granted for those instances of oppressive conduct concerning membership which have been made out.

(d) Wrongful denial of membership to persons approved by the board in 2014 to be eligible for membership

1. The plaintiffs contend that at its meeting on 5 May 2014, the YAC board approved applications for membership from a number of persons, including 17 individuals, namely Nathan Baron, Conroy Bobby, Jannalee Mather, Adrian Ranger, Alex Ranger, Alfred Ranger, Davina Ranger, Margaret Ranger, Robin Ranger, Sarah Ranger, Sasha Ranger, Tara Ranger, Yasmine Ranger, Anthony Murray Wheelock, Clifford Larry, Katrina Larry and Samantha Norman (17 applicants).[579] The plaintiffs contend that Clifford Larry, Katrina Larry and Samantha Norman were not persons whose applications were recommended for acceptance by the Elders' Sub-committee, but rather were persons who, on an objective construction of Mr Stevens' report, were recommended for membership.[580] The plaintiffs contend, in any event, that those persons, in addition to the other 14 persons, were accepted for membership by the board, and were then entitled to have their names entered onto the membership register.[581] The plaintiffs contend that the 17 applicants were not included within the membership register in a reasonable time, and were not included before 20 August 2014, when notice of the AGM for 10 September 2014 was given.[582]
2. The plaintiffs contend that the 17 applicants did not receive notice, or adequate notice, of the AGM.[583] The plaintiffs concede that 12 of the 17 applicants had their names entered onto the membership register by 7 September 2014.[584]
3. The plaintiffs acknowledge that Katrina Larry was added to the membership register by a resolution on 16 December 2015, but her name was later removed, along with 45 others, in accordance with orders made by Le Miere J on 9 March 2016[585] (I discuss that matter further below from [996]). The plaintiffs also acknowledged that Alex Ranger, Clifford Larry and Samantha Norman resubmitted applications for membership prior to 1 June 2016, but were not admitted to membership on that occasion.[586]
4. The plaintiffs contend that the failure to include the 17 applicants' names on the membership register within 14 days was a breach of s 144-10(5) of the CATSI Act. They also contend that a failure to include the 17 applicants' names on the membership register within a reasonable time was also a breach of rule 3.2 of YAC's Rule Book.[587] They say YAC's conduct constituted conduct caught by s 1661(1)(d) and (e) of the CATSI Act.
5. The defendants do not dispute that the 17 applicants were not added to the membership register when YAC updated its membership register following the directors' meeting on 5 May 2014.[588] They say that 12 of those persons did not include on their membership application a residential address, that information provided by the plaintiffs' solicitors was that two of the persons (namely Adrian Ranger and Alex Ranger) were deceased, and that YAC concluded that three of the applications (Clifford Larry, Katrina Larry and Samantha Norman) had been accepted for membership by mistake.[589]
6. The defendants say that YAC did not accept Clifford Larry and Katrina Larry's applications for membership. In relation to Samantha Norman, the defendants say that the Elders' Sub-committee did not recommend her for membership of YAC, and consequently that the directors deferred consideration of her application for membership.[590]
7. The defendants' case is that on 7 August 2014, YAC wrote to those 12 persons for whom it did not have a residential address and requested that they provide a residential address, and that following the provision of that information by the plaintiffs' lawyers on 2 September 2014, YAC updated its membership register to include those persons on 7 September 2014.[591] The defendants' case is that that was within 14 days of YAC having been provided with all information required in a membership application, and in any event within a reasonable time.[592] The defendants also say that YAC advised those 12 persons that they were entitled to attend the AGM on 10 September 2014, and that 4 of those persons attended and 2 others appointed a proxy.[593]
8. The defendants say that YAC's conduct did not involve any contravention of s 144-10(5) of the CATSI Act, or rule 3.2 of the Rule Book, and was not oppressive conduct within the meaning of s 166-1(1) of the CATSI Act.[594] In the alternative, the defendants say that even if YAC's conduct in relation to the 17 applicants was oppressive, the Court should not grant relief because any such oppression has ceased and has been remedied by the addition of 12 of those persons' names and details to the Register of Members, and the invitation of those persons to attend AGM on 10 September 2014.[595]

1. I make the following findings about the facts underlying this part of the case.
2. There is no dispute that the 17 applicants were persons whose names were included in the 172 applications accepted at the directors' meeting on 5 May 2014. That was clearly the case.[596]
3. The names of the 17 applicants were not included in YAC's updated membership list as at 7 July 2014.[597]
4. As for the 12 persons who YAC says did not include residential addresses in their membership applications, I note that each of these was the subject of complaint in the notice of default served by the plaintiffs in respect of the Settlement Deed, and to which I have already referred.[598]
5. On 10 December 2013, YAC's inhouse counsel sent an email to the plaintiffs' solicitors, drawing their attention to the absence of a residential address for a number of those applicants, and noting that the absence of an address would mean that they could not be properly entered into the Register of Members, and could not be provided with notice of any AGM.[599] There was no evidence to suggest that that omission as rectified before August 2014.
6. YAC wrote to the 12 applicants in question on 7 August 2014, at the address provided with their membership applications, requesting that they confirm their address within 7 days, to enable their name and details to be included in YAC's membership register. No responses were received within that period.[600]
7. On 18 August 2014, the plaintiffs' solicitors emailed Mr Irving, inhouse counsel for YAC, to complain that the names of those persons had not been included in YAC's membership register.[601] By letter dated 19 August 2014, Mr Irving wrote and explained the position in respect of those 12 applicants.
8. By email dated 2 September 2014, the plaintiffs' solicitors provided clarification of the 12 applicants' residential addresses.[602]
9. The names of those 12 applicants were included in YAC's membership register as updated on 7 September 2014.
10. Mr Irving's evidence was that those persons were subsequently advised that they were entitled to attend the next AGM on 10 September 2014.[603]
11. In relation to the membership applications for Adrian Ranger and Alex Ranger, the plaintiffs' solicitors advised YAC, on 16 December 2013, that both applicants were deceased.[604]
12. It is not entirely clear what the position was in respect of the applications of Clifford Larry, Katrina Larry and Samantha Norman, because although their applications were among those accepted by the directors on 5 May 2014, their applications were considered at the meeting on 4 August 2014 which was mediated by Justice Chaney. The inclusion of their names in that process is noted as pursuant to a letter from Mr Irving dated 10 July 2014, but that document was not in evidence.[605] Whatever occurred, I infer that no final determination was made in respect of those three applicants prior to 4 August 2014.
13. What is clear is that the outcome of the mediated process on 4 August 2014 was that the Elders' Subcommittee determined that Clifford Larry and Katrina Larry would not be recommended for membership of YAC, while Samantha Norman's application was recorded as 'undecided'.[606]

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. In my view, the plaintiffs have not established a breach of s 14410(5) of the CATSI Act, or rule 3.2 of the Rule Book in relation to the alleged failure by YAC to advise the 17 applicants that their applications for membership had been accepted. In addition, the plaintiffs have not established that YAC's conduct constituted oppressive conduct of the kind described in s 166-1(1) of the CATSI Act.
2. In so far as the 12 applicants whose residential addresses were not provided with their membership applications, in my view, YAC took reasonable steps, as early as December 2013, to advise the plaintiffs' solicitors that it did not have residential addresses for a number of the applicants, and after having determined that their applications should be accepted, YAC wrote to those applicants requesting clarification of their residential addresses. There was some delay in YAC doing so, but given that the applicants concerned did not respond, at least within the time requested by YAC, when YAC wrote seeking clarification of their addresses, the delay does not, in my view, amount to oppressive conduct in all of the circumstances.
3. In so far as Adrian Ranger and Alex Ranger are concerned, the plaintiffs have no basis for any complaint. As the information made available to YAC, from the plaintiffs, albeit erroneously, was that those two persons were deceased, any criticism for YAC in failing to include their names in its membership register would be absurd.
4. Finally, in so far as Clifford Larry, Katrina Larry and Samantha Norman are concerned, as clearly no final determination had been made in respect of those three applicants prior to 5 August 2014, no criticism can be levied at YAC for failing to include those names in its membership register prior thereto. As none of their membership applications were accepted prior to 10 September 2014, no complaint can be made by the plaintiffs that they were not given notice of the AGM on that date.

What relief, if any, should be granted in respect of this incident of oppressive conduct?

1. Given my conclusions, no question of relief arises for consideration.

(e) Approval (in November 2015) of membership applications by YAC's purported board, and subsequent registration of the membership applicants as members of YAC, for an improper purpose

1. The plaintiffs' case is that YAC had scheduled the AGMs for the 2014 and 2015 years to be held concurrently on 30 November 2015. At that meeting, motions for the appointment of directors were put to the meeting, but no person obtained the necessary majority of votes to secure appointment. YAC subsequently scheduled a further AGM for 1 February 2016.
2. The plaintiffs' case is that YAC's directors met on 15 December 2015 and admitted 46 new members to membership of YAC (46 members).[607] Proceedings in this Court were then commenced by John Sandy for an injunction to restrain YAC from proceeding with the AGM on 1 February 2016. The plaintiffs rely on the fact that on Le Miere J found that the purported directors' resolution to admit the 46 members was passed for an improper purpose.[608] The plaintiffs say that the admission of the 46 members to membership of YAC was conduct which was unjustified, unlawful and oppressive for the purposes of s 166-1(1) of the CATSI Act.[609]
3. The defendants say that the YAC directors met on 16 December 2015, considered 90 membership applications, and admitted the 46 members.[610] Their names were added to YAC's membership register on 24 December 2015.[611] There is no dispute that Le Miere J held that the resolution to accept the membership applications from the 46 members was passed for an improper purpose, and was therefore invalid.[612]
4. The defendants do not deny that the directors' resolution accepting the 46 members was oppressive within the meaning of s 1661(1) of the CATSI Act, because the resolution was passed for an improper purpose.[613] However, the defendants say that no relief should be granted under s 166-5 of the CATSI Act because the oppression has ceased and was remedied by the orders made by Le Miere J, and by the action taken by the Registrar.[614]

1. Although there is no dispute that the admission to membership of the 46 members was for an improper purpose, and constituted oppressive conduct for the purposes of s 166-1(1) of the CATSI Act, it is appropriate - for the purpose of considering whether any relief should be granted - to consider the conduct of YAC in its context, and having regard to the findings made by Le Miere J.
2. The AGMs for the 2014 and 2015 years were held, concurrently, on 30 November 2015 at the 50 Cent Hall in Roebourne. Agenda item 8 concerned the appointment of directors. A motion was put that the incumbent directors (other than Ms Tucker) be re-appointed as directors. That vote did not achieve the requisite special majority. A motion was then put that 12 persons who were members of WMYAC be appointed. That vote also did not achieve the requisite special majority. Justice Le Miere concluded that from that day onwards, YAC had no validly elected directors.[615]
3. At the meeting, and just prior to the vote for directors, Charmaine Adams, May Adams, Rodney Adams and Cindy Adams had signed a note, which was handed to Mr Davies, to indicate that they wished to resign from membership of YAC. The same note bore the names of Michelle Adams, Vincent Adams and Brenton Mills, although none of them had signed the note and none of them were present at the AGM. (The same note also bore the name of Renee Wally, but her name and signature had been crossed out.)[616] Discord within YAC's membership was evidently running high.

1. A meeting of the directors of YAC was purportedly held on 16 December 2015.[617] One of the items of business was the resignation, or purported resignation, of various members, on 30 November 2015. The directors agreed that Michelle Adams, Vincent Adams and Brenton Mills should not be regarded as having resigned from membership of YAC, given that the purported resignation note had not been signed by them and they were not at the meeting on 30 November 2015.[618] The directors noted that Charmaine Adams had confirmed her resignation from YAC in an email to Mr Davies on 3 December 2015. However, on 3 December 2015 Mr Davies had received a letter, signed by May Adams, Rodney Adams, Cindy Adams and Renee Wally, seeking to withdraw their letter of resignation which was submitted at the AGM on 30 November 2015. In those circumstances, the directors agreed that by virtue of their written resignation, and in the absence of a new membership application, May Adams, Rodney Adams and Cindy Adams would not be considered for membership at the meeting, but were welcome to reapply for membership of YAC. (In relation to Renee Wally, the directors did not act on her purported resignation because her name and signature were crossed out on the note handed to Mr Davies on 30 November 2015, and they concluded that she remained a member of YAC.[619])
2. Further discussion of membership applications then ensued. The minutes indicate that the directors considered the 40 membership applications which remained undetermined at the conclusion of the process under the Settlement Deed, and which had been deferred for future consideration at the directors' meeting on 11 August 2014. In the end, the directors considered a total of 51 membership applications.[620] Three applicants were identified as persons who were already members of YAC. Of the remaining applicants, the directors resolved to accept the applications for membership by the 46 members, to reject one application, and to seek further information from the final applicant.[621]
3. The directors further resolved that a special general meeting should be held on 1 February 2016, and that the business of that meeting should include the appointment of directors.[622]

The challenge brought by John Sandy as to the validity of the resolutions passed on 16 December 2015

1. One of YAC's members, Mr John Sandy, then brought proceedings to challenge the validity of the resolutions passed at the purported meeting of the directors on 16 December 2015. Mr Sandy contended that the meeting was not validly convened for a variety of reasons.
2. First, Mr Sandy contended that the terms of appointment of all of YAC's directors had expired on 10 September 2015. By virtue of s 24625(4) of the CATSI Act, the terms of the directors were extended until the next general meeting, which was held on 30 November 2015. However at that meeting, motions for the appointment of directors were put, but not passed. Mr Sandy contended that that left YAC without validly appointed directors, and consequently, the directors' meeting on 16 December 2015 was not called by a valid director. Justice Le Miere accepted that contention[623] and concluded that the purported meeting of directors held on 16 December 2015 and the resolutions passed at that meeting were invalid, because the person who called the meeting and the persons who attended had ceased to be directors on 30 November 2015.[624]
3. Secondly, Mr Sandy contended that the directors' meeting on 16 December 2015 was invalidly held because reasonable notice of the meeting was not given to one of the directors, Ms Tucker. Justice Le Miere held that reasonable notice of the directors' meeting was not given to Ms Tucker, as she had not been given the usual seven days' notice of a board meeting.[625] His Honour held that this was an irregularity that could not have been remedied by an order of the court and, had it been necessary to do so, he would have declared the meeting of the directors on 16 December 2015 to have been invalidly held by reason of this procedural irregularity.[626]
4. Finally, and relevantly for present purposes, Le Miere J held that the resolution to accept applications from the 46 members was put and passed for an improper purpose, namely to influence the outcome of motions to be considered at the AGM on 1 February 2016 and, in particular, the election of directors who supported the CEO and the previous directors of YAC (other than Ms Tucker). His Honour held that the directors had passed that resolution and had resolved to hold a special general meeting early in 2016 in the belief that the new members would support the incumbent directors, other than Ms Tucker, in the vote on the board composition at that special general meeting.[627]
5. Among the factors relied upon by Le Miere J in reaching that conclusion, his Honour noted that the 46 members 'would be a significant addition to the YAC membership' but that then would not, of itself, be sufficient to obtain a majority vote in favour of the reappointment of the incumbent directors.[628] However, in concluding that the 46 members were admitted for an improper purpose, his Honour relied on evidence that of the 154 applications of WMYAC members for membership of YAC since 2012, 61 applications had been rejected, and 81 applications had not yet been dealt with by the board,[629] and he held that in considering membership applications on 16 December 2015, the directors had approved only the applications of members who were believed to be supporters of the incumbent directors, and did not consider other membership applications that had been outstanding since at least 2014.[630] His Honour held that YAC's Rule Book:

conferred on the directors the power to accept or refuse a membership application. To exercise the power for the purpose of manipulating the voting power of members, or creating a new majority of members, is foreign to the purpose of the power.[631]

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. As I have said the defendants did not dispute that the admission of the 46 members to membership of YAC was oppressive conduct for the purposes of s 166-1 of the CATSI Act. That concession was properly made. The admission of those members was clearly for the purpose of marshalling sufficient votes in favour of the incumbent directors as to outweigh those members who opposed them. That conduct clearly constitutes conduct which was wrongful and unfairly prejudicial to the members of YAC who did not share the views of the incumbent board.
2. The key question is, however, whether any relief should be granted in respect of that oppression.

What relief, if any, should be granted in respect of this incident of oppressive conduct?

1. In my view, no relief should be granted in respect of this incident of oppressive conduct. Justice Le Miere made a declaration that the resolutions made at the meeting on 16 December 2015 including the resolution to admit the 46 members to membership were invalid. The 46 members in question thus were not actually admitted to membership on this occasion. Most of those applications were considered again at a meeting of the directors on 29 June 2016, which is discussed below from [556]. Furthermore, YAC's conduct at the AGM on 30 November 2015, and the conduct of the directors on 16 December 2015, was expressly drawn to the attention of ORIC, and the only action taken by the Registrar was to issue the second compliance notice, the terms of which are discussed below. That action by the Registrar militates against the conclusion that any further action is required to address the oppressive conduct found to have taken place on 16 December 2015.
2. I will, however, consider this conduct further below, in determining whether YAC's conduct, overall, warrants the making of orders under s 1665 of the CATSI Act.

(f) Apparent bias in dealing with membership applications in June 2016

1. The plaintiffs plead that on 16 May 2016, the Registrar issued the second compliance notice to YAC which required it, amongst other things, to prepare draft policies and procedures that provided for all applications for membership to be considered and decided upon by the directors in a directors' meeting within a reasonable time after each application for membership was received; and to convene a directors' meeting, to be held by 30 June 2016, to consider and decide upon all known applications for membership submitted to YAC before 1 June 2016 that had not previously been accepted or rejected.[632]
2. The plaintiffs contend that between 25 May and 31 May 2016, YAC received a total of 130 applications for membership, lodged by the plaintiffs' then solicitors, or WMYAC, comprising 44 applications for persons whose applications YAC had previously purported to reject or which had previously been left undecided, and a further 86 applications. Of these, three applications were for persons who were already members of YAC, and one application was duplicated, so that there remained 126 applications.[633]
3. The plaintiffs contend that on 13 July 2016, YAC admitted 26 persons to membership of YAC, including 16 applicants whose applications were found by Le Miere J to have been invalidly accepted on 16 December 2016, as his Honour found that those persons were likely to support Mr Woodley and the previous incumbent directors of YAC.[634] The plaintiffs say that all of these 26 people were close relatives of the members of YAC's board, or of other members of YAC who had not supported WMYAC candidates for the election of directors at the concurrent YAC AGMs held in November 2015.[635]
4. The plaintiffs also contend that in June 2016, YAC refused applications for membership by 125 persons who were members of WMYAC.[636]
5. The plaintiffs' case is that in accepting only the 26 applicants, and rejecting the 125 WMYAC applicants, the directors of YAC acted in a biased fashion that was oppressive to a member or members of YAC, because the effect of those decisions was to dilute the voting power of members of YAC who supported WMYAC and to shore up support for the then board of directors of YAC.[637] The plaintiffs contend that that conduct was conduct caught by s 1661(1)(d) and (e) of the CATSI Act.[638]
6. In advancing that contention, the plaintiffs also rely on the fact that in June 2016, 8 of the 12 directors of YAC were persons who had purported to act as directors between 30 November 2015 and 9 March 2016, and who were found by Le Miere J to have used their power to admit members for an improper purpose.[639]
7. Although not expressly pleaded in their SIFC, as I understood the plaintiffs' case, at least as it was summarised in closing,[640] the plaintiffs also claimed that in determining the membership applications on 29 June 2016, the directors of YAC applied membership policies which enabled them to refuse membership to WMYAC members and supporters.
8. Further, the plaintiffs contend that YAC did not issue letters to at least some of the rejected applicants until 22 July 2016.[641] They say that that constituted a failure to comply with the requirements of the second compliance notice, in that notice of the directors' decision to reject those applications was not given within a reasonable time of their decision, contrary to s 144-10(6) and (7) of the CATSI Act. The plaintiffs contend that that contravention of the CATSI Act also constituted conduct caught by s 1661(1)(d) and (e) of the CATSI Act.[642]
9. The defendants do not dispute that the Registrar issued the second compliance notice, as the plaintiffs contend.[643] The defendants also do not dispute that the plaintiffs' solicitors, or WMYAC, submitted 126 membership applications at the end of May, as the plaintiffs contend.[644]
10. The defendants' case is that on 29 June 2016, the directors considered 184 outstanding membership applications,[645] comprising the 40 membership applications that were undecided as part of the membership process under the Settlement Deed; 44 membership applications resubmitted by Integra Legal in late May 2016; 45 of the membership applications invalidly accepted on 16 December 2015 (between which categories there was some overlap); and 86 membership applications provided to YAC by WMYAC in late May 2016.[646]
11. The defendants say that the directors accepted 25 applications[647] and refused 146 applications. The defendants say that the details of those 25 new members were included in YAC's membership register on 13 July 2016.[648]
12. The defendants also say that the directors did not consider and determine the 44 membership applications submitted by the plaintiffs' solicitors on 29 June 2016, because YAC misplaced an envelope containing those applications and it was not discovered until after that date. However, the defendants say that YAC had in fact already considered 33 of those applications because they were duplicated in the 40 membership applications left undecided following the membership process under the Settlement Deed, which were considered and determined by the directors on 29 June 2016. A further application (from Alex Ranger) had previously been accepted, but his name and details had not been added to the Register of Members.[649]
13. The defendants do not dispute that the applications refused on 29 June 2016 included applications from persons named in the plaintiffs' list of 125 unsuccessful applicants, other than for 11 applicants identified by the plaintiffs.[650] The defendants' case appeared to be that those 11 applications were among those in the envelope which was misplaced.[651]
14. The defendants also say that of the outstanding membership applications which were considered by the directors at their meeting on 29 June 2016, four applications were from persons who were already members of YAC; seven applications were duplicates; and two applicants were deceased.[652]
15. The defendants contend that of the 146 applications which were refused:

(a) 47 were refused because the directors were not satisfied that the applicant in each case was a descendant of a Yindjibarndi apical ancestor (including a number of members of the Todd family, whose claim to be Yindjibarndi people was advanced in the Yindjibarndi #1 claim, and disputed by the Applicant in that claim[653]);

(b) 66 were refused because the directors were not satisfied that the applicant in each case recognised him or herself as a Yindjibarndi person and the directors did not recognise the applicant in each case as a Yindjibarndi person;

(c) six were refused because the directors were not satisfied that the applicant in each case recognised him or herself as a Yindjibarndi person;

(d) four were refused because the directors were not satisfied that the applicant in each case had attained 18 years of age; and

(e) 23 were refused because the directors were not satisfied that the applicant in each case followed and upheld Birdarra Law[654] and would support and uphold YAC's objectives and policies.[655]

1. The defendants contend that on or about 22 July 2016, YAC wrote to all persons whose membership applications had been determined to advise them of the outcome of their application, including (if applicable) the reasons for refusal, and wrote to ORIC to report on YAC's compliance with the second compliance notice in relation to outstanding membership applications.[656] In relation to the persons whose applications were refused because the directors were not satisfied that they followed Birdarra Law and would support and uphold YAC's objectives and policies, 16 of them were advised that this was the reason, and in addition, that in reaching that conclusion, the directors had taken into account each applicant's involvement in the June 2015 ballot (to which I referred to at [186]).[657]
2. The defendants contend that on about 28 July 2016, Mr Armstrong, a delegate of the Registrar, wrote to YAC to advise that he was satisfied that YAC had satisfied the requirements of the second compliance notice, except for the requirement that YAC hold its next AGM by no later than 30 November 2016.[658]
3. The defendants deny that the directors of YAC acted in a biased fashion in accepting 25 applications and refusing 125 WMYAC applications, and deny that YAC engaged in oppressive conduct within the meaning of s 166-1(1) of the CATSI Act, on the grounds of bias or otherwise, in summary because:[659]

(a) the current directors were appointed by majority vote at a general meeting of YAC called and chaired by the Registrar on 19 April 2016;

(b) the comments and findings by Le Miere J in Sandy [No 2][660] were not made in relation to the currently composed board of directors;

(c) in determining the 184 membership applications, the directors admitted 25 members, refused 146 members, and the other applications were from existing members, were duplicates, or were from applicants who had passed away; and

(d) in refusing the 146 applications the directors took into account only the membership criteria and discretionary matters referable to YAC's objects.

1. The defendants contend that by the end of June 2016, they had complied with all of the requirements of the second compliance notice which had arisen at that date, and that Mr Armstrong's acknowledgment that that was the case meant that there was no oppression within the meaning of s 1661(1) of the CATSI Act or, alternatively, to the extent there was oppression, it is was not ongoing.[661]
2. Finally, the defendants contend that, having regard to the high number of membership applications determined by the YAC directors on 29 June 2016, YAC notified unsuccessful applicants of the directors' decision within a reasonable time.[662]
3. In response to the plaintiffs' allegations concerning membership generally, the defendants say that since the plaintiffs commenced this proceeding, YAC has 'determined approximately 663 membership applications' comprising:[663]

(a) 52 applications, received from WMYAC on about 17 June 2011, which were refused;

(b) 122 applications, received from WMYAC between 31 October 2013 and 4 August 2014, which were considered on about 9 May 2012, when YAC accepted 11 applications, deferred 75 applications, and did not need to deal with 20 applications from people who were already members or with a further 17 applications from persons whose membership was purportedly cancelled on 15 December 2010 but who remained members of YAC;

(c) 198 applications from WMYAC, received between 9 May 2012 and 31 October 2013, and a further 122 applications from WMYAC received between 31 October 2013 and 4 August 2014, all of which were dealt with in accordance with the membership process in the Settlement Deed, and as a result of which YAC accepted 233 applications, refused 47 applications, and deferred making a decision on 40 applications pending a decision by the Federal Court in the Yindjibarndi #1 claim;

(d) 50 applications, of which 46 were initially, and invalidly, accepted on 16 December 2015, and of which 45 were reconsidered by the directors on 29 June 2016; and

(e) 119 applications, comprising 33 applications received from the plaintiffs' solicitors in late May 2016 (which were part of the 44 included in the envelope which was misplaced) and 86 which YAC received from WMYAC in late May 2016, all of which were determined at the directors' meeting on 29 June 2016, and of which 25 were accepted and 146 were refused.

1. However, the defendants acknowledge that the 663 applications received and processed by YAC in fact involved a considerable overlap of applications, given the number of applications which were submitted more than once, or were necessary for the directors to reconsider.[664]

1. Following the publication of his reasons in Sandy [No 2], Le Miere J directed that a copy of those reasons be provided to the Registrar to enable him to consider whether to take action to deal with the position which YAC found itself in, namely that it had no validly appointed directors. Rather than appointing a special administrator, the Registrar determined instead to exercise his powers under the CATSI Act to amend YAC's Rule Book to replace the requirement for a 75% majority to pass resolutions at a general meeting with a requirement for a simple majority only, and then to call a general meeting of YAC's members to appoint directors of YAC.[665] Having regard to other concerns which had come to the Registrar's attention namely delays in the calling of AGMs and consideration of applications for membership the Registrar proposed that following the election of new directors for YAC, he would issue a compliance notice which required YAC to hold its AGM prior to the end of November 2016, and to consider and finalise all outstanding applications for membership of YAC by 30 June 2016.[666]
2. The Rule Book was amended, and directors of YAC were subsequently elected at a general meeting of YAC.
3. The directors met on 21 April 2016.[667] Membership of YAC was discussed. In view of the earlier position taken by various members of the Adams family to membership of YAC, the directors adopted the same approach to their memberships which had been adopted by the then directors on 16 December 2015. In so far as the membership applications awaiting determination were concerned, the directors decided not to make any decision about those at that stage. Having regard to the minutes of the directors' meeting, I find that that decision was made because the directors had been advised that the Registrar intended to issue a compliance notice which required them to determine policies and procedures in relation to membership applications, and to determine all outstanding membership applications by 30 June 2016. The directors agreed that they would not determine any membership applications prior to receiving that compliance notice, and prior to developing new policies and procedures concerning membership.[668]
4. On 5 May 2016, the Registrar advised YAC's directors that he proposed to issue a compliance notice under the CATSI Act and provided a draft copy of that notice for comment by the directors.[669] On 13 May 2016, Mr Davies of YAC responded to the Registrar on YAC's behalf. In that letter, Mr Davies set out the history of the membership dispute since 2011 and the way in which membership applications had been dealt with since that time. Mr Davies advised that the directors understood that there were, at that stage, 95 outstanding membership applications, comprising the 40 applications deferred for further consideration on 11 August 2014, the 51 applications considered at the invalid directors' meeting on 16 December 2015, and four other applications received since then.[670]
5. On 16 May 2016, the Registrar issued the second compliance notice to YAC pursuant to s 43920(1) of the CATSI Act. The second compliance notice required that the directors and YAC take certain action including the following:[671]
   1. By the close of business on Wednesday 1 June 2016, the corporation and the directors of the corporation must prepare draft policies and procedures for the corporation to hold its AGMs before 30 November in each year, unless an exemption or extension is approved by the Registrar pursuant to the CATSI Act ... .
   2. The corporation must hold its 2016 AGM by no later than 30 November 2016, unless an exemption or extension is approved by the Registrar pursuant to the CATSI Act ... .

1. By the close of business on Wednesday 1 June 2016, the corporation and the directors of the corporation must prepare draft policies and procedures that provides for all applications for membership to be considered and decided upon by the directors in a directors' meeting within a reasonable time after each application for membership is received.

The corporation and the directors of the corporation must forward a copy of the draft policies and procedures to the Registrar for review and approval by the close of business on Friday, 17 June 2016.

1. Before the close of business on Thursday, 30 June 2016, the corporation and the directors of the corporation must convene a directors' meeting or meetings to consider and decide upon all known application for membership submitted to the corporation before the close of business on Wednesday, 1 June 2016, that have not been previously accepted or rejected.
2. For the avoidance of any doubt,[672] I do not rely on the fact that the Registrar issued the second compliance notice as evidence of any oppressive conduct by YAC. However, the fact that the second compliance notice was issued is relevant to understanding and assessing the conduct of YAC in response to the notice. I have taken it into account for that purpose.
3. The YAC directors met again on 20 May 2016. They agreed to abide by the second compliance notice and to develop the necessary policies and procedures and submit them to ORIC in accordance with the notice.[673]

The directors' meeting of 9 June 2016 - adoption of policies concerning membership

1. The directors of YAC met on 9 June 2016.[674] On that occasion, they discussed policies and procedures concerning YAC's AGMs, and membership of YAC. In so far as membership of YAC was concerned, the directors adopted a draft membership application policy (membership policy), a draft policy concerning support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (UNDRIP policy),[675] a draft code of conduct to which all new YAC members would be required to commit, and a new membership application form. I will call these documents, collectively, the new policies. The directors proposed to refer the new policies to ORIC for approval, in compliance with the second compliance notice.

1. The draft membership policy began by noting that:[676]

The roles and responsibilities of YAC as trustee and agent include special duties owed to YAC's members and to all present and future members of the Yindjibarndi people including the duty to at all times act in their best interests in relation to any proposed developments in Yindjibarndi country and in relation to any benefits derived from developments agreements affecting Yindjibarndi country. ...

Recognising such obligations, as well as certain issues that have risen in the community of the Yindjibarndi people and the YAC membership, since 2011, regarding how YAC ought properly and fairly consider and decide upon applications for memberships; and recognising the [second compliance notice], this document sets out the policy and procedures for considering any pending and/or future applications for membership of YAC, and deciding upon those applications, in a timely and fair manner.

1. The draft membership policy expressly referred to s 14410 of the CATSI Act, and noted that an application for membership could be refused, even if an applicant met the eligibility criteria in YAC's Rule Book, but that in such a case, written notice of the refusal was to be given to the person who made the application, together with reasons for the refusal of the application.[677]
2. The draft membership policy also contemplated that the determination of eligibility required the assistance of Yindjibarndi Elders:[678]

The determination of eligibility based on the criteria and r 3 of the constitution, which relate to the body of traditional and to culture, requires involvement and participation by members of the Yindjibarndi people who are senior traditional law men to assist the board in determining whether any particular applicant for membership does hold in common the body of traditional law and culture of the Yindjibarndi people.

1. The draft membership policy then set out a process for consideration of membership applications. That policy contained, amongst other things, the following elements:[679]
   1. An application for membership must be submitted to YAC in the form of Schedule 1 to the YAC Constitution ... . The Applicant may attach supporting information to the application.
   2. Upon receipt, an application ... must be date-stamped ... .
   3. In addition to the criteria set out at rule 3 of the corporation's constitution, the YAC directors will consider each application for membership on the basis of information available to YAC with a view as to whether or not the Applicant:[680]

3.1 has agreed to abide by all conditions set out on the corporation's membership application form;

3.2 is descended from one of the persons set out in Annexure A;

3.3 is ascertained by the current YAC directors who agree by consensus that they identify the Applicant as an Yindjibarndi person;

3.4 will act in the best interests of the corporation.

1. If the YAC directors are unable to form an opinion based upon 3 above, or wish to authenticate the information contained in the application form or any supporting information provided with the application, then the YAC directors will either:

4.1 request the applicant in writing to provide supporting information within a period of one calendar month from the date of the request; or

4.2 refer the application for membership to the Senior Birdarra Law Carriers Committee for their recommendation.

1. The YAC Directors will consider any applications for membership ... within two months of the date stamped on the application form.

1. The directors may by resolution refuse an application for membership if they are not satisfied that the Applicant meets the conditions set out at 3 above.
2. The directors may by resolution accept an application for membership if they are satisfied that the Applicant meets all of the criteria in 3 above.
3. As outlined at 4.2 above, if the directors are uncertain about whether an applicant hold in common the body of traditional law and culture of the Yindjibarndi people, or consider that the Senior Birdarra Law Carriers Committee should be consulted with reference to a membership application, in the exercise of their discretion, then the directors shall by resolution refer the application to a committee of Senior Birdarra Law Carriers Committee, along with a written request from the chairperson that the Senior Birdarra Law Carriers Committee consider the application at their next meeting. In such circumstances, the corporation must advise the Applicant accordingly, in writing.
4. The Senior Birdarra Law Carriers Committee shall be comprised of such members of the Yindjibarndi people as are members of YAC, who the directors regard as being the most qualified and respected holders and custodians of the traditional law and culture of the Yindjibarndi people.

1. The chairperson or their delegate must arrange to meet the Senior Birdarra Law Carriers Committee to discuss any membership application referred to the Senior Birdarra Law Carriers Committee by the board and shall ask for Senior Birdarra Law Carriers Committee to ask the chairperson or their delegate, within one month, whether in their opinion:

12.1 any such applicant is a Yindjibarndi person who holds in common the body of traditional law and culture of the Yindjibarndi people;

12.2 any application should be accepted or refused on any other ground;

12.3 the Senior Birdarra Law Carriers Committee has been unable to reach agreement about an application.

1. By no later than one week after the Senior Birdarra Law Carriers Committee meeting, the chairperson, or their delegate, ... shall make a written record of the recommendation given by the Senior Birdarra Law Carriers Committee in respect of each membership application ... . The written record of the Senior Birdarra Law Carriers Committee must be tabled ... and the directors shall by resolution accept or refuse each application.
2. Following the final determination of the board, in respect of any application, the corporation shall advise the applicant of the board's decision; and, if the application was refused, the reasons for refusing the application.

1. The directors also adopted the draft UNDRIP policy.[681] The draft UNDRIP policy indicated that 'in carrying out its duties as trustee and agent for the Yindjibarndi people, [YAC] shall at all times, and to the greatest extent possible, observe, uphold and advance the minimum standards of the [UNDRIP] including' the various rights summarised in the draft UNDRIP policy. Those rights included the rights of selfdetermination of the Yindjibarndi people; the right of the Yindjibarndi people to freely pursue their economic, social and cultural development; the right of the Yindjibarndi people to just, fair and equitable compensation for any part of the Yindjibarndi country which has been taken, occupied, used or damaged without their free, prior and informed consent; and the right of the Yindjibarndi people to maintain and strengthen their distinctive spiritual relationship with Yindjibarndi country and to practice, develop and teach their spiritual and religious traditions, customs and ceremonies.[682]
2. The draft UNDRIP policy also provided:[683]

A threshold issue for YAC, with respect to all future development proposals affecting Yindjibarndi Country, shall be the willingness of the proponent to both acknowledge the above minimum standards, and to commit to negotiating in good faith (in the sense required by Article 46 of the [UNDRIP]_ to achieve an agreement which honours and respects those standards.

1. The directors also agreed to adopt the draft code of conduct to which all membership applicants would be required to commit. The draft code of conduct required the applicant to make a pledge in the following terms:[684]

As a member of the Yindjibarndi Aboriginal Corporation (YAC) I endorse, agree to, and will act according to the following code of conduct. Accordingly, I pledge my allegiance to the following statement:

1. I will unconditionally uphold and defend the Yindjibarndi people's native title rights and interests in the areas recognised and mapped [in the Daniel and Moses decision] and the Yindjibarndi #1 claim ... .
2. At all times, I will act in the best interests of the Yindjibarndi people in relation to any proposed developments in Yindjibarndi country and in relation to any benefits derived from development agreements affecting Yindjibarndi country.
3. I will always work to positively enhance and add value to the social, cultural, religious, environmental, economic and political condition and circumstances of the Yindjibarndi people.
4. I will always put the Yindjibarndi people's interests ahead of my personal interests.
5. I will always respect the decisions made by the YAC board of directors.
6. I will always respect the decisions made by my elders in the Senior Birdarra Law Carriers Committee.
7. I will always abide by and respect YindjibarndiBirdarra law and Galharra relationship.
8. I will not be a member of any other prescribed body corporate (PBC) or native title groups.
9. I agree to, and will abide by, the YAC policy in relation to the [UNDRIP].

1. The directors proposed that a new membership application form be included in YAC's Rule Book, and that that form be completed by applicants for membership.[685] That form required that applicants answer the following questions (in addition to providing their name, address and date of birth):

Do you agree to abide by the YAC code of conduct?

Yes or No

Are you a member of another Prescribed Body Corporate (PBC)?

Yes or No

Which Yindjibarndi Apical Ancestor/s are you connected to and how?

Yes or No

Please fill in the Yindjibarndi Connection and Family Form

Yes or No

Will you defend the rights and interests of the Yindjibarndi people?

Yes or No

Do you support YAC's policy in relation to the [UNDRIP]

Yes or No

1. On 17 June 2016, Mr Davies, on behalf of YAC, forwarded the new policies to ORIC, in compliance with the second compliance notice.[686] Mr Davies advised that YAC's directors proposed that the membership form which was included in YAC's Rule Book be replaced with the amended application form, and if that proposal was approved, then the directors proposed an alternative process to that specified in the second compliance notice. That alternative process was that instead of dealing with all membership applications by 30 June 2016 (as required by the second compliance notice), YAC would write to all applicants requesting that they submit a new membership application in the amended form; that the board would then assess all applications by reference to the draft policies; and that the board would deal with the membership applications within sufficient time to enable any applicants admitted to membership to attend the 2016 AGM (which the second compliance notice required should be held before 30 November 2016).[687]
2. On 22 June 2016, Mr Armstrong, a delegate of the Registrar, wrote to YAC to advise that he had reviewed the draft membership policy, that the proposed period of two months within which the directors would consider and deal with applications for membership was a reasonable period, and that the amended application form 'appear[ed] to be a suitable form to replace the current application for membership form in the corporation's rule book'.[688] However, Mr Armstrong advised that it was not possible for the Registrar to amend YAC's Rule Rook to include the amended membership application form, and that this would need to be approved by the members in accordance with the CATSI Act and rule 22 of YAC's Rule Book.[689] Finally, Mr Armstrong was at pains to remind YAC that it was necessary for YAC to convene a directors' meeting prior to 30 June 2016 to consider and decided upon all known applications for membership which had been submitted to YAC before 1 June 2016 but which had not been previously accepted or rejected.[690]
3. What was apparent from that letter was that the proposal contained in Mr Davies' letter of 17 June 2016 namely that membership applicants be required to submit an amended application form, which would then be considered in accordance with the proposed membership policy, but not before 30 June 2016 had not been approved by the Registrar. It was apparent that YAC's directors understood that they were obliged to determine all extant membership applications within the time required in the second compliance notice, namely by 30 June 2016, because they held a directors' meeting on 29 June 2016 to consider the membership applications then awaiting determination.

Preparation of the new policies adopted by the directors on 9 June 2016

1. The plaintiffs' case was that the new policies which were adopted by the directors in draft form on 9 June 2016 were applied by the directors in determining membership applications on 29 June 2016, and that the very purpose behind the adoption of the new policies was to ensure that WMYAC members could be refused membership of YAC. Consequently, YAC's directors, Mr Woodley and Mr Irving were crossexamined as to how the new policies came into existence, and the purpose behind their adoption.
2. The evidence established that the directors of YAC, and YAC's CEO, Mr Woodley, had input into the general thrust of the new policies, with advice from YAC's lawyer, Mr Irving. Mr Mack's evidence was that the membership policy was decided on by 'all directors'.[691] Ms Cheedy also said that it was the 'the whole of the directors'[692] who decided on the policies. Her evidence was that 'all the directors ... discussed and decided the policy for considering and deciding pending membership applications ... with advice from George Irving, the YAC lawyer'[693] and that it was the directors 'along with our legal team, and our legal inhouse counsel, we sort of come up with the draft.'[694] She also explained that:[695]

We go to the board and we say we need to do a policy for this and do a policy for this. And then we all sit down and, along with advice from our legal counsel, and Michael [Woodley], we discuss on how things should be written. ... Like I say, everybody brings something to the table and say, well, maybe we should do this.

1. The minutes of the directors' meetings also provide some support for this conclusion. The minutes of the meeting of the directors held on 20 May 2016, for example, indicate that 'the directors discussed the idea of setting up a Yindjibarndi senior law man committee to assist the board with assessing YAC membership applications'.[696] That proposal was included within the draft membership policy which was approved by the board on 9 June 2016.
2. The evidence suggested that Mr Irving prepared drafts of the new policies which were discussed by the directors, including as to whether any amendments were required. Mr Mack said that Mr Irving attended the directors' meeting with those draft policies.[697] Mr Irving gave evidence that when the membership policy was discussed at the directors' meeting on 9 June 2016, 'a couple of amendments' were discussed.[698] One such amendment was to include a reference to Birdarra Law, and to the UNDRIP, in the list of the sources of YAC's duties to its members. Mr Irving's evidence was that that amendment was made after discussion with the directors.[699] Mr Irving made these amendments to the draft policies, but only after Mr Davies had forwarded the drafts to ORIC.[700]
3. It was clear that it was Mr Irving who was responsible for the detail in the draft policies which were submitted to the board for its approval. Ms Cheedy acknowledged that at its meeting on 9 June 2016, the board reviewed draft policies which were put before it for its consideration.[701]
4. That it was Mr Irving who was responsible for the detail of the new policies was particularly clear in relation to the formulation of YAC's draft UNDRIP policy. There was some evidence to suggest that the adoption by YAC of the principles in the UNDRIP had been discussed on occasion in the past. Ms Cheedy's evidence was that the board had been discussing the adoption of the UNDRIP as a policy for several years.[702] Mr Woodley's evidence was that YAC had adopted the UNDRIP as a policy in 2008.[703] Mr Irving also said that the UNDRIP policy had been adopted by YAC for some time prior to June 2016.[704] He claimed that he had drafted a policy document on the UNDRIP as early as June 2012, and referred to it in correspondence with the National Native Title Tribunal.[705] He also recalled that copies of that policy had been used at YAC's offices in Roebourne in 2012.[706] However, Mr Irving accepted that he could not identify any resolution by YAC in 2012 which formally adopted such a policy.[707] Mr Irving also recalled that the UNDRIP had been referred to as early as 2009 or 2010, in the context of YAC's negotiations with Rio Tinto in relation to the Participation Agreement.[708] However, the reference to the UNDRIP in the latter context concerned the development of institutions for the governance of YAC which were framed by the principles in the UNDRIP, rather than the adoption of a policy of support for the principles in the UNDRIP as a criterion for eligibility for membership of YAC. There was no evidence to suggest that a pledge of support for the UNDRIP had been suggested as a membership criterion for YAC at any stage prior to June 2016.
5. It was clear that Mr Irving was the primary proponent of the inclusion of the draft UNDRIP policy as a criterion for membership of YAC. Although Ms Cheedy initially claimed that the draft UNDRIP policy had been agreed to following a discussion of the directors,[709] she eventually conceded that the directors did not assist in drafting the UNDRIP policy, and that they simply reviewed it and adopted it (as the minutes of the directors' meeting on 9 June 2016 suggested).[710] Mr Mack's evidence was that he could not recall having seen the UNDRIP before the meeting on 9 June 2016, but that Mr Irving told the directors about the UNDRIP, and that he had always mentioned and reminded the directors about it.[711] Mr Mack acknowledged that the UNDRIP was not before the directors on 9 June 2016, and said that the board were relying on what they were told by Mr Irving about the UNDRIP when considering the content of the draft UNDRIP policy.[712]
6. Mr Irving's evidence was that he drafted the draft UNDRIP policy following a discussion by telephone with Mr Woodley, in which Mr Mack and a couple of other directors, including possibly Middleton Cheedy and Stanley Warrie, also participated. He recalled that there was a discussion about the policy to be used for the purpose of determining outstanding membership applications.[713] Mr Irving's evidence was that he sent the draft UNDRIP policy by email to YAC's CEO, Mr Woodley, and Mr Philip Davies, on 31 May 2016.[714] It appears that that draft was then considered by the directors on 9 June 2016. However, the version of the draft UNDRIP policy which Mr Davies sent to ORIC on 17 June 2016 was an amended version of that earlier draft. Mr Irving's evidence was that he had made amendments to the draft after it had been considered by the directors, to reflect their comments.[715]

What was the objective behind the adoption of the new policies?

1. It was put to the defendants' witnesses in cross examination that the new policies were adopted in order to provide a basis for refusing membership of YAC to members and supporters of WMYAC. Mr Mack denied that the terms of the draft code of conduct were designed to stop WMYAC members joining YAC,[716] or to cause applicants for membership to have to resign as members of WMYAC if they wanted to become members of YAC.[717] He also denied that the pledge, in the code of conduct, that an applicant would not be a member of any other PBC or native title group was directed at the exclusion of WMYAC members, because WMYAC was not a PBC or native title corporation.[718] Mr Mack claimed that that pledge referred to 'these other native title groups [such as] Ngarluma ..., Banyjima, Innawonga and Guruma'.[719] Mr Irving also denied that he had prepared the new policies to enable the board to refuse membership of YAC to any applicant who support WMYAC.[720]
2. I am unable to accept that those denials reflect the true position. In my view, the evidence supports the conclusion, and I find, that the new policies were adopted in order to provide a basis for YAC's directors to refuse an application for membership made by any person who was a member or supporter of WMYAC, or any person who was thought to take a different view from that of the directors of YAC in relation to entry into the FMG Agreement. I have reached that conclusion for three reasons.
3. First, the new policies represented a significant departure from the approach which previously appears to have been taken to membership eligibility. By way of example, support for the UNDRIP had never been a membership criterion. In addition, in so far as the proposed new membership form required applicants to indicate whether they were members of another native title claim group, that consideration had never been expressly taken into account before. Ms Cheedy acknowledged that in September 2014, when she became a board member of YAC, YAC's policy was that anyone who had a Yindjibarndi ancestor could apply to be a member of YAC and would be accepted.[721] She recalled that in 2014, 21 people who were listed as members of the Ngarluma Aboriginal Corporation were admitted to membership of YAC on the basis that they had a Yindjibarndi ancestor.[722] It is difficult to see what relevance a question about membership of another ATSI corporation could have had to a person's application for membership of YAC, other than as a disentitling criterion.
4. Furthermore, the directors who gave evidence did not appear to understand what some of the new policies meant, nor were they able to explain what the inclusion of the new policies in YAC's membership process added to that process. Mr Mack was unable to explain what the UNDRIP policy meant. The evidence of Mr Vincent Adams was that he had no idea what the UNDRIP was, and he did not know how the Yindjibarndi community had been canvassed to adopt it as a policy.[723] Similarly, the evidence of Mr John Sandy was that he was not aware that the UNDRIP policy had been put out for comment within the Yindjibarndi community at any stage, or discussed at any meeting of YAC.[724]
5. Mr Mack agreed that it was not fair on an applicant for membership to be asked whether they supported the UNDRIP when he, as a director of YAC, was unable to tell the Court what he understood that policy to mean.[725] Mr Mack also agreed that it was not fair to ask an applicant for membership to abide by the code of conduct, and by that, to pledge their allegiance to the statement that they would agree to and abide by the UNDRIP policy.[726]
6. Ms Cheedy's evidence was that she wanted to make sure that YAC's policy on membership was upheld because 'upholding the policy includes making sure that an applicant for membership protects and advances Yindjibarndi traditional law, culture and customs; and supports Yindjibarndi people having access to minimum standards of living for survival, dignity and wellbeing'.[727] How that would be the case was not clear on the face of the new policies themselves.
7. Ms Cheedy was asked why it was that the board had decided that support for the UNDRIP should become part of the membership criteria for YAC. At that point in the crossexamination, Ms Cheedy became rather emotional,[728] and the Court adjourned briefly to enable her to regain her composure.[729] Ms Cheedy later explained why she had become upset in the discussion of the draft UNDRIP policy. Her explanation was that 'I get a bit passionate'[730] and that:[731]

All people that I know that have passed on and they have been forever have been forever since my parents you know, growing up in the stations, we never had rights from the beginning and at least at least this thing can give us some justice, sort of thing, that we are able we can be freely to practise what we like going to a church, we can do what we want to do not want to do, but be able to be free and do things without having a chained hand, sort of thing. That is that is that is my belief. I've always thought about my old people. That makes me upset and I'm sorry for being upset.

1. She later confirmed that the achievement of the aims of the UNDRIP were important to her from the perspective of Aboriginal people being able to live and practise their culture.[732] Ms Cheedy also said that Mr Irving had explained to YAC's directors that the UNDRIP was important to assist the Yindjibarndi #1 claim.[733]
2. However, in his evidence, Mr Irving claimed that while the UNDRIP was relevant to the Yindjibarndi #1 claim, it was not integral to that claim. (However, Mr Irving ultimately accepted that the UNDRIP was not relied upon at all in the Yindjibarndi #1 claim proceedings in the Federal Court because it was not of any relevance to that determination.[734]) As I understood Mr Irving's evidence, it was that the significance of the UNDRIP lay in its relevance to an argument, advanced in proceedings in the National Native Title Tribunal in 2011, in relation to whether future acts (that is, mining) should be permitted in the area of the Yindjibarndi #1 claim. The UNDRIP was relied upon to support the claim by the Yindjibarndi people that mining leases should not be granted to FMG, because mining activities would interfere with the right of the Yindjibarndi people to carry out religious ceremonies which were not connected to particular religious sites,[735] and thus with the religious freedom of the Yindjibarndi people.[736] However, Mr Irving acknowledged that that argument had been pursued in the litigation before the Tribunal, and on appeal to the Federal Court, had been resolved in that litigation.[737]
3. Mr Woodley's evidence was that the UNDRIP was adopted as a policy in 2008 because the directors of YAC thought it would be 'best practice, in terms of dealing with mining companies and also governments, that we have the [UNDRIP] ... enshrined in our policies moving forward'.[738] That hardly explained, however, why it was necessary to include support for the UNDRIP as a criterion for membership of YAC.
4. Secondly, there was no suggestion that YAC intended to apply the criteria in the new policies to any existing members of YAC. For example, Mr Mack was asked about the pledge that membership applicants would be asked to make, to the effect that they would not be a member of any other PBC or native title group. Mr Mack agreed that that policy did not apply to existing members of YAC.[739] Similarly, Ms Cheedy confirmed that there was no intention to cancel the membership of any existing member of YAC who no longer complied with the criteria for membership under the new policies.[740] Yet there was evidence that existing members of YAC had been accepted into YAC 'notwithstanding they identify with a language group other than Yindjibarndi'.[741] In his affidavit, Mr Sandy referred to a number of persons who had been accepted for YAC membership who he knew to identify themselves as Ngarluma people.[742] That that was the case tends to support the conclusion that the new policies were adopted solely to screen out persons whom the directors did not wish to admit to membership, rather than to reflect criteria genuinely thought to bear upon a person's eligibility to be a member of YAC.
5. Thirdly, and most significantly, the directors admitted that the new policies were adopted in order to provide a basis to refuse YAC membership to WMYAC members and supporters. By way of example, Mr Mack was asked about his understanding of the purpose behind asking applicants to promise that they would respect the decisions of the YAC board. Mr Mack denied that joining WMYAC, or being a member of WMYAC, would signal that that person did not respect the decisions of YAC's board.[743] Nor did he regard disagreeing with the decision of YAC's board as indicating a lack of respect for the board's decisions.[744] However, Mr Mack was of the view that 'going against our decision of ... what we're trying to do' amounted to not respecting the decisions made by YAC's board.[745] He said that the pledge by an applicant that he or she would always respect the decisions made by the YAC board of directors was directed to protecting YAC from attacks by FMG and WMYAC.[746]
6. By way of example of what he meant, Mr Mack referred to the conduct of the plaintiffs in bringing actions against the directors in the present action.[747] It was Mr Mack's view that a WMYAC member who acted with the backing or support of FMG would be acting in a manner contrary to that pledge of allegiance.[748]
7. It was apparent that Ms Cheedy saw the pledge to support YAC's policies as directed to ensuring that only those who agreed with the views of the directors would be eligible for membership. Her evidence was:[749]

I understand it to be do they want to be able to I don't know move forward not move forward. ... [A]re they prepared to - is this person prepared to - to be on the same page as us sort of thing, or do they want to move forward ... .

1. The next exchange in Ms Cheedy's cross-examination was particularly revealing:[750]

So anyone who supported Wirlumurra would not comply, as you call it, with these policies that you're adopting? Well, you are, these policies that we we that we've come up with was in relation to a and ILUA that was signed back in 2011 by Wirlumurra and that ILUA had given away the whole of Yindjibarndi country. They had taken away the voice of the Yindjibarndi person, they have taken away the Yindjibarndi rights, they've taken away the Yindjibarndi culture that ILUA. So we have been trying to move forward and be able to build a relationship with mining companies and to be able to get members to support YAC and to be able to move forward. At the back of our minds, we've got this ILUA that's lingering over our head. If it it has taken away it sort of killed me. If if that ILUA goes ahead, I could be nobody. I'm Yindjibarndi person first and if that ILUA had were not what if that ILUA goes ahead, I will be just a drop in the ocean, and nobody.

So you didn't want anyone who supported that to become a member? I could say that. Yes.

These policies ... and the code of conduct where they pledge they were required to pledge to always respect the decisions made by the YAC board of directors ... they were designed to ensure somebody who supported Wirlumurra could not become a member? Yes (indistinct) yes.

1. Mr Irving's evidence as to his understanding of why the draft UNDRIP policy was adopted as a criterion for membership of YAC was also revealing. Mr Irving's evidence was that the directors with whom he spoke by telephone[751]

were very concerned to ensure that there was some standard put into the policy on membership applications that would require people to look after Yindjibarndi country and the continuation of Yindjibarndi law and custom. ... We just had a discussion about how they [could] ensure that ... people who joined the corporation would uphold the standards that the corporation had been following.

1. In my view, it is apparent that the directors of YAC were of the view that entry into the FMG Agreement was not consistent with those 'standards'. Viewed in that light, the requirement that an applicant for membership pledge their support for the UNDRIP is consistent with ensuring that applicants did not take a view different from that of the directors. Further, Mr Irving's view was that aspects of the draft UNDRIP policy may be relevant to the future acts being done on Yindjibarndi country and possibly to a future compensation claim.[752] From that perspective, an applicant's support for the FMG Agreement may be seen as inconsistent with support for the UNDRIP.

The directors' meeting of 29 June 2016 to consider membership applications

1. In this section of the reasons, I set out my findings in relation to the following:

(i) The decisions in relation to membership made at the meeting;

(ii) How the directors approached the task of determining the membership applications;

(iii) The reasons given to the applicants whose membership applications were rejected; and

(iv) The Registrar's conclusion in relation to YAC's compliance with the second compliance notice.

(i) The decisions in relation to membership made at the meeting

1. The evidence established that the YAC directors met on 29 June 2016. They considered 184 YAC membership applications which had been received prior to 1 June 2016. Of those 184 applications, the directors noted that seven applications were duplicates, two applicants were deceased and four applicants were already YAC members. The YAC directors considered the remaining 171 applications, and accepted 25 applications and rejected 146 applications for membership.[753] A table of those persons who had applied for membership and the outcome of each application was attached to the minutes of the meeting.[754] There is no dispute between the parties as to whose applications were accepted and whose applications were rejected. I find that the applicants who were refused membership on 29 June 2016 are those who are noted in that table as having had their application rejected.
2. The minutes of the meeting also recorded that one further membership application had been received since 1 June 2016 and the directors resolved to accept that application for membership.[755]

(ii) How the directors approached the task of determining the membership applications

1. The evidence established that in determining membership applications at the meeting on 29 June 2016, the directors adopted the following process. The evidence of Ms Cheedy, Mr Mack and Mr Irving, which was consistent with the minutes of the meeting,[756] established that at the start of the meeting Mr Irving 'read out the policy that the directors had approved for determining the outstanding applications and asked if there were any questions'.[757] He and Mr Davies then took turns in calling out the names of each applicant. In applicable cases, the directors went through the history of those applications previously considered by the Elders' Subcommittee. In addition, Mr Davies had volumes of Yindjibarndi family connection forms, which showed genealogical links to the Yindjibarndi apical ancestors, to which the directors could have regard if necessary. (Mr Irving's recollection, however, was that in most cases the female directors knew each applicant's ancestral links without having to resort to those forms,[758] and Ms Cheedy confirmed that she and the other directors were knowledgeable about Yindjibarndi families.[759])
2. Mr Irving's evidence was that:[760]

Once an applicant's links with Yindjibarndi apical ancestors was agreed upon, the directors then went through each of the other policy considerations. I recall there was in some cases robust conversation about whether particular applicants identified themselves as Yindjibarndi or whether they identified with some other group by following a nonYindjibarndi ancestral link; and likewise there was some robust conversation about whether the directors identified a couple of applicants as Yindjibarndi; however, the bulk of such discussions were conducted in Yindjibarndi language. The same thing occurred in respect of some of the other policy considerations such as who had actively worked to support FMG and WMYAC during the authorisation meeting that was the foundation for the interlocutory application made by Rodney Adams et al, which was dismissed by Rares J; and who was likely to uphold and support YAC's policies.

1. Mr Mack's evidence was that the directors:[761]

went through each application. For each application we looked at the application form and family connection form. We talked about each one, the rules and the policy, and made a decision for each one together. We followed the rules and policy. ...

It took most of the day to go through all of the applications because there were so many of them.

1. Once a decision was reached for each application, the directors' decision was recorded on a separate spreadsheet, and in those cases where the application was refused, a note was made of the particular policy consideration which had been applied to support the refusal of the application.[762]
2. In reaching a view on each application, the directors relied on the information put before the board in each application form, and any information submitted with it, plus their own knowledge of the person.[763]
3. The evidence leaves no doubt that in considering each membership application the directors applied a membership policy. However, it is also clear, and I find, that the policy which was applied was not in the same terms as the new policies adopted by the directors on 9 June 2016, and submitted for the Registrar's approval on 17 June 2016.
4. Having regard to the minutes of the directors' meeting of 29 June 2016, and to the evidence of Mr Mack and Mr Irving (to which I will refer in more detail in a moment), I find that the policy which was used by the directors in considering the membership applications on 29 June 2016 was a policy set out in a document entitled 'YAC membership application policy for Pending Membership Applications' (Pending Applications Policy). Mr Mack confirmed that that was the case.[764]
5. A copy of the Pending Applications Policy was attached to the minutes of the meeting held on 29 June 2016, and set out within the body of the minutes also.[765]
6. The Pending Applications Policy was in similar, but not identical, terms to the draft membership policy approved by the directors on 9 June 2016 and submitted to ORIC on 17 June 2016. It purported to set out the policy and procedures for considering all pending membership applications which had been received prior to 1 June 2016, and which were required to be determined by 30 June 2016 in accordance with the second compliance notice. The Pending Applications Policy set out the following process for dealing with those applications:

Process for Considering and Deciding upon Pending Membership Applications

1. The YAC Directors will meet to consider and decide upon all Pending Membership Applications prior to close of business on 30 June 2016.
2. The YAC Directors will decide upon each Pending Membership Application on the basis of information and knowledge available to the directors at the time of their meeting, which is relevant to the following considerations:

2.1 Is the applicant descended from one of the apical ancestors that were identified in the Daniel hearing as the 'Yindjibarndi Apical Ancestors', a list of whom is attached as Annexure A?

2.2 Is the applicant at least 18 years old?

2.3 Apart from the membership application form, has the applicant recognised himself as Yindjibarndi?

2.4 Is the applicant recognised by the Directors as being Yindjibarndi?

2.5 Does the applicant follow and uphold Birdarra Law, including Galharra and Nyinyadt.

2.6 Is the applicant a person who, in the Directors' opinion, will support and uphold YAC's objectives and policies; in particular, to:

2.1.1 protect, preserve and advance the traditions, laws, language, culture and customs of the Yindjibarndi People;

2.1.2 maintain, protect, promote and support the culture, native title traditions and customs, economic development, interests and social progress of the Yindjibarndi People, and,

2.1.3 uphold and advance the minimum standards for the survival, dignity and well-being of all present and future members of the Yindjibarndi People as set out in the [UNDRIP] and formally adopted by YAC in YAC's [UNDRIP policy] dated 9 June 2016.

1. The directors may by resolution refuse a Pending Membership Application if they are not satisfied that the Applicant fulfils each of the requirements set out in paragraph 2 above.
2. The directors may by resolution accept a Pending Membership Application if they are satisfied that the Applicant fulfils each of the requirements set out in paragraph 2 above.
3. The directors may by resolution refuse a Pending Membership Application if they are uncertain about whether the Applicant fulfils each of the requirements set out in paragraph 2 above.
4. The corporation shall, by no later than close of business on 1 July 2016 give written notice to each of the Pending Membership Applicants, advising them of the Board's decision, and, if the application was refused, the reasons for it.
5. The corporation shall, by no later than close of business on 14 July 2016 enter the details of each successful applicant into YAC's Membership Register.
6. The corporation shall, by no later than close of business on Friday 22 July 2016, provide to the Registrar:

8.1 a copy of the minutes of the directors' meeting which considered and decided upon the Pending Membership Applications; and

8.2 written confirmation that:

8.2.1 all known Pending Membership Applications have been considered and decided upon;

8.2.2 each of the Pending Membership Applicants has been given written notice of the outcome of their application and, if their application was refused, the reasons for it;

8.2.3 the details of each successful applicant have been entered into YAC's Register of Members.

1. As I have said, the Pending Applications Policy was not in precisely the same terms as the new policies adopted on 9 June 2016, and so the process envisaged in the new policies was not precisely that which was followed on 29 June 2016. By way of example, those whose applications were considered had not had to comply with the requirements of the new policies in submitting their application (because their applications were submitted prior to the adoption of the new policies). Further, the Pending Applications Policy did not require that in those cases where there was uncertainty as to whether the applicant met the eligibility criteria for membership, the applications should be considered by a 'Senior Birdarra Law Carriers Committee'. Mr Mack's evidence was that the directors were going to 'set up two separate senior lawmen to look at it', but the board did not do so because they did not think they had the time in order to process the membership applications before June 2016.[766] Mr Irving's evidence was to similar effect.[767] That evidence was consistent with Mr Davies' proposal to ORIC on 17 June 2016 for more time in order to apply the new policies to determine the applications which had not been accepted by the Registrar, meaning that the directors remained obliged to make a decision in respect of all of the membership applications by 30 June 2016.
2. Mr Irving was asked why the new policies sent to ORIC on 17 June 2016 included a reference to the Senior Birdarra Law Carriers Committee when the directors were concerned that there would not be time to involve that Committee in resolving applications before 30 June 2016. Mr Irving's evidence was that he considered that there were two quite different aspects of compliance with the second compliance notice, in so far as it concerned membership. The first was that all outstanding membership applications had to be dealt with by 30 June 2016. The second was the development of a membership policy. Mr Irving's understanding was that the Registrar did not require that the outstanding membership applications, which had to be dealt with by 30 June 2016, be resolved in accordance with the new policies. His view was that the new policies would be applied to all future applications for membership.[768] I accept that explanation.
3. That explanation is also consistent with Mr Mack's evidence. Mr Mack confirmed that the current membership application form[769] was not the membership application form annexed to YAC's Rule Book.[770] But nor was YAC using the membership application form submitted to ORIC as part of the new policies, as that was a draft document only.[771] However, he confirmed that YAC was receiving the family connections form in order to identify the family history of membership applicants.[772] That appears to have been because YAC's members had not yet passed a resolution to amend YAC's Rule Book, in order to substitute the draft membership form for that previously included in the Rule Book.[773]
4. It was not entirely clear from the evidence, however, when and how the directors determined to adopt the Pending Applications Policy for the purpose of resolving membership applications in accordance with the second compliance notice. Be that as it may, I find that the limited time between YAC's receipt of Mr Armstrong's letter of 22 June 2016, and YAC's deadline to deal with all outstanding membership applications, explains why the directors adopted the Pending Applications Policy to deal with those applications. That, to my mind, explains why the Pending Applications Policy was in a form which was not identical to the new policies, but reflected a number of the themes in the new policies, and why the Pending Applications Policy provided that the directors would reject any application about which there was uncertainty as to whether the applicant met the criteria for membership of YAC.
5. As I have said, the Pending Applications Policy reflected a number of the themes contained in the new policies, and especially those underlying the draft code of conduct, which included a requirement to abide by Birdarra Law and Galharra, and to abide by the UNDRIP policy. It is also apparent from the reasons given by the directors for refusing membership to applicants on 29 June 2016 (to which I refer at [576] below) that the directors drew on the criteria in the draft code of conduct when they refused those applications.
6. In my view, the short time frame between the directors' adoption of the new policies, their receipt of ORIC's response of 22 June 2016 and their meeting on 29 June 2016, and the consistent themes between the Pending Applications Policy and key elements of the new policies, including those in the draft code of conduct to which I have referred, support the conclusion, and I find, that in adopting and applying the Pending Applications Policy the directors' objective was the same as it had been in adopting the new policies, namely to provide a basis for them to refuse an application for membership made by any person who was a member or supporter of WMYAC or who was thought to take a different view from the directors of YAC in relation to entry into the FMG Agreement.

(iii) The reasons given to the applicants whose membership applications were rejected

1. The table attached to the minutes of the directors' meeting on 29 June 2016 contains a list of each member, and notes as to whether the directors were satisfied that the member met each of the criteria referred to in paragraphs 2.1 2.6.3 of the Pending Applications Policy. I find that those applications which were refused were refused on the basis that the directors were not satisfied that the applicant met the individual criteria, for which the applicant was noted as 'NS' (which I infer means 'Not Satisfied') or 'N' (which I infer means 'No') in that table.
2. That table also indicates the source of the membership applications that is, whether they were submitted via WMYAC or its solicitors Integra Legal, or whether the application was submitted to YAC directly by the applicant. Of the 146 applications which were rejected, that table indicates, and I find, that 112 of those were applications submitted through WMYAC or Integra Legal. Of the 25 applications which were accepted, that table indicates, and I find, that only 2 of those accepted applications were submitted through WMYAC or Integra Legal. Accordingly, although it is not the case that all applications submitted by applicants associated with WMYAC were rejected, a very high proportion of those applicants whose applications were associated with WMYAC were rejected for membership.
3. After the meeting, each applicant whose application was rejected was sent a letter which explained the reason for that rejection.[774] Copies of that correspondence were in evidence, and indicated that each application was rejected for one or more of the following reasons:[775]
   • The directors were not satisfied that the applicant was at least 18 years of age, as required under rule 3.1 of YAC's Rule Book. (Each of these applicants was advised that they were entitled to re-apply in the future, and to provide proof of their age with their application.)
   • The directors were not satisfied that the applicant was a Yindjibarndi person in view of the absence of any evidence that the applicant was descended from one of the persons identified in the Daniel determination as a Yindjibarndi apical ancestor.
   • In relation to those applicants who were members of the Todd family, the directors were not satisfied that the applicant met the eligibility criteria in rule 3.1 of YAC's Rule Book, namely that the applicant was descended from one or more Yindjibarndi ancestors. The directors acknowledged that the question whether members of the Todd family should be regarded as members of the group of Yindjibarndi people who claimed to be the common law holders in the Yindjibarndi #1 claim area had not yet been resolved by the Federal Court. However, in view of the requirements of the second compliance notice, it was not open to the directors to defer a decision on the applications for membership made by the Todd family. Those persons were advised that they could reapply for membership if they wished to do so, following determination of the issue by the Federal Court.
   • The directors were not satisfied that the applicant was a person who recognised themselves as a Yindjibarndi person, as they were unaware of any evidence (apart from the application form itself) to support that eligibility requirement.
   • The directors refused the membership application in the exercise of their discretion under s 144-10 of the CATSI Act on the basis that they were not satisfied that the applicant:
     • currently followed and upheld Birdarra Law, including Galharra and Nyinyadt, and were therefore not satisfied that the applicant was a Yindjibarndi person who held in common the body of traditional law and culture governing the Daniel Determination Area as required by rule 3.1 of YAC's Rule Book; and
     • was a person who would support and uphold YAC's objectives and policies; in particular, to protect, preserve and advance the traditions, laws, language, culture and customs of the Yindjibarndi people; to maintain, protect, promote and support the culture, native title traditions and customs, economic development, interests and social progress of the Yindjibarndi people; and to uphold and advance the minimum standards for the survival, dignity and wellbeing of all present and future members of the Yindjibarndi people, as set out in the UNDRIP.
   • The directors refused the membership application in the exercise of their discretion under s 14410 of the CATSI Act on the basis that they were not satisfied that the applicant:
     • currently followed and upheld Birdarra Law, including Galharra and Nyinyadt, and were therefore not satisfied that the applicant was a Yindjibarndi person who held in common the body of traditional law and culture governing the Daniel Determination Area as required by rule 3.1 of YAC's Rule Book;
     • was a person who would support and uphold YAC's objectives and policies; in particular, to protect, preserve and advance the traditions, laws, language, culture and customs of the Yindjibarndi people; to maintain, protect, promote and support the culture, native title traditions and customs, economic development, interests and social progress of the Yindjibarndi people; and to uphold and advance the minimum standards for the survival, dignity and wellbeing of all present and future members of the Yindjibarndi people, as set out in the UNDRIP; and
     • in reaching this decision, the directors took into account the applicant's involvement in the June 2015 ballot, organised by WMYAC and FMG, which led to the s 66B application which was dismissed by the Federal Court in TJ v State of Western Australia.
4. I note that these reasons for refusing the membership applications reflected the criteria set out in paragraphs 2.1 2.6 of the Pending Applications Policy set out above.
5. Under the Pending Applications Policy, all of the reasons relied upon were criteria for membership of YAC, rather than disqualifying criteria. The first four of the bases for refusal were thus stated to be on the grounds that the applicant did not meet the eligibility criteria for YAC.
6. However, in respect of the last two stated bases for refusal (set out above), the stated position was that the directors refused membership in the exercise of their discretion. That suggests that the directors formed the view that the applicant met the eligibility criteria for membership, but was thought unsuitable for membership for the reasons set out.

(iv) The Registrar's conclusion in relation to YAC's compliance with the second compliance notice

1. In a letter dated 22 July 2016 which Mr Davies, the contact officer at YAC, sent to the Registrar, Mr Davies advised that[776]

all known applications for membership ... submitted to the corporation before the close of business on Wednesday, 1 June 2016, have been considered and decided upon by the directors.

...

In respect of all known applications, I confirm that subsections 14410(5) (7) of the CATSI Act have been complied with by the corporation and directors of the corporation.

1. By letter dated 28 July 2016, ORIC wrote to the directors of YAC in response to that letter, and its enclosures. Mr Armstrong, a delegate of the Registrar, advised that[777]

after reviewing these documents, I confirm that the corporation has now satisfied the action items in the [second compliance notice] numbered 1, 2, 3, 5, 6, 7 and 8 (sic).

However, it would be appreciated if the directors could send the Registrar a sample of the letters sent to the applicants whose application for membership was rejected by the directors on 29 June 2016.

I also confirm that the directors still have one action item to complete all of the requirements which was set out in the compliance notice.

...

I remind the directors that under point 4 of the [second compliance notice], the corporation must hold its AGM for the year ending 30 June 2016 before 30 November 2016 unless an exemption or extension is approved by the Registrar pursuant to the CATSI Act.

1. By email dated 28 July 2016, Mr Irving forwarded to ORIC copies of sample letters which were sent to the persons whose membership applications were refused by YAC's directors on 29 June 2016.[778] (The terms of those sample letters were set out above at [576].) By email dated 29 July 2016, Mr Armstrong, a delegate of the Registrar, advised Mr Irving that he was 'satisfied with the sample provided'.[779]
2. I find that the Registrar was satisfied that YAC had complied with the second compliance notice, in so far as it concerned the requirement that YAC deal with outstanding membership applications.

Did the plaintiffs establish that the directors were biased in their rejection of applicants for membership on 29 June 2016?

1. The heart of the plaintiffs' case is that the directors purported to apply the Pending Applications Policy, but did so in a way which excluded those persons who were members or supporters of WMYAC. The plaintiffs' case is that in so doing, the directors used their power to admit members for an improper purpose, namely to prevent WMYAC members and supporters from being in a position to take over YAC, and thereafter to enter into the FMG Agreement, or an agreement in similar terms.
2. The plaintiffs led evidence from a number of witnesses, including Elders within the Yindjibarndi community, who expressed their opinion that applicants refused membership did, in fact, meet YAC's eligibility criteria. I deal with that evidence in a little more detail below.
3. Some of the plaintiffs' witnesses also expressed their opinion that some of the applicants granted membership did not meet the eligibility criteria. By way of example, Ms Karen Toby's unchallenged evidence was that she knew a number of the 26 members of YAC who were added to YAC's Register of Members on 13 July 2016, and knew that they were supporters of Michael Woodley or of the board of YAC.[780] While I have taken this evidence into account I have not given it much weight in my overall assessment of the plaintiffs' case. That is because Ms Toby did not suggest that those persons who were admitted were persons who, objectively, did not meet the criteria for membership of YAC, and there is nothing, of itself, untoward about admitting persons to membership who satisfy the criteria for membership, simply because they may be supporters of the CEO, or of the incumbent board, or of a particular position taken by the board of YAC.
4. Another of the plaintiffs' witnesses, Mr John Sandy, expressed the opinion that not all of the 26 new members added to YAC's Register of Members after the directors' meeting on 29 June 2016 practised Birdarra Law.[781] I have not placed any weight on this aspect of Mr Sandy's evidence. While this evidence demonstrated that there is a perception on the part of some YAC members that the criteria for membership of YAC were not consistently applied by the directors on 29 June 2016, other evidence (which I discuss below) established that there are clearly differences of view within the Yindjibarndi community about what it means to follow Birdarra Law. It is neither appropriate, nor is it possible, for the Court in the present context to make a determination as to whether any particular individual follows Birdarra Law.
5. Mr Mack and Ms Cheedy explained how the directors reached the conclusion that applicants did not meet particular criteria for eligibility for membership of YAC. Mr Irving also gave evidence as to the process adopted by the directors in considering membership applications on 29 June 2016. Both Mr Mack and Ms Cheedy gave evidence that the directors considered each application and applied the criteria for eligibility set out in the Pending Applications Policy. Mr Mack's evidence, for example, was:[782]

We look at the Yindjibarndi Yindjibarndi people. ... [It] is not Wirlumurra ... just Yindjibarndi people and we had a policy and procedure to follow as well. We didn't reject them because of "Ok. This is a Wirlumurra person." We had a policy we had a procedure.

1. Mr Mack and Ms Cheedy each denied that the directors looked to refuse membership to any applicant considered to be associated with WMYAC, because the board did not want WMYAC's supporters to be members of YAC, and to be in a position to take control of YAC.[783]
2. Mr Irving's evidence was that membership applications 'weren't refused on the basis of somebody just belonging as a member to another corporation'.[784] He asserted that he

was very much concerned to ensure that each application was considered on its own merits in accordance with the proper policy that was adopted by the board ... and each application was considered in accordance with that policy and it had nothing to do with whether someone was simply a member of [WMYAC].[785]

1. It is neither possible, nor is it necessary in the circumstances of this case, to reach any view about whether the grounds for eligibility for membership of YAC were met in the case of any individual applicant whose application was refused. The only question which needs to be determined is whether the plaintiffs have established that it is more likely than not that the directors used their power to admit members to YAC, or to reject applications for membership, for the improper purpose for which the plaintiffs contend. In order to determine that question, however, it is necessary to make some findings in relation to the application of the membership criteria on which the directors relied, or purported to rely.
2. The plaintiffs focused, in particular, on the directors' application of the membership criteria with respect to three categories of applicants as evidence of the directors' pursuit of the improper purpose for which the plaintiffs contend. There was some evidence about the position of those whose applications were rejected on the basis that they did not have a Yindjibarndi apical ancestor, and especially the members of the Todd family. However, the plaintiffs did not appear to rely, either at all or at least to any significant extent, on that category of applications in support of their claim of oppression. In any event, there was nothing in the evidence concerning applicants refused on this basis which supports any finding of bias by the directors, or which constituted oppressive conduct.
3. It is therefore not necessary to consider the position of the members of the Todd family here. For completeness, I note that on 20 July 2017, the Federal Court published its reasons for decision in the Yindjibarndi #1 claim. On 13 November 2017, Rares J made orders giving effect to those reasons for decision. In addition, Rares J had to determine a claim by members of the Todd family that they were Yindjibarndi people and entitled to be recognised as members of the Yindjibarndi people as the holders of the common law native title rights recognised by the Court. His Honour concluded that the Todd family members had failed to prove that they were members of the Yindjibarndi people. His Honour found:[786]

that evidence of the traditional laws acknowledged and traditional customs observed by the Yindjibarndi people established that, first, mere birth on Yindjibarndi country cannot make a person, neither of whose parents is Yindjibarndi, are Yindjibarndi and, secondly, a child of parents one of whom is, and the other is not, Yindjibarndi, can elect, once and for all, to follow the language or country group of the Yindjibarndi parent or the other parent. The Yindjibarndi had, and have, no law or custom of 'naturalisation' for persons of two nonYindjibarndi parents. Therefore, the only way that a person in a position of the Todd respondents and their family can be identified by others as Yindjibarndi is by acknowledgment and observance of the Yindjibarndi people's traditional laws and customs.

1. His Honour was not satisfied, on the evidence, that the Todd respondents had an apical Yindjibarndi ancestor.[787] That decision resolves the question of membership of YAC for the members of the Todd family who rely on the same ancestry as the parties considered in the decision of Rares J.
2. The applications on which the plaintiffs focused were those applications rejected on the basis that the applicants did not meet the following criteria:

(i) The criterion in clause 2.2 of the Pending Applications Policy, that the applicant has reached 18 years of age (age criterion);

(ii) The criteria in clauses 2.3 and 2.4 of the Pending Applications Policy, namely whether each applicant regarded themselves, and was regarded by the directors, as a Yindjibarndi person (identification criteria); and

(iii) The criteria in clauses 2.5 and 2.6 of the Pending Applications Policy, namely that the applicant follow Birdarra Law, including Galharra and Nyinyadt (Birdarra Law criterion), and that the directors consider that the applicant will support and uphold YAC's objectives and policies (loyalty criterion).

(i) Age criterion (clause 2.2 of the Pending Applications Policy)

1. The directors rejected four applications namely those from GeeElla Bropho, Don Coppin, Kade Moody and Symaya Moody on the basis that they were not satisfied that the applicant was 18 years of age.[788] Mr Mack and Ms Cheedy explained that the directors were not satisfied that each of those applicants was over 18 years of age and explained that the applicants had not recorded their date of birth on their application forms.[789] Ms Cheedy denied knowing that these applicants were 18 years of age.[790]
2. The plaintiffs adduced evidence to establish that each of these applicants was 18 years of age as at 29 June 2016, and that they were otherwise qualified for membership of YAC. By way of example, Ms Symaya Moody's evidence was that she was 18 years old when she applied for membership and 'it annoys me that they say that they are not satisfied I am 18 and I am therefore unable to become a member'.[791] Ms Moody's evidence was that she is a Yindjibarndi woman, and had been brought up as a Yindjibarndi person. She also deposed that she is a member of WMYAC.[792] Further, Ms Allery Sandy deposed that Don Coppin, Kade Moody and Symaya Moody are her grandchildren, all of whom are over the age of 18 and have Yindjibarndi mothers and Yindjibarndi grandparents.[793] Finally, Ms Karen Toby gave evidence that Don Coppin, Kade Moody and Symaya Moody were all 18 years of age, and that each of them were part of the Sandy family and were Allery Sandy's grandchildren.[794]
3. I note that the table of decisions attached to the minutes of the directors' meeting of 29 June 2016 notes that the membership application for each of these applicants was submitted through WMYAC or Mr Rodney Adams.
4. In a small community like the Yindjibarndi community in Roebourne, and in circumstances in which Ms Cheedy acknowledged that she knew of these applicants, and their families, and could have sought advice from Elders or senior members of the applicants' families to confirm their age, it might seem surprising that the directors did not make further enquiries to ascertain the age of these applicants.
5. However, I am not persuaded that there is any basis for doubting the credibility of the directors' evidence as to their reason for rejecting the applicants in this category, for two reasons. First, when the directors met on 29 June 2016, they had 171 applications to deal with, and it was necessary that they make a decision on each of those by the following day, in order to comply with the requirements of the second compliance notice. The evidence of Mr Mack was that the process of dealing with the applications took most of the day. It is apparent that had the directors wished to make further enquiries about any applicant at that stage, there would not have been time to do so. Secondly, the letter sent to the applicants in this category invited them to submit an application in the future which contained proof of their age. There was no limit on the time within which it would have been open to them to do so. It is not apparent why a further application could not have been made prior to the next AGM for YAC. The latter criterion, in particular, strongly militates against the conclusion that the directors' decision was made for the improper purpose for which the plaintiffs contend.

(ii) Identification criteria (clauses 2.3 and 2.4 of the Pending Applications Policy)

1. I turn next to those applicants whose applications were rejected on the basis of the identification criteria. In total, 53 of the 72 applications rejected on these bases were from persons whose applications were (according to the table attached to the minutes of the meeting on 29 June 2016) submitted through WMYAC.
2. Mr Mack explained that in Yindjibarndi culture, a person will choose to follow the way of their mother or their father, so that in order to be Yindjibarndi, a person must have a mother or a father who is Yindjibarndi, and must choose to follow the Yindjibarndi way.[795]

1. The plaintiffs adduced evidence from a number of persons to demonstrate that a large number of the persons whose applications were rejected on the basis of the identification criteria, in fact satisfied, or at least appeared to satisfy, the identification criteria. Ms Allery Sandy referred to 42 of the persons whose applications were rejected on these bases including Nathan Adams, Reikesha Aubrey, Laurissa Bobby, and Jesse, Shannen and Simone Bropho - as Yindjibarndi people.[796] In most of these cases, Ms Sandy referred to their parents or grandparents who were Yindjibarndi people.[797] Other witnesses who are Yindjibarndi people, and members of YAC, namely Ms Sally Anne Walker[798] and Ms Karen Toby,[799] similarly expressed the opinion that applicants rejected on these bases were in fact Yindjibarndi people and regarded as Yindjibarndi people, and were entitled to membership of YAC. It is not necessary to set out their evidence in full. By way of example, Ms Toby deposed that Malcolm Hubert was the brother of Jason Hubert, who had been accepted as a member of YAC.[800] Similarly, Ms Walker referred to other applicants whose applications had been refused because they did not meet the identification criteria, namely Bevan Hicks, Dennis Hicks and Roderick Parker. Ms Walker's evidence was that they were her nephews, that each of them recognised themselves as Yindjibarndi, had been put through the law by their grandfather, a senior Yindjibarndi law man, and that she knew that Roderick and Bevan, in particular, followed Birdarra Law. Ms Walker's evidence was that 'for the directors of YAC to say that [they] are not Yindjibarndi is not right'.[801] She said that the decision to reject their applications 'does not make sense to me. I do not understand why they are being rejected'.[802]
2. Finally, Mr Wesley Munda, whose application was rejected on these grounds,[803] gave evidence that he identified himself as a Yindjibarndi person, that his mother is Aileen Sandy (one of the plaintiffs in this action), that he was initiated as a Yindjibarndi man at law ceremonies at Woodbrook, that he attended Birdarra Law ceremonies, that he speaks the Yindjibarndi language, and that he knows and respects the traditions, culture and customs of the Yindjibarndi people.[804] Mr Munda also deposed that he is a member of WMYAC.[805]
3. The evidence of the plaintiffs' witnesses is not determinative of the question whether the persons whose applications were rejected on these grounds are in fact entitled to membership. The relevance of this evidence, however, is that it demonstrated that a large number of the applicants rejected on the basis of the identification criteria regarded themselves as Yindjibarndi, and were regarded as Yindjibarndi people by others in the Yindjibarndi community, including those who are members of YAC. Of itself, that cast a question mark over the directors' rejection of these applications, particularly when this evidence is viewed in conjunction with the evidence that a large proportion of the persons whose applications were rejected on this basis were associated with WMYAC.

1. Mr Mack and Ms Cheedy both gave evidence that the directors were not satisfied that each applicant rejected on this ground 'followed the Yindjibarndi side of his or her family'.[806] Mr Mack explained:[807]

The rules and the policies say that a person has to recognise him or herself as Yindjibarndi. And the directors have to recognise that person as Yindjibarndi. We talked about the family connections for each person. Usually, a person chooses to follow the mother or the father. My mother is Ngarluma and my father was Yindjibarndi. I chose to follow Yindjibarndi through my father. My eldest sister chose to follow Ngarluma through our mother. I do not get involved in Ngarluma native title business. That is because I follow Yindjibarndi. I identify as a Yindjibarndi person and other person recognise me as Yindjibarndi.

1. Ms Cheedy also explained how the directors determined whether someone was a Yindjibarndi person who was eligible for membership of YAC:[808]

Knowledge of people in the Roebourne community and their links to their ancestors through both their parents is well known amongst many Yindjibarndi people. ... In our Yindjibarndi community people will choose one Aboriginal group's way for native title purposes when they turn 18 years old. They are not allowed to double dip because if someone did that with a lot of their different ancestors some of them could choose four ways because they'd go back to their great grandmothers and great grandfathers.

1. Ms Cheedy referred to a number of applicants who were rejected because the directors did not recognise them as being Yindjibarndi, on the basis that they followed the way of another Aboriginal group, even if they had a parent or grandparent who was Yindjibarndi. By way of example, Ms Cheedy's evidence was that Nathan Adams follows his mother's Ngarluma side, Reikesha Aubrey follows her mother's Mardudhunera side, Laurissa Bobby follows her father's Nyaparli side and Jessie, Shannen and Simone Bropho follow their Guruma side.[809]
2. However, in cross examination, Ms Cheedy confirmed that, as at June 2016, there were many members of YAC who were also members of other native title groups or PBCs.[810]
3. It was put to Ms Cheedy that, when the board was dealing with membership applications in June 2016, if they were able to find the basis for rejecting someone they thought would be a supporter of WMYAC, they relied upon that basis. She initially denied that that was the case:[811]

No. We had a we had our own policy and procedure that we had to do. That was one of the things that we had to do from that

That was the policy that we've just been talking about, that you designed to try and ensure that no supporter of Wirlumurra could be eligible to be a member, isn't it? Yes.

1. However, Ms Cheedy also gave evidence that supports the conclusion that at least some applications in this category were rejected on the basis that the applicant was a member or supporter of WMYAC. By way of example, Ms Cheedy referred to the directors' rejection of an application from Mr Malcolm Hubert on the basis that the directors did not recognise him as Yindjibarndi because he did not follow the Yindjibarndi way.[812] Ms Cheedy explained that Mr Hubert's application:[813]

raised the question of whether the applications are about supporting YAC and being a true member of YAC, or are about WMYAC trying to take over YAC to get money and decision making powers in YAC. Malcolm Hubert made an application through WMYAC.

1. Another applicant to whom Ms Cheedy referred was Ms Maxine Evans. Ms Evans' application according to the table attached to the minutes of the directors' meeting of 29 June 2016[814] - was rejected on the basis of the identification criteria. Ms Cheedy acknowledged that Ms Evans' mother is Yindjibarndi.[815] However, in her affidavit, Ms Cheedy explained that Ms Evans' application 'was refused because it was part of the block application that was designed for WMYAC to take control of YAC and to do things that are not in the best interests of the Yindjibarndi people under clause 2.6 of the Policy'.[816]

Conclusion in relation to the application of the identification criteria

1. In my view, five aspects of the evidence cast doubt on the evidence of the defendants' witnesses that the identification criteria were genuinely applied by the directors.
2. First, in so far as Mr Mack and Ms Cheedy claimed that the directors rejected applications by persons who were understood to be members of another PBC under the NT Act, that approach is quite inconsistent with the approach taken by YAC's board in the past. It was put to Ms Cheedy that many other applicants had been granted membership of YAC, notwithstanding that they were members of the Ngarluma Aboriginal Corporation, and that those persons were admitted to membership because they supported Mr Woodley and the incumbent board. While she did not deny that members of the Ngarluma Aboriginal Corporation were also members of YAC, Ms Cheedy's explanation was that admission to membership depended on the view of the entire YAC board, at the time a membership application was considered, as to whether the applicant was a Yindjibarndi person.[817] With respect, that was not a convincing explanation.
3. Secondly, there was no suggestion by any of the defendants' witnesses that YAC's board intended to revisit the membership of any existing members of YAC who were also found to be members of another PBC under the NT Act. If the directors genuinely believed that persons who were members of other PBCs could not be regarded as Yindjibarndi, then those persons could no longer be regarded as meeting the identification criteria for YAC. The inconsistent application of the identification criteria casts doubt on the genuineness of the directors' application of these criteria on 29 June 2016.
4. Thirdly, Ms Cheedy's evidence in relation to Mr Hubert and Ms Evans strongly supports the inference that while the directors purported to reject their applications on the basis that they did not identify those applicants as Yindjibarndi, in fact the real reason for the rejection of their applications was that the directors were of the view that they would not act in the best interests of the Yindjibarndi people. The fact that the directors would rely on one basis for refusal of their membership applications, when in fact those applications were rejected because of the applicants' association with WMYAC, seriously undermines the genuineness of the directors' claims that they applied the Pending Applications Policy.
5. Fourthly, the fact that existing members of YAC regarded a number of the applicants as Yindjibarndi people casts doubt on the directors' claim that they genuinely did not regard those applicants as Yindjibarndi people, especially in the absence of any detailed explanation as to why the identification criteria were not met.
6. Fifthly, the fact that a significant proportion of the applicants rejected on these bases were also expressly identified as members of WMYAC supports the inference that their association with WMYAC was the real reason that their applications were rejected.
7. In view of all of this evidence, I am satisfied that it is more likely than not that the real reason why at least some of the applicants in this category were refused membership was that they were considered to be members or supporters of WMYAC.
8. Before leaving this topic, I should mention that the evidence demonstrated that there is a division of opinion among the members of the Yindjibarndi community about aspects of Yindjibarndi law and custom concerning how a person identifies as a Yindjibarndi person. By way of example, Ms Allery Sandy's understanding was that if a child's parents were from different Aboriginal groups, and the child did not choose to follow one cultural group in particular, 'they follow both laws. They have traditional law and rights in the father's country and mother's country.'[818] A different opinion was identified by Mr Vincent Adams. His understanding was that Yindjibarndi law and custom meant that a person would follow their mother for their kinship group,[819] so that to be a Yindjibarndi person, it was simply necessary to have a Yindjibarndi mother.[820]
9. It is not necessary to resolve any question about how, as a matter of Yindjibarndi law and custom, a person comes to be regarded as Yindjibarndi. What this evidence does illustrate, however, is that membership disputes within the Yindjibarndi community exist, and should preferably be resolved by the Elders of that community.

(iii) The Birdarra Law criterion and the loyalty criterion (clauses 2.5 and 2.6 of the Pending Applications Policy)

Evidence as to what it means to follow Birdarra Law

1. The evidence of the witnesses illustrates that there are some significant differences of view within the Yindjibarndi community about Yindjibarndi law and custom concerning the observance of Birdarra Law, including Galharra and Nyinyadt. As I understood the evidence, in broad terms Birdarra Law encompasses the requirements of religious and law ceremonies and meetings, and the initiation of young men into Yindjibarndi culture, Galharra refers to Yindjibarndi law and custom concerning inter-personal relationships within the Yindjibarndi community, and Nyinyadt refers to the spiritual belief or guiding principle that Yindjibarndi people care for each other by sharing what they have with each other.
2. Ms Cheedy explained that 'every Yindjibarndi person is taught from a small age their language, their culture, their relationship with other Yindjibarndi people. You know how each family fits together and who the outside partners are from other groups.'[821] She explained that 'the Galharra system is how we all fit together so you know who you can talk to and who you can't and who you can marry and who you can't. ... The Galharra does many things also tells you about your roles and responsibilities in all parts of life'.[822]
3. Mr Mack explained Galharra and Nyinyadt in the following way:[823]

People who go to Woodbrook for Birdarra Law are expected to uphold it by following Galharra (respecting yourself and everyone within the Galharra relationship system) and Nyinyadt (caring and sharing for one another). It is part of their role at the law ground. Galharra and Nyinyadt doesn't stop at the law ground. It is part of Yindjibarndi culture. Yindjibarndi people are expected to carry it on in all parts of their life; on the law ground, on country, in town and in native title.

1. Mr Mack also explained Nyinyadt as meaning that 'you have to be responsible for your country. Whatever is in that country, you have to share everything'.[824]
2. However, it was apparent from the evidence that some members of the Yindjibarndi community, and Mr Woodley in particular, took a strict view of the importance of observing Birdarra Law, Galharra and Nyinyadt. Mr Woodley's evidence was that:[825]

Gahlarra is one of the four Yindjibarndi pillars. The others are language, Birdarra and Nyinyadt. Without one of these pillars, you do not have a society that is governed by strict rules, authority, relationships and reciprocity.

Gahlarra is crucial to Yindjibarndi people. Gahlarra is made up of four groups Banaga, Burungu, Balyarri, Garimarrda. A Burungu man must marry a Banaga woman and vice versa. A Garimarrda man must marry a Balyarri woman and vice versa. Mixed marriage is going against Yindjibarndi law. When you marry wrong way you break Yindjibarndi law. Some people in our community are married the wrong way. Just because they are, it does not make it right. These people, when they have kids, will be named and shamed in Birdarra law.

1. Other witnesses were of the view that a more flexible approach to compliance with the requirements of Birdarra Law was accepted in Yindjibarndi culture. By way of example, Mr Vincent Adams, who is a senior Yindjibarndi law man,[826] explained that with the advent of modern times it was not possible to practise traditional Birdarra Law in the way it was practised centuries ago. Mr Adams' evidence was that[827]

in the Pilbara our law is the only law where we take a boy and keep him for one day and return him as a man. ... Law meetings are essentially for the purpose of initiating boys into men. ... If parents choose not to initiate a boy the Elders tried to persuade the parents that it is important for future families that a boy go through initiation either in one day or the full Birdarra ceremony. The full ceremony would take up to six weeks.

... These Birdarra ceremonies are practised at Woodbrook (about 15 km from Roebourne) and in the area surrounding Woodbrook.

1. Mr Adams' view was that the division within the Yindjibarndi community is a division about the requirements of Birdarra Law:[828]

As a result of this disagreement with Michael [Woodley] there is a division in the Yindjibarndi community. It is not about relationship with FMG. It is much deeper and more profound than that. I have experienced myself within the Yindjibarndi community that there is a division between what Michael Woodley is saying is Birdarra Law and what I know to be Birdarra Law.

For example, in the modern practice of Birdarra Law it is not mandatory to attend every meeting. ... It simply is not possible ... . They [men] practice the law wherever they are. They are welcome to come back to law ceremonies whenever they are available and able to come.

1. It was apparent from his evidence in crossexamination that Mr Adams' view was that a person's observance of Birdarra Law and of Galharra should not be determinative of whether that person was recognised as a Yindjibarndi person. He noted, for example, that there were members of the stolen generation who had lost their language, law and custom, and it was his view that those persons should not be denied membership of their Aboriginal community.[829]
2. Mr John Sandy expressed a similar view:[830]

As a Yindjibarndi law man I am concerned at [Michael Woodley's] assertion and the board of YAC's assertion that applicants don't protect, preserve and advance the traditions, laws, language, culture and customs of the Yindjibarndi people or follow and uphold Birdarra Law. To my knowledge it is not mandatory or essential that a Yindjibarndi man attend every law ceremony. This is particularly the case when some of our Yindjibarndi men may be in jail or working or have left the Roebourne community for work or for other reasons. They are always welcome to return.

1. Ms Allan also shared the view that Birdarra Law was no longer practised as strictly as it had been in the past:[831]

In respect of law making it is not essential for every Yindjibarndi person to attend every law meeting.

If you are sick, do not have a car or some other problem has arose then you do not have to attend the meeting.

Some people move away for a while and come back.

If they shift to another town ... they can still follow the Yindjibarndi laws. You still follow the law wherever you are.

1. As for Galharra, Ms Allan's view was:[832]

In relation to Galharra, although it is important it is by no means as important as it was in the past.

Galharra remains important during the law ground time. It determines where you sit in various groups of the law grounds. The four skin types for the Yindjibarndi region are Banaga, Burungu, Balyirri and Garimarra.

The elder women will direct you to sit at the law grounds.

In the old days it used to be that you had to marry a complementary skin group.

Galharra has been relaxed because of the number of different marriages between language groups in the modern times. Some people do not believe in Galharra but still observe the laws.

1. Ms Allery Sandy's view was similar. Her evidence was 'everyone who is born Yindjibarndi is Yindjibarndi, and if they marry somebody from a different Aboriginal group, they are still respected as Yindjibarndi'.[833]
2. Another of the plaintiffs' witnesses, Ms Sally Anne Walker, expressed a similar view about Galharra and Nyinyadt:[834]

Galharra (the skin groups) ... has gotten all mixed up and nobody really uses it anymore. It died out years ago. People go by relationships now their mothers' and their fathers' family line.

I do not know what Nyinyadt is. I have spoken to Yindjibarndi elders such as Sylvia Allan and Diana Smith and they do not know what it was either. We think the directors mean Yinyard, which means giving gifts to people after you have been traveling.

1. The fact that the witnesses in this case expressed different views about the detail of the content of the traditional laws and customs of the Yindjibarndi people was not surprising. As French J observed in Sampi v The State of Western Australia:[835]

Within a single coherent system of traditional law and custom there may be differences of interpretation and different versions of particular stories told. An apposite analogy may be seen in the differences of view among those directly involved in the administration of the Australian legal system and commentary on it in connection with matters such as the interpretation of the common law and equity and even of the Constitution and statutes. There are sometimes debates about the origins and content of particular rules of judge-made law. And outside the very small population of persons involved in the administration of the law, there is, in the wider community, a range of awareness of the law from the well-informed to the profoundly ignorant. None of that detracts from the existence and validity of the legal rules by which our society is governed. In a system of law and custom transmitted by oral tradition these general propositions have even greater force.

1. To similar effect, the full Federal Court in Northern Territory v Alyawarr Kaytetye, Warumungu, Wakaya Native Title Claim Group[836] recognised that the membership of any indigenous society can be defined by a variety of rules, and that there may be differences of view in relation to the content or nature of those rules, or the strictness with which they should be applied. The Court observed that in the resolution of membership disputes,[837]

it is not ... productive of any practical benefit to require that the laws and customs of indigenous society and the rights and interests arising under them be presented as some kind of organism in amber whose microanatomy is available for convenient inspection by nonindigenous authorities.

1. The differences of view expressed by the witnesses in relation to the content of, and the importance of observing, Birdarra Law, Galharra and Nyinyadt suggest that caution should be applied in considering the evidence of the directors as to their application of the Birdarra Law criterion for membership of YAC. These are questions over which minds may (and in this case, do) differ. Consequently, it would be appropriate to grant some latitude to the directors' views about satisfaction of this criterion, in so far as the Court concludes that this criterion was in fact applied by the directors.
2. These differences of view also serve to highlight the fact that determining questions such as whether a person is a Yindjibarndi person according to Yindjibarndi law and custom are questions which, preferably, should be determined by Elders within the Yindjibarndi community.

1. Ms Sally Anne Walker and Ms Karen Toby gave evidence as to their belief that a number of the individuals whose applications were refused on the basis of the Birdarra Law criterion in fact observed Birdarra Law. By way of example, Ms Walker deposed that an application by her niece, Janine Bailey, had been rejected on the ground that Ms Bailey 'does not follow Birdarra law and will not support and uphold YAC's objectives and policies'.[838] Ms Walker's evidence was that she considered that her niece practised Yindjibarndi law and culture, and that she went to law meetings when possible, but she had been away for a long time.[839]
2. Similarly, Ms Allery Sandy deposed that[840]

In respect of the applicants who were refused membership on the basis that they do not follow Birdarra law, in my opinion every person on the list does follow Birdarra law. They all attended law meetings and, insofar as they are young women, they attend the meetings to support their brothers.

1. Other witnesses, such as Mr Payden Sandy,[841] gave evidence that they observe Birdarra Law but were refused membership of YAC on the basis that they did not meet the Birdarra Law criterion for membership. Mr Sandy deposed that he is:[842]

an initiated Yindjibarndi man. My dad especially and my uncles, John Sandy and Ricky Sandy, brought me up in accordance with Birdarra law.

Whenever I am able to, I attend law ceremonies. ...

I speak Yindjibarndi language and I have been brought up in accordance with and respect for traditions, language and culture and customs of the Yindjibarndi people.

1. Mr Payden Sandy acknowledged that he was a member of WMYAC,[843] but his evidence was that he wanted 'to be a member of YAC so I can be there with my dad. He raised me as a Yindjibarndi man in accordance with Yindjibarndi law. I want to be there to help Yindjibarndi people'.[844]
2. Mr Payden Sandy's father, Mr Ken Sandy, who is a member of YAC, disagreed with the rejection of applications for membership by both Payden, and by his daughter, Emerson Sandy, on the basis that they did not follow Birdarra Law. His evidence was:

I have raised all of my children to follow Birdarra law. I have put them through Birdarra law, especially my boys. I know this reason to be false.[845]

1. Perhaps the starkest example of the application of the Birdarra Law criterion concerned the application for membership made by Mr Rodney Adams. Mr Adams applied for membership of YAC on 14 March 2016.[846] His application was refused on the basis that he did not meet the Birdarra Law criterion, and on the basis that he did not meet the loyalty criterion.[847]
2. Mr Adams gave evidence that he was raised as a Yindjibarndi man, initiated as a Yindjibarndi man and that he follows Yindjibarndi law. He deposed that he attends law meetings at Woodbrook Station and 'I generally take responsibility for preparing Woodbrook for meetings and cleaning up after meetings'.[848] He also deposed that he had 'always practised Birdarra Law and taught Birdarra Law. My grandfathers ... put me through the law.'[849]
3. Mr Adams had previously been admitted to membership of YAC in 2014.[850] However, he signed a letter of resignation from YAC in the course of the YAC AGM on 30 November 2015, apparently in frustration at the division within YAC's membership between those who supported Michael Woodley, and those who supported WMYAC.[851] His application for membership in March 2016 was thus an application to be readmitted to membership of YAC.
4. There was nothing to indicate that between 2014 (when he was initially admitted to membership of YAC) and June 2016 (when his application for re-admission to YAC was refused) Mr Adams' observance of the customary requirements of Birdarra Law had changed in any way. Indeed, there was evidence that nothing about Mr Adams' observance of the requirements of Birdarra Law had changed in the interim. Mr Ken Adams gave evidence that he did not understand why Mr Rodney Adams had been refused membership of YAC. He explained that he knew[852]

Rodney to be a Yindjibarndi man. He has been through Yindjibarndi laws. He is always the one who has cleaned at Woodbrook and made it available for our law meetings. I know him to be involved with the Yindjibarndi people on a daily basis.

1. However, one significant intervening development between 2014 and 2016, was that Mr Adams had what he accepted was a 'serious falling out' with YAC.[853] That appears to have occurred after Mr Adams participated in the unsuccessful s 66B application in July 2015.

1. The table appended to the minutes of the directors' meeting on 29 June 2016 indicated that every applicant whose application for membership was rejected on the basis that they did not meet the Birdarra Law criterion was also rejected on the basis that they did not meet the loyalty criterion.[854]
2. Mr Mack confirmed that the directors had rejected a number of applications because[855]

we were not satisfied that the person followed and upheld Birdarra Law and because we did not think that the person would uphold YAC policies and objectives.

1. Mr Mack explained that the applicants rejected for these reasons included Cecil Injie, Rodney Adams, Payden Sandy, Emerson Sandy and Janine Bailey. However, his explanation for the directors' conclusion revealed that it was the applicants' membership of, and support for WMYAC, and in turn their support for the FMG Agreement, that was the issue:[856]

These people know Birdarra Law. They know Galharra and Nyinyadt. But we were not satisfied that they followed it all the time in respect to their behaviour on how they treat all of YAC the members, the directors, the staff. We thought that these people were involved in the section 66B meeting and this was not supporting YAC objectives. Trying to replace the applicants like that is throwing Birdarra, Galharra and Nyinyadt out the window. If Wirlumurra gets all the benefits in an agreement with FMG, that is not a fair deal, that is not Nyinyadt. And that is not showing respect to all Yindjibarndi people.

1. Mr Mack also deposed that he had read the decision of Rares J in TJ v State of Western Australia. Mr Mack's view, apparently in light of that decision, was that supporters of WMYAC, with FMG behind it, were

trying to close down YAC as the [PBC] and have [WMYAC] represent Yindjibarndi people in the Daniel determination area and in the Yindjibarndi #1 claim. Also, they wanted to replace YAC under the [Participation Agreement].[857]

1. Mr Mack was crossexamined about this aspect of his evidence. It was put to him that the issue was with membership of WMYAC. He denied that that was the issue:[858]

It's not about that. ... We have been supporting them, Wirlumurra. We're not Wirlumurra. ... Wirlumurra is trying to take over YAC, because of the agreement, and these are the people FMG paid and other big supporters, that they don't respect our law, Birdarra law. They don't have (indistinct) upholding our agreement through that system.

1. However, Mr Mack considered that WMYAC members were not loyal to YAC. He agreed that 'they're not loyal with [our] corporation. ... That's why I got that's why we got elected for ... we're here for all Yindjibarndi, to protect our native title'.[859]
2. In cross examination, Mr Mack confirmed that he saw the applications under consideration at the meeting on 29 June 2016 as consistent with the previous attempts by WMYAC to take over YAC:[860]

Wirlu-murra is trying to take over YAC, because of agreement, and there are the people FMG paid and the big supporters, but they don't respect our law, Birdarra Law. They don't have (indistinct) upholding our agreement through that system.

1. Mr Mack confirmed in cross examination that his view was that in so far as WMYAC members had participated in the s 66B application, and proposed to enter into the FMG Agreement, that was inconsistent with Birdarra Law and Nyinyadt. His evidence was:[861]

... you share and caring, and look after and respecting old people; elders. That's part of Birdarra society. ... All people learn this about this and that. How to respect each other. How to preserve what's now, future. For our generation and next generation ... and it includes Galharra Nyinyadt as well. Nyinyadt is, you know, I just told you. You share one thing ... Rod Adams was a member. We don't see him as a Wirlumurra, we just saw him as a person who was trying to take over a corporation YAC corporation, and a few other members as well, which it was Rod, Payden, Emerson, Janine. They do not all hold the Birdarra law or even culture through Nyinyadt. Nyinyadt if they were to if they were to replace us at the Rodney especially Rodney, he was the application applicant, applying for application to replace us at the s 66B. It come back to the signing of agreement with FMG. He was if he would have got an application of applicant, he would sure enough have signed agreement with FMG. As signing the agreement, it goes, the document say ... it goes to Wirlumurra people. ... Wirlumurra members. ... Not YAC or Yindjibarndi. Yindjibarndi is one. That's not our law, that's not the Wirlumurra law.

Wirlu-Murra is just we heard we hear that it's a day to day corporation run I don't know what it's called, but a day to day be called, but we know they're they've been getting support from FMG, the section 66B shows it, to take over YAC for the agreement, to take over the Yindjibarndi claim. If they're and come back with my they're come back to what I am saying earlier. They're wanting to take if they sign the agreement, Nyinyadt, what we're trying to you know, we made the rule for, you know, upheld the Birdarra Law through Nyinyadt, and that's you know, they're not showing a true Yindjibarndi person of a person who is, you know, wanting to share and care for all Yindjibarndi. They want to grab for themself ... they're not loyal with the corporation ... with our corporation.

1. It was apparent from Mr Mack's evidence that in his view, disagreeing with the position taken by YAC's board in relation to entry into the FMG Agreement was inconsistent with upholding Birdarra Law. He explained that view in the following part of his cross examination:[863]

So is it that they you don't think that they're being loyal to the Yindjibarndi Aboriginal Corporation and that's not upholding Birdarra law? Upholding Birdarra law, yes.

Have I got that right, to be clear on that? So, because they don't support the Yindjibarndi Aboriginal Corporation, they're not upholding Birdarra law? Is that a fair summary? Yes, through Nyinyadt.

Yes? And they through that Nyinyadt and Galharra. They're only respecting themselves. They don't even respect us, what we're trying to do for them. It's a deal for everyone, not for individuals. So Nyinyadt is it comes into play if they want to sign the deal, FMG will give Wirlumurra and their members. We're not a member of ... the whole of Yindjibarndi is not a with Wirlumurra Aboriginal Corporation. It's only about a few of them. ... Nyinyadt is a big part of why and the Birdarra law (indistinct) Birdarra law (indistinct) the policy, it's a big plays a big part.

1. Mr Mack's evidence was that he did not think that entry into the FMG Agreement was Nyinyadt for Yindjibarndi people:[864]

Why do you say that was meant that all the benefit will go to Wirlumurra and to nobody else in the community and, therefore, it wasn't sharing in the YAC manner? Well the ... speculating (indistinct) if they do if they do get in, form this corporation ... sign the deal ... with FMG it's it brings back that same thing then. It's (indistinct) for all Yindjibarndi people. It's Nyinyadt for you, Nyinyadt for us, Nyinyadt for our kids, Nyinyadt for today's people.

1. It was apparent from Mr Mack's evidence that it was for this reason that he took the view that Mr Rodney Adams did not uphold Birdarra Law.[865]
2. Ms Cheedy did not go so far as to equate an applicant's support for the FMG Agreement as an indication that the applicant did not follow Birdarra Law or Nyinyadt. There was no evidence to suggest that other directors held the same view as Mr Mack.
3. In so far as Ms Cheedy's evidence was that the directors refused applications on the basis that the applicant did not follow Birdarra Law, she did not identify any separate basis for that conclusion, as distinct from the directors conclusion that the applicant did not meet the loyalty criterion.
4. By way of example, Ms Cheedy explained why it was that applications from Payden Sandy and Emerson Sandy were rejected. Her evidence was that that was because 'they do not uphold Birdarra Law and because they do not support and uphold YAC's objectives and policies. They were involved in the attempt to remove the decision makers for the Yindjibarndi #1 claim last year'.[866]
5. For completeness, I note that in cross examination, Ms Cheedy sought to add to her explanation for why applications by Payden Sandy and Emerson Sandy were rejected, by suggesting that they were rejected 'because we have been told that they follow their mother's side Ngarluma side'.[867] That explanation was inconsistent with Ms Cheedy's other evidence, and with the reasons identified in the table attached to the minutes of the directors' meeting of 29 June 2016. In the end, Ms Cheedy confirmed that the only reasons for the rejection of Mr Payden Sandy's application were those which she had identified in her affidavit, namely that he did not meet the Birdarra Law criterion and the loyalty criterion.[868] Counsel for the Defendants submitted[869] that Ms Cheedy became confused about the directors' reasons for rejecting these applicants. I do not accept that submission. In my view, this was an occasion on which Ms Cheedy sought to cast the decision of the directors in a more positive light. Consequently, I do not place any weight on her suggestion that the applications by Mr Payden Sandy and Ms Emerson Sandy were rejected because they did not meet the identification criterion.
6. Turning to Ms Janine Bailey's application, Ms Cheedy explained that her application was rejected:[870]

because WMYAC and [Rodney Adams] made the application on her behalf. She had never made an application to be a member of YAC before. The board did not consider that [Ms Bailey's] application should be accepted as she is an avid supporter of WMYAC and her family have always been part of WMYAC. She would not support and uphold YAC's objectives and policies under clause 2.6 of the policy.

1. Finally, Ms Cheedy also referred to Mr Rodney Adams' application. She noted that Mr Adams had resigned from YAC,[871] and noted that Mr Adams had[872]

tried to come back and be a member of YAC again ... [but that] under 2.6 of the Policy he cannot be a member of YAC because he does not support and uphold YAC's objectives and policies. He and others started an application in the Yindjibarndi #1 proceeding to replace the current applicants with himself and Sylvia Allen, Maudie Jerrold, Francis Phillips, Allery Sandy, Ken Sandy and Diana Smith ... I know from the s 66B application in July 2015 that [Rodney Adams] wants to replace YAC with another PBC and take the Rio Tinto agreement money and settle the Yindjibarndi #1 claim for nonexclusive native title like the Ngarluma Yindjibarndi determination.

1. The only other evidence which directly bears on the bases for the rejection of applications in this category is that which was given by Mr Irving. He was present during most of the directors' deliberations on 29 June 2016. Mr Irving explained that part of the discussion he witnessed was conducted in Yindjibarndi language, but that nevertheless he understood the gist of the discussion overall.[873] Mr Irving's recollection was that strongly held views were expressed by some of the directors including Ms Cheedy, Mr Stanley Warrie and Ms Tootsie Daniel to the effect that 'we've got to be able to protect our country'.[874] He accepted that what was said was to the effect that anyone who supported WMYAC in the June 2015 ballot prior to the s 66B application would not support the YAC board in protecting Yindjibarndi country.[875] I understood that to be a reference to the view taken by YAC's board that entry into the FMG Agreement was not in the best interests of YAC, so that to permit that to occur would not protect Yindjibarndi native title rights in respect of the Yindjibarndi #1 claim.
2. Finally, in assessing the evidence as to how the directors dealt with the applications in this category, the broader context cannot be overlooked. The membership decisions made on 29 June 2016 followed the decision of Le Miere J earlier in 2016 that the directors had used their power to admit members for an improper purpose, namely to influence the vote at the next general meeting, and to ensure support for the then incumbent board of directors. Notwithstanding the criticism by Le Miere J of the then directors' conduct, it is apparent that the CEO of YAC, and the directors who were elected subsequent to that decision, remained of the view that WMYAC members and supporters continued to seek to join YAC because they wanted to take control of YAC, and that if they did so, they would seek to enter into the FMG Agreement. Mr Mack's evidence in cross examination was that following the decision of Le Miere J:[876]

Maybe we were still we still want to, you know, continue the fight with ... FMG and John Sandy case.

1. He agreed that the directors thought that they 'still had to continue the fight'[877] and that that was despite what Le Miere J had found in the Sandy [No 2] case. Mr Mack's response to that line of questioning suggested that he was of the view that that 'fight' was justified given the conduct of WMYAC:[878]

yes. And, yes, what you know, what's Wirlumurra doing to our corporation, or the corporation we represent?

1. Mr Woodley's evidence demonstrated that the membership applications received from WMYAC's solicitors prior to the directors' meeting on 29 June 2016 were submitted as part of the continuing attempts by WMYAC to take control of YAC. He said:[879]

I believe that this membership drive is ongoing. The basis for my belief is the applications YAC received in May this year from Integra Legal. ... Integra Legal resubmitted 44 applications and lodged 86 new ones. I do not believe that 130 people approached Aileen Sandy and Sylvia Allan and asked them to lodge the applications on their behalf. I believe that Wirlumurra is behind them.

1. I find that in June 2016, YAC continued to approach membership applications from individuals regarded as members or supporters of YAC as part of a continuing attempt by WMYAC and its supporters to take control of YAC for the purpose of securing entry into the FMG Agreement.

Conclusion in relation to the application of the Birdarra Law criterion and the loyalty criterion

1. Counsel for the defendants submitted that in relation to the rejection of applicants in this category, Mr Mack's evidence established that the directors were not satisfied that Mr Rodney Adams and others followed Birdarra Law because the directors believed that those persons were trying to take over YAC, replace it as the Applicant in the Yindjibarndi #1 claim, and then enter into an agreement with FMG that would benefit only a minority of Yindjibarndi people, and that this was not Nyinyadt.[880]
2. Apart from the evidence given by Mr Mack, there was no other evidence to suggest that supporting the objectives and policies of YAC, as determined by the board of YAC from time to time, was in fact a requirement for following Birdarra Law. Nor was there any evidence (apart from that given by Mr Mack) that any person who supported entry into the FMG Agreement did not, for that reason, follow Birdarra Law. Having regard to the way in which the other witnesses (for the plaintiffs and for the defendants) described Birdarra Law in their evidence, I agree with the submission of counsel for the plaintiffs[881] that Mr Mack's evidence on these issues represented his own personal, and unique, view of what it means to follow Birdarra Law. In addition, having regard to the evidence of Ms Cheedy, I do not accept that Mr Mack's evidence in this particular respect can be considered evidence of the views held by the directors of YAC as a whole.
3. In my view, Ms Cheedy's evidence supports the conclusion that it is more likely than not that when the directors (apart from Mr Mack) refused membership to those applicants in this category, their primary reason for doing so was because the directors concluded that the applicants did not meet the loyalty criterion that is, that they would not support the objectives and policies of the incumbent board of YAC. I find that the directors treated that conclusion as indicating that each of the applicants did not follow Birdarra Law, without turning their minds to what Birdarra Law required, and then relied upon that conclusion to determine that they were not satisfied that the applicant did follow Birdarra Law.
4. At least in relation to the applicants whom the directors regarded as supporters of WMYAC, I find that the directors' conclusion that these applicants did not meet the loyalty criterion was entirely attributable to their support for WMYAC. Furthermore, in the case of those who, like Mr Rodney Adams, and Payden Sandy and Emerson Sandy, were understood to have participated in, or supported, the s 66B application, I find that that was an additional reason why they were refused membership on the basis that they did not meet the loyalty criterion.
5. Furthermore, having regard to the evidence of Mr Mack, Ms Cheedy, and Mr Irving, and to the other evidence as to the directors' objectives in adopting the Pending Applications Policy, to which I referred above at [572] [573], I find that the directors' motivation was to deny membership of YAC to those persons whom they identified as supporters of WMYAC, and who they regarded as supporting YAC's entry into the FMG Agreement, so as to prevent the supporters of WMYAC from taking control of YAC.
6. In making these findings, I make no findings about what it means to follow Birdarra Law, or as to the requirements or principles of Birdarra Law. It is not necessary or appropriate to make any such findings in this case.

1. There was little direct evidence in relation to the 10 applications which had not previously been considered or determined, and which were in the envelope sent to the defendants at some stage before 29 June 2016, but which they say was misplaced.
2. Ms Cheedy was unable to recall the applications that were lost.[882] Counsel for the plaintiffs described that evidence as 'extraordinary',[883] to the extent that it suggested that '[b]etween the date of the pleading and the date of Ms Cheedy giving evidence apparently no-one had informed the Chairperson of YAC of the facts pleaded by YAC in the case'.[884] There is some merit in the submission, albeit that it was rather overstated. The fact that Ms Cheedy knew nothing of the missing applications was surprising. However, in my view, that fact is more consistent with the inexperience and lack of sophistication of the directors of YAC, and their tendency to leave matters of the day to day administration of YAC (and to some extent, other more significant matters such as the conduct of this litigation, with its complexities) to others, including the CEO and YAC's lawyers.
3. Mr Mack was unable to say where the 10 applications had gone and explained that he only dealt with those membership applications that Mr Davies included in the papers for the directors' meeting on 29 June 2016.[885] Counsel for the plaintiffs submitted that Mr Mack's evidence in this respect was evasive,[886] because Mr Mack said he was unable to recall whether the board had determined any membership application since 29 June 2016, when in fact four applicants were admitted to membership as recently as 4 November 2016.[887] I do not accept that Mr Mack was deliberately evasive on this particular issue. My impression was that he was focused on trying to recall anything about the missing applications, and genuinely did not know anything about them, and that his answer concerning more recent applications reflected confusion rather than evasiveness.
4. Mr Irving recalled that the envelope containing the applications was discovered after the directors' meeting on 29 June 2016, somewhere in the offices of YAC or Juluwarlu.[888] His understanding was that of the 44 applications contained in the envelope, many of them had already been considered.[889]
5. The letter dated 22 July 2016, from Mr Philip Davies, the contact officer at YAC, to the Registrar sheds some light on what occurred and how the 10 applications were dealt with by YAC. Mr Davies advised that[890]

Unfortunately, 11 applications that may have been received by YAC before 1 June 2016 did not become known to YAC until well after the directors' meeting on 29 June 2016 because they were in an envelope that was misplaced in YAC and only discovered in the last few days, and therefore the names of the 11 applicants do not appear in the YAC membership applicant spreadsheet. The 11 unknown applications were included in a batch of 44 membership applications that were posted to YAC by Integra Legal on 26 May 2016. Thirtythree of these 44 applications were known because they had been left undecided by the directors on a previous occasion and so they were dealt with at the directors' meeting on 29 June 2016.

However, of the 11 unknown applications, 10 of the applicants ... had previously been rejected by the Yindjibarndi membership committee as at 28 July 2014. ... The final outstanding one of the 44 applications, being Mr Alex Ranger, was previously considered accepted by the YAC members' subcommittee and is included in the anthropologists' final report, which is attached to this letter. I don't know why he had not been added at an earlier time to the YAC member list, but I will check to ensure Alex is not deceased, and if not, I will add his name to the YAC member list online early next week.

1. Mr Mack was asked whether, since 29 June 2016, the board had met to consider those 10 applications which had been misplaced, and which had not been determined by YAC's board. He was unable to remember whether the board had determined any membership applications since 29 June 2016,[891] nor was he able to explain why it was that the board had not made a decision in respect of those 10 applications. His evidence was that 'as a director he saw nominations and accepted them or rejected them but did not deal with the paperwork'.[892]
2. I find that while YAC received 44 applications for membership at some stage prior to 29 June 2016, the envelope containing those applications was misplaced and not discovered, so that the directors did not consider those applications at their meeting on 29 June 2016. I also find that of the 44 applications, 34 had previously been determined. However, as there was no evidence to suggest that the remaining 10 applications for membership had been considered by the directors after 29 June 2016, I find that those 10 applications remained outstanding as at the date of trial.

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. It is useful, at this point, to recall precisely what the plaintiffs' case is, in respect of the decisions made on 29 June 2016. The plaintiffs' case is that the directors' conduct on 29 June 2016, in accepting 26 applications for membership and rejecting 125 applications from WMYAC members, was oppressive conduct contrary to s 1661(1)(d) and (e) of the CATSI Act. The plaintiffs contend that the directors acted in a biased fashion that was oppressive to a member or members of YAC, because the effect of those decisions was to dilute the voting power of members of YAC who supported WMYAC and to shore up support for the then board of directors of YAC. The plaintiffs did not seek to prove that every applicant whose application was rejected was entitled to membership. Rather, although they adduced some evidence to demonstrate that some of the applicants appeared to meet the criteria for membership, or were perceived by some members of YAC as meeting those criteria, their focus was on the directors' application of membership policies.[893] The plaintiffs submitted that those policies were drafted in such a way as to ensure that no member or supporter of WMYAC could satisfy those requirements and thereby gain membership of YAC,[894] and that the policies were not applied in good faith, but rather were applied with a view to ensuring that WMYAC members were excluded from membership.
2. The plaintiffs also contended that YAC's delay in issuing letters to at least some of the rejected applicants until 22 July 2016 constituted a failure to comply with the requirements of the second compliance notice, in that notice of the directors' decision to reject those applications was not given within a reasonable time of their decision, and that that was contrary to s 144-10(6) and (7) of the CATSI Act.[895] The plaintiffs contend that that contravention of the CATSI Act constituted conduct caught by s 166-1(1)(d) and (e) of the CATSI Act also.[896]
3. The defendants' position, in summary, is that the conduct of the directors on 29 June 2016 cannot be regarded as a biased exercise of their power to admit members, and that their conduct was not oppressive for the purposes of s 1661(1)(d) or (e) of the CATSI Act. They rely on the fact that the board was not the same board as was the subject of criticism by Le Miere J in Sandy [No 2], that the directors accepted some applications and rejected others, and that of the 146 applications which were refused, the directors took into account only the membership criteria for YAC and discretionary matters which were referable to YAC's objects. The defendants submitted that there was no basis for asserting that that policy was not formulated and adopted in good faith, or that it was applied in a biased and discriminatory way.[897] The defendants submitted that the content of the policy which was applied was entirely consistent with YAC's membership rules in the YAC Rule Book, and with its objects.[898]
4. In relation to the persons whose applications were rejected on the basis that they did not identify as Yindjibarndi, and were not regarded by the directors as Yindjibarndi, counsel for the defendants accepted that there were differences of view in the evidence as to whether it was consistent with the Yindjibarndi way to follow more than one Aboriginal group, but submitted that that was to be expected in any oral culture.[899] Counsel for the defendants also submitted that the explanation for why existing members of YAC were also members of the Ngarluma, when on 29 June 2016 applicants were refused membership on the basis of that they were members of another native title group or PBC, was that many of those people were accepted for membership by the Elders' Sub-committee under the Settlement Deed and the subsequent mediation,[900] and that at that time, YAC's policy was that a person could become a member simply if they had a Yindjibarndi ancestor.[901]
5. In relation to those rejected on the Birdarra Law criterion or the loyalty criterion, counsel for the defendants submitted that there was 'ample evidence to demonstrate that in rejecting this group of applications the directors did so because they honestly and reasonably believed that these applicants were not following and upholding Birdarra law and would not support and uphold YAC's objectives'.[902] They also pointed out that had the s 66B application succeeded, YAC would have been stripped:[903]

of its only functions (to hold on trust and to manage the native title rights and interests in the Daniel determination area and to act as the agent of the Applicant for the Yindjibarndi #1 claim), taken from it its primary source of income (the Participation Agreement) and consistent with the case advanced by FMG in the Yindjibarndi #1 claim, conceded that the Yindjibarndi People possess no more than nonexclusive native title rights and interests in the Yindjibarndi #1 claim area. Those actions, if successful, would have destroyed YAC and would have substantially weakened the Yindjibarndi People's negotiation position over mining and compensation for mining, on the Yindjibarndi #1 claim area.

1. Their case was that in those circumstances, the directors acted reasonably to exclude from membership those persons who they did not believe would act in the best interests of YAC and in accordance with its policies and objectives.
2. I am unable to accept the defendants' submissions. In my view, the plaintiffs have established that the conduct of the directors in determining the membership applications on 29 June 2016 was oppressive for the purposes of s 1661(1)(d) and (e) of the CATSI Act. I have reached that view for the following reasons.
3. First, I am satisfied that the decision to refuse membership to WMYAC supporters on the identification criteria, the Birdarra Law criterion, or the loyalty criterion, constituted the exercise by the directors of their power for an improper purpose.
4. The power being exercised was the power to admit persons to membership, which was to be exercised by reference to the criteria for membership in rule 3.1 of the Rule Book, and subject to the directors' residual discretion to refuse membership to a person who otherwise met those criteria.[904] I discussed that power above at [221] and [225] [226].
5. As I have found, the evidence established that there was a difference of view within YAC's members as to whether YAC should enter into an agreement in terms similar to the FMG Agreement. The question whether YAC should enter into an agreement with FMG in relation to the area the subject of the Yindjibarndi #1 claim, in advance of the determination of the Yindjibarndi #1 claim, and if so, on what terms, was an issue over which there were clear differences of opinion as to what would be in the best interests of the Yindjibarndi people. The evidence was that a number of Yindjibarndi people who were in favour of entry into the FMG Agreement were members or supporters of WMYAC. The evidence established that the existing membership of YAC comprised persons who were members of WMYAC. The evidence also established that the directors of YAC were opposed to entry into the FMG Agreement. If the directors refused membership to those persons who were also members or supporters of WMYAC, it followed that the directors would be able to reduce the prospect that WMYAC members or supporters would achieve the necessary majority to appoint the directors or YAC, or to secure a vote in favour of entry into the FMG Agreement.
6. I have found that the directors decided to exercise their power to admit members to YAC by reference to the Pending Applications Policy (which drew on the new policies which were adopted on 9 June 2016). I have found that the directors adopted the Pending Application Policy and the new policies for the same objective, namely to provide a basis for YAC's directors to refuse an application made by any person who was a member or supporter of WMYAC, and who it was presumed would take a different view from that of the directors in relation to entry into the FMG Agreement.
7. I have found that the directors did not genuinely apply the identification criteria within the Pending Application Policy. I am satisfied that the real reason why at least some of the applicants in that category of applicants were refused membership was that they were considered to be members or supporters of WMYAC. I have also found that the directors (apart from Mr Mack) purported to apply the Birdarra Law criterion as well as the loyalty criterion, but in fact refused applicants in this category because they did not meet the loyalty criterion. I have found that in doing so, their conclusion that those applicants did not meet the loyalty criterion was entirely attributable to their support for WMYAC, and in the case of those who had participated in the s 66B application, they were also refused membership on that basis. I am satisfied, in all the circumstances, that the directors' objective in refusing membership to those persons identified as supporters of WMYAC was to prevent WMYAC members and supporters from attaining a majority of the membership of YAC, so as to be in a position to determine the constitution of the board, or otherwise to bring about YAC's entry into the FMG Agreement, or an agreement in similar terms.
8. To exclude applicants for membership simply because those persons might pursue YAC's adoption of policies with which the directors did not agree would not be a proper exercise of the power to admit members.[905]
9. In my view, the plaintiffs have established that the decisions made by the directors to refuse membership on the identification criteria, or the Birdarra Law and loyalty criteria, were decisions of a kind that no board acting reasonably or rationally could have made. (That conclusion is not referable to the merits of the terms of the FMG Agreement, save that it recognises that the merits of that Agreement were matters of legitimate differences of view.[906]) At its most fundamental, the conduct of the directors in refusing the membership applications was designed to stifle dissent, within YAC's membership, from their view that entry into the FMG Agreement was not in the best interests of YAC. The merits of that agreement were, however, matters about which there were strongly held differences of view within YAC's membership. In my view, it is in the interests of all members of YAC to be able to freely debate issues of such significance to the Yindjibarndi people as whether to enter into ILUAs with mining companies, and if so, on what terms, and to seek to persuade others of their own views about the merits of such proposed entry, with a view to galvanising support for their preferred course of action.
10. In my view, the plaintiffs have established that the directors did not act in good faith, and that their approach to the membership applications was such that no reasonable board could not have made them. I am satisfied that by applying their membership power in that way, the directors' conduct was contrary to the interests of the members as a whole, contrary to s 166-1(1)(d) of the CATSI Act.
11. Secondly, and contrary to the submission of counsel for the defendants, this was not a case where there was an organised attempt, by a group having interests utterly inimical to the objects of YAC, to take control of YAC. That is not to deny that that was the view held by the directors of YAC. There is no doubt that they genuinely considered that WMYAC's supporters were trying to join YAC in sufficient numbers to elect directors to the board of YAC, or at least to secure sufficient votes to pass a motion at a general meeting in support of executing the FMG Agreement, or an agreement in similar terms. However, I am not persuaded that support for the FMG Agreement can properly be characterised as a position which was inimical to the objects of YAC, so as to warrant the directors taking the step of endeavouring to exclude WMYAC members and supporters from membership of YAC.
12. The objects of YAC are set out at [21] [22] above. They include providing relief from poverty, misfortune and destitution among Aboriginal people, advancing and promoting the wellbeing of Aboriginal people, providing economic benefits to Aboriginal people, and protecting, preserving and advancing the traditions, laws, culture and customs, economic development and interests of Aboriginal people. Those objects can clearly be pursued in a variety of ways. It cannot be said that those who thought that the best way to advance YAC's objects was to pursue the FMG Agreement, or an agreement in similar terms, had interests which were utterly inimical to the objects of YAC.
13. Counsel for the defendants submitted that WMYAC and its supporters 'intended to strip YAC of its functions and take its major source of income'.[907] In my view, that submission overstated the position as at 2016. By then, the s 66B application had been rejected by the Federal Court. As for the FMG Agreement, nothing in the terms of that Agreement sought to strip YAC of its functions, nor did that Agreement create any obligation to remove YAC as the Applicant in the Yindjibarndi #1 claim, or as the PBC in respect of the Daniel determination.
14. I have discussed the terms of the FMG Agreement above at [145] [151]. It is true that under the FMG Agreement, compensation payable under that Agreement was to be paid to WMYAC, rather than to YAC. In contrast, if a determination of native title were made in the Yindjibarndi #1 claim area, any compensation which might be payable for FMG's activities within that area which interfered with those native title interests would be paid to a corporation nominated to act as the PBC and trustee of the native title rights of the common law holders. The assumption appears to have been that that corporation would be YAC. To that extent, the payment of compensation to WMYAC, rather than to YAC, could be seen to deprive YAC of compensation which might otherwise have been payable to it, or at the least, from which it might benefit. However, nothing in the FMG Agreement would have deprived YAC of any existing entitlement to compensation.
15. In so far as compensation for any activities by FMG in the Daniel Determination Area was concerned, there was no evidence to suggest that entry into the FMG Agreement (or a similar agreement) would see YAC deprived of any compensation which it was already receiving (there being no evidence that YAC had an existing agreement with FMG in respect of the Daniel Determination Area). However, entry into such an agreement would have the result that any future compensation for activities by FMG in the Daniel Determination Area would not be paid to YAC, but would be paid to WMYAC.
16. To my mind, the continued assumption, in 2016, by YAC's directors, that if the FMG Agreement (or an agreement in similar terms) were entered into, that that Agreement would require the payment of compensation to WMYAC, rather than to YAC, had an air of unreality about it. If WMYAC supporters were admitted to membership of YAC in sufficient numbers to constitute a majority, so as to be able to take control of the Board, or otherwise to obtain sufficient support for a motion in favour of entry into an agreement consistent with the FMG Agreement, it is far from clear why it would then be necessary or appropriate for any payment of compensation under such an agreement to be made to WMYAC rather than to YAC. The only reason why the payment of compensation, under the FMG Agreement as drafted, was to WMYAC, was because the members of WMYAC had negotiated the agreement, and they did not, at that stage, constitute a majority of the membership of YAC. But if those in favour of the FMG Agreement secured a majority of YAC's membership, and control of the board, and were then free to secure YAC's entry into an agreement with FMG, it is far from clear why, at that stage, it would be necessary for the payment of compensation under such an agreement to be made to another ATSI corporation, like WMYAC, rather than to YAC itself.
17. Counsel for the defendants also submitted that if WMYAC's supporters were able to compel YAC to enter into the FMG Agreement, then 'YAC and the native title claimants would have surrendered all of their valuable negotiation rights under the NT [Act] and in return would have received nothing'.[908] It is true that entry into an agreement with FMG, for the provision of compensation for mining-related activities in the Yindjibarndi #1 claim area, in advance of the determination of that claim, would involve a judgment that it was more advantageous to the Yindjibarndi people to receive compensation in advance of the time frame within which they would otherwise receive compensation following a determination of native title. It would also necessarily involve a judgment about the value of the rights not yet recognised as native title rights under the NT Act which were the subject of that bargain. However, those were matters of commercial judgment. While minds may (and did) differ about whether, and on what terms, such a decision should be made, a decision of that kind could not, in my view, be described as inimical to the interests of YAC's membership (namely its present and future members).
18. Thirdly, in my view, YAC's conduct was oppressive to a minority of the members of YAC, namely to those existing members of YAC who were also members and supporters of WMYAC, and who did not support the incumbent board. While much of the focus of the evidence at the trial was on the directors' concern that WMYAC supporters would support entry into the FMG Agreement, that was not the only concern that members of YAC, who were also members of WMYAC, had expressed about YAC and its management. As I discussed above at [122] and following, their concerns extended to the financial management of YAC, and the management style of Mr Woodley as its CEO. To deny membership of YAC to persons who might take a different view from the incumbent directors of YAC, and their supporters, about the financial management, and approach, of YAC, meant that it would be more difficult for those members in the minority to have their concerns addressed. From that perspective, the directors' approach to members did not constitute a fair or reasonable approach to the position supported by a minority of its members. The directors' conduct was, for that reason, also oppressive conduct within s 1661(1)(e) of the CATSI Act.
19. However, I am not persuaded that YAC's delay in issuing letters to at least some of the rejected applicants until 22 July 2016 constituted a breach of s 144-10(6) and (7) of the CATSI Act, or oppressive conduct under s 166-1(1) of the CATSI Act. Given the number of applications involved, I am not persuaded that the period of just over three weeks between the date of the decision on membership, and the date on which the letters appear to have been sent, constitutes a failure to comply with the requirement under the CATSI Act, and YAC's Rule Book, to advise an applicant in writing of the reason for rejecting their membership application. In reaching that view, it is relevant that there is no suggestion that that delay was regarded by the Registrar as a contravention of the second compliance notice. No basis has been established for taking a different view. In my view, this conduct was not conduct which could, in the circumstances, be properly described as oppressive conduct under either s 166-1(1)(d) or (e) of the CATSI Act.
20. I turn to consider the question of relief.

What relief, if any, should be granted in respect of this oppressive conduct?

1. In my view, relief should be granted in respect of this conduct. However, I am not persuaded that the appropriate relief is the appointment of a receiver. My reasons for that view are set out in detail below, when I consider the question of the overall relief which should be granted for all oppressive conduct.
2. I turn next to consider the various allegations made by the plaintiffs concerning the conduct of meetings of YAC and the administration of YAC's finances.

7.2 Alleged failure to conduct or manage meetings properly and alleged improper administration of YAC's finances

1. The plaintiffs allege that a number of meetings of YAC were not properly or fairly conducted, so as to amount to conduct which was not in the interests of the members as a whole, or which was oppressive to a member or members, for the purposes of s 1661(1) of the CATSI Act.
2. The conduct of YAC at some of those meetings is also alleged to constitute an instance of improper administration of YAC's finances.
3. The defendants submitted that none of the matters relied upon by the plaintiffs was conduct within s 166-1(1) of the CATSI Act.[909]
4. Before turning to consider each of the plaintiffs' allegations it is appropriate to briefly recall the requirements of the CATSI Act in relation to meetings of ATSI corporations.
5. The CATSI Act contains a number of requirements in relation to meetings of ATSI corporations. Ordinarily, 21 days' notice of a general meeting must be given to the members.[910] The notice must set out the details of the meeting and the general nature of the meeting's business.[911] The purpose behind the requirement for notice is that 'the members enjoy a full and proper opportunity by notice to consider the business of the meeting before they attend and then vote upon that business.[912]
6. A general meeting must be held for a proper purpose.[913]
7. In addition to any other meetings held by an ATSI corporation during each year, and subject to any extension granted by the Registrar,[914] the corporation must hold an AGM within 5 months of the end of the financial year.[915] The business of the AGM may include consideration of reports required to be laid before the meeting pursuant to the CATSI Act, the election of directors, and the appointment of the corporation's auditor.[916]
8. The corporation must keep a minute book in which it records, amongst other things, the proceedings and resolutions of all general meetings, and of directors' meetings.[917]

(a) Failure to conduct meetings properly - Failure to explain YAC's annual financial report or provide members an opportunity to ask questions or make comments at the AGM held on 21 March 2012; and

Improper administration of finances - Failure to explain YAC's annual financial report or provide members an opportunity to ask questions or make comments at the AGM held on 21 March 2012

1. As the two of these allegations arise from the same meeting, and allege the same conduct, it is convenient to deal with them together.
2. The plaintiffs' case is that at YAC's AGM on 21 March 2012, Mr Davies tabled YAC's annual financial report for the year to 30 June 2011, but did not go through YAC's accounts or explain them. They say that neither Mr Davies, nor the Chairperson, invited questions from members, and that members were not given a reasonable opportunity to ask questions, or to make comments about, the management of YAC, or to ask the representative of YAC's auditor any questions. They say that consequently, discussion of the financial report was hindered.[918]
3. The plaintiffs say that YAC's failure to provide members with the opportunity to ask questions or to make comments about the management of YAC constituted a breach of s 201-165 of the CATSI Act, and that YACs failure to permit members the opportunity to ask questions of YAC's auditor or the auditor's representative was a breach of s 201-170 of the CATSI Act.[919]
4. The defendants deny that YAC's conduct constituted a breach of its statutory obligations under s 201-165 or s 201-170 of the CATSI Act, or conduct of the kind described in s 166-1(1) of the CATSI Act. The defendants say that at the meeting, Mr Davies tabled copies of YAC's financial report for the year ending 30 June 2011, and proposed that if no one wanted to go through the reports, he would not go through them, and the meeting would proceed to the next item of business. The defendants say that no one objected to that proposal, or sought to ask any questions. The defendants deny that discussion at the meeting was hindered in any way. They acknowledge that members were not invited to ask questions about, or comment on, the management of YAC at this point during the meeting, and they acknowledge that neither YAC's auditor, nor a representative of the auditor, attended the meeting. However, the defendants say that over the course of the meeting as a whole, members were given an opportunity to ask questions or comment on YAC's management. The defendants also rely on the fact that Mr Greg McIntyre SC attended the meeting to represent WMYAC members, and that he did not raise any objection on the basis that members were not given a reasonable opportunity to ask questions or make comments on the management of YAC.[920]

1. The AGM of YAC was held on 21 March 2012 at the 50 Cent Hall in Roebourne. The meeting, which lasted for approximately two hours, was recorded on video, and the video, and a lengthy transcript of it, was in evidence.[921]
2. One of the items of discussion at that meeting concerned the accounts of YAC. Mr Phillip Davies tabled copies of the audited and signed YAC accounts for the year ending 30 June 2011.[922] What occurred is set out in the following portion of the transcript of the video recording of that meeting:[923]

Michael Woodley: We're go to number nine on the agenda now, and that's to present the YAC management account and Phil will do that.

Phil Davies: What I did before was I printed off fifteen copies of the YAC management accounts. There's fifteen copies over on the table for anyone who'd like to read them. I'll just table them and that's been audited by our auditor David Swords and our accountant Garry Slee. And I think, um, it's probably too much to take it in now, because you might of have just seen them. There's certainly a few to be read and they're certainly at the office for anyone, for any member who wants to read them and they're also on the ORIC website for anyone to read. Um, put simply I'd say that the audited accounts say exactly what has been going on in YAC over the last year. Ah, we had them ready ...

From the floor: Can you use the microphone?

Phil Davies: Yep, sorry about that and we had them ready for the last AGM so they been sitting around for a while and they're just available for anybody who would like to read them. Yep. If there is no one that wants to talk anymore about that, we will just go on to the next one which is number ten, which is to elect the directors.

1. No questions were asked in relation to the accounts, and the meeting proceeded to deal with the next item of business.
2. It is clear that the financial report was tabled, but no motion was moved that the report be accepted. It is apparent that Mr Davies appreciated that members of YAC were unlikely to be in a position to ask any questions about the report until they had had the opportunity to consider it. That is consistent with the approach taken that the report was simply tabled, and that copies were made available so that members could take a copy of the report away to consider. Mr Greg McIntyre SC, who was at the meeting representing WMYAC members, took a copy of the report.[924]
3. Nothing in the evidence indicated that discussion of the accounts was prevented or hindered in any direct way by any officer or director of YAC. Moreover, it is apparent from the transcript of the video recording of the meeting that the meeting was one in which there had been a free ranging and lengthy discussion of various items on the agenda, involving a number of the members who were present, and without any particular formality involved; there is no indication that any member felt reticent about asking a question or making a comment.
4. In my view, it is significant that none of the plaintiffs' witnesses gave evidence that they were inhibited or prevented from asking a question about the report which was tabled. Ms Allery Sandy's evidence was that Mr Davies tabled the YAC management accounts at the meeting, but did not go through them;[925] however she did not go on to say that she was prevented from asking a question or making a comment about them.
5. As I have already mentioned, Mr McIntyre SC, who was acting for WMYAC, was present at the meeting. At the outset of the meeting, he intervened to clarify the approach which was to be taken at the meeting to confirm the minutes of the previous AGM for YAC, which was held on 15 December 2010, and which had prompted the application for injunctive relief which was granted by Master Sanderson (and to which I earlier referred). Against that background, it is not insignificant that Mr McIntyre did not make any objection to the manner in which the financial report was tabled, or to Mr Davies' proposal that if no one wished to ask any questions, or make any comments, then the discussion would move to the next agenda item.
6. It was apparent from the submissions of counsel for the plaintiffs that their case was not that discussion of the accounts was positively hindered, but rather that there was no proper opportunity given to the members to consider, and then to ask questions about, the accounts. Counsel for the plaintiffs submitted that when Mr Davies tabled the financial report he 'did not invite discussion'[926] and that

Supplying accounts at (and during) a meeting held 9 months after the conclusion of the accounting period is a manifest failure to comply with YAC's obligations. A member would have to pick up the accounts, read them, formulate questions and ask them simultaneously with attending at a meeting. The nature of the meeting was such that the suggestion this afforded a reasonable opportunity for members to ask questions about the financial affairs of their corporation is untenable.

1. In so far as counsel appeared to place some emphasis on the fact that the AGM was being held nine months after the conclusion of the accounting period, it must be borne in mind that the AGM was to have been held on 30 November 2011, but YAC was restrained by an order of this Court from proceeding with the AGM, in view of the dispute over the cancellation of memberships on 15 December 2010.
2. In so far as counsel sought to suggest that there was an unfairness in tabling the accounts and then expecting members to be in a position to ask questions, that is, with respect, an unfair characterisation of what occurred. It is apparent from the excerpt of the transcript that I have reproduced above that Mr Davies appreciated that members at the AGM would need the opportunity to take a copy of the report away and consider it. In those circumstances, Mr Davies' proposal, that unless members had an (immediate) question or comment, the discussion move on, reflected the unlikelihood that the members would be in a position to discuss the report at that time.
3. Counsel for the defendants relied on the fact that after tabling the report, Mr Davies said 'if there is no one that wants to talk anymore about that, we will just go on to the next one which is [agenda] number ten'. He submitted that no one objected to this proposal or asked any questions. He also referred to the fact that Mr McIntyre SC, who was representing WMYAC members, took a copy of the report, and that a copy of the report was attached to the minutes of the meeting. The implication appeared to be that the members of YAC were able to obtain the report, in order to consider its contents, if they so chose.

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. There is no doubt about the importance of ensuring that the members of a corporation have the opportunity to ask questions about, or to comment on, the management of the corporation, and that they are provided with a report, each year, of the finances of the corporation. The importance of those matters is reflected in s 20165 and s 20170, and in div 333 of pt 7 of the CATSI Act (which deals with financial reports).
2. The plaintiffs contended that YAC's conduct of the meeting constituted a breach of s 201165 and s 201-170 of the CATSI Act. Section 201165 requires that the chair of an AGM 'must allow a reasonable opportunity for the members as a whole at the meeting to ask questions about or make comments on the management of the corporation'. It is an offence not to do so. Having reviewed the entire transcript of the AGM, I am not persuaded that there is any merit in counsel's submission. As for s 201-170, it provides that if an ATSI corporation's auditor or auditor's representative is at an AGM, the chair of the meeting must allow a reasonable opportunity for the members as a whole to ask the auditor or their representative questions relevant to the audit. It is an offence not to do so. There was no evidence to suggest that YAC's auditor, Mr Swords, or his representative, was present at the AGM. There is no merit in counsel's submission.
3. In my view, the plaintiffs have not established that YAC's conduct in relation to the tabling of the financial report at the AGM, was conduct which was not in the interests of the members as a whole, or oppressive, or unfairly prejudicial to a member or members of YAC, for the purposes of s 166-1(1)(d) or (e) of the CATSI Act. There was no evidence to support the conclusion that the discussion at the AGM in relation to the management of YAC was hindered in any way. Members were given the opportunity to take a copy of the financial report away and consider it. There is nothing to suggest that they were prevented from asking questions or making comments at that stage, although clearly the expectation was that before asking any questions or making any comments, members would first need to consider the report.

1. Even if I am wrong in this conclusion, I would not have granted relief under s 1665 of the CATSI Act, or otherwise, in respect of the conduct the subject of complaint by the plaintiffs. The AGM was held over four years before the trial. The conduct the subject of complaint has not been shown to have any ongoing adverse consequences for the members. No relief could have been granted in respect of that conduct which would have had any practical utility.

(b) Discussion about financial issues hindered at the AGM held on 10 September 2014; and

Issues arising out of the Korda Mentha report tabled at the AGM held on 10 September 2014

1. As these two allegations arise from the same meeting, it is convenient to deal with them together.

1. It was not in dispute that under the Settlement Deed (to which I have already referred), YAC was obliged to instruct a forensic accountancy firm nominated by the plaintiffs to investigate the financial affairs of YAC for the period 1 December 2010 to 15 September 2013 and to prepare a report. It was not in dispute that YAC instructed Korda Mentha to do this work, and it produced a report (Korda Mentha Report).
2. The plaintiffs say that the Korda Mentha Report related to an investigation concerning payments made by YAC to Juluwarlu, to officers, members, employees, consultants or corporations related to Juluwarlu, and in respect of any invoices in the sum of, or exceeding, $100,000.[927] The plaintiffs say that the conclusions reached in the Korda Mentha Report included that there were deficiencies in relation to the approval process for payments made by YAC which were indicative of poor governance and lack of financial control within YAC's accounts payable function; that the benefits received from the payments made by YAC, and the question whether those payments were in the interests of YAC, were difficult to assess given their subjective nature and the information provided by YAC; and that in certain instances there was insufficient consideration by YAC's board as to whether costs to be incurred were reasonable, a lack of sufficient supporting information on how payments were to be used, and a lack of information being provided to YAC at the time of approval to assess benefits received.[928]
3. The plaintiffs' case is that the Korda Mentha Report was presented at YAC's AGM on 10 September 2014. The plaintiffs allege that discussion about issues arising from the Korda Mentha Report was hindered, and not facilitated, by YAC and the chairperson,[929] in the following ways:[930]

(i) the Korda Mentha Report dealt with numerous issues, including that payments by YAC to Juluwarlu during the period 1 December 2010 to 15 September 2013 were in the sum of approximately $3.4 million, and during the discussion of the Korda Mentha Report, a member of YAC, Charmaine Adams, asked the Chairperson and the board of YAC on numerous occasions to explain why YAC's money was paid to or going to Juluwarlu;

(ii) in response to Ms Adams' questions, Mr Woodley, the CEO of YAC, responded to the effect that the questions Ms Adams raised were out of order, and that the issue she raised should be deferred because he had a presentation later in the meeting to explain it; the Chairperson also stated the matter in question was coming up for discussion later in the agenda; and discussion of that issue, and further discussion of it by Ms Adams, was brought to an end, or was limited, and was not then facilitated;

(iii) a member of YAC, Mr Paul Aubrey, asked whether Korda Mentha had established any fraudulent use of YAC's money, and in response, Mr Woodley indicated that he would be giving the meeting a report about the payments made by YAC to Juluwarlu, and discussion of the issue raised by Mr Aubrey, including further discussion of it by Mr Aubrey, was brought to an end, or was limited, and was not then facilitated;

(iv) Mr Woodley did not make a presentation to the meeting or give an explanation to address the issues raised by Ms Adams or Mr Aubrey, and the Chairperson did not return the meeting to either of those issues;

(v) Mr Woodley did not make any substantive report to the AGM in his capacity as the CEO of YAC, despite the fact that the meeting agenda included an item of business for the presentation of a reports by the CEO; and

(vi) in the circumstances, YAC and the Chairperson failed to do all things reasonably necessary to facilitate a full discussion at the AGM of issues arising from the Korda Mentha Report.

1. The plaintiffs also referred to the conclusions reached in the Korda Mentha Report. They say that that Report made a number of general observations, including that:[931]

(i) 61% of YAC payments during the period the subject of the Korda Mentha investigation were made to Juluwarlu or related parties; there were numerous relationships between YAC and Juluwarlu at both the member and board level; the approvals for payments to Juluwarlu and related parties were generally at the board level of YAC rather than from the members; and that the management agreement between YAC and Juluwarlu, which also covered expense reimbursements, was only approved by members in December 2009, which was more than a year after the management agreement commenced;

(ii) individual approvals for payments by YAC to Juluwarlu were authorised by individuals who also acted in an official capacity in Juluwarlu, and those payments often related to payments by Juluwarlu to other related parties, such as the reimbursement of expenses to members of the Juluwarlu board and wages to related individuals;

(iii) particular approvals (for example, the management agreement in respect of expense reimbursements) did not provide specificity as to what was covered by the approval; and

(iv) a total of $826,980 was expended on payments made prior to an invoice being received, $282,048 was expended on payments without any specific board approval and $922,930 in payments was expended prior to board approval.

1. The plaintiffs also contended that the Korda Mentha report concluded that there were deficiencies in relation to the approval process for payments made by YAC which were indicative of poor governance and lack of financial control within YAC's accounts payable function; that it was difficult to assess what benefits were received from the payments made by YAC, and whether they were in the interests of YAC, because of their subjective nature and the information provided by YAC; and that in certain instances there was insufficient consideration by YAC's board as to whether costs to be incurred were reasonable, a lack of sufficient supporting information on how payments were to be used and a lack of information being provided to YAC at the time of approval to assess benefits received.[932]
2. While the plaintiffs did not contend, at least in express terms, that the findings made by Korda Mentha provided a basis for a finding that YAC had engaged in conduct that fell within s 1661(1) of the CATSI Act, it appeared that the plaintiffs sought to rely on the findings in the Korda Mentha Report, together with a number of other matters to which the plaintiffs' referred in this part of the PSIFC, as evidence of improper administration of YAC's finances. It appeared that the plaintiffs' case was that the overall improper administration of YAC's finances, when considered in conjunction with the allegations of ongoing noncompliance by YAC with the requirements of the CATSI Act and the Rule Book, amounted to conduct that fell within s 166-1(1) of the CATSI Act.[933]
3. The defendants deny that discussion of the Korda Mentha Report was hindered, and not facilitated, by YAC, and that in the circumstances, members had a reasonable opportunity to discuss the Report and ask questions about it at the meeting. They say that:[934]

(i) YAC posted copies of the Korda Mentha Report to members with the notice for the meeting;

(ii) two representatives from Korda Mentha attended the meeting to give a presentation and answer questions;

(iii) YAC staff and directors were available at the meeting to answer questions;

(iv) the Korda Mentha presentation went for about 15 minutes;

(v) the discussion and questions went for nearly an hour;

(vi) any person who wanted to make a comment or ask a question had the opportunity to do so;

(vii) the discussion and questions ended only when there were no more comments or questions from meeting attendees; and

(viii) the meeting resolved to table the Report and acknowledge the recommendations given by the Korda Mentha representatives in their report to the meeting.

1. The defendants also say that there were questions raised by members about payments made by YAC to Juluwarlu, and that Mr Woodley indicated that he would answer those questions when he gave his CEO's report, however Mr Woodley did not give his report at the meeting.[935]
2. The defendants say that the fact that Mr Woodley did not give his CEO's report and address questions concerning payments from YAC to Juluwarlu does not mean that YAC and the Chairman hindered discussion of the Korda Mentha Report.[936]
3. The defendants' case, overall, was that none of the findings in the Korda Mentha Report, either of themselves, or considered in conjunction with the other conduct on which the plaintiffs relied in relation to the meetings and financial administration of YAC, constituted conduct within s 166-1(1) of the CATSI Act.[937]
4. Furthermore, the defendants say that during their presentation at the AGM, Korda Mentha's representatives made suggestions for good governance and improved financial control of YAC, and that YAC acted on those suggestions, including by appointing KPMG as its accountants.[938] The defendants particularised the action YAC has taken, at the suggestion of Korda Mentha, as follows:[939]

(i) YAC terminated its management agreement with Juluwarlu in or about June 2013 and appointed its own financial controller (Chris Harrison) in or about July 2013 to perform its accounting function. When Mr Harrison left YAC in 2015, YAC appointed KPMG to perform its accounting function;

(ii) With the assistance of KPMG, YAC now prepares full year budgets for approval by its board. YAC's management is required to manage the business of YAC within the constraints of the budget and explain to the board on a monthly basis any variances over the budget expenditure;

(iii) With the assistance of KPMG, YAC has implemented a procedure to segregate the authorisation of payments and the processing of such payments;

(iv) With the assistance of KPMG, YAC has implemented a system requiring approval by one its directors for the issue of vouchers to Yindjibarndi community members to spend YAC funds; and

(v) YAC has required Juluwarlu to prepare supporting documentation for costs which are invoiced to YAC (such as costs for running camps on country, cultural research work and rental of premises to YAC).

1. I make the following findings concerning the facts relevant to this aspect of the plaintiffs' case.

1. It was a term of the Settlement Deed that the plaintiffs would nominate a suitable, qualified and available forensic accountancy firm to YAC and that YAC and the plaintiffs would instruct that firm to conduct an investigation and prepare a written report into aspects of the financial affairs of YAC for the period from December 2010 until 15 September 2013. In particular, those investigations were to consider what authority was provided by the board of directors of YAC for any payments made to Juluwarlu or any person related to Juluwarlu, what authority was provided by the board of directors of YAC for any other payments made by YAC in respect of any invoice in the sum of at least $100,000, what benefits were received by YAC for any payments made falling within either of those categories, and whether each such payment was consistent with the interests of YAC.[940]
2. The plaintiffs nominated Korda Mentha as the accounting firm to conduct the investigation.[941]
3. The Korda Mentha Report contained a number of findings, including the following. Korda Mentha ascertained that 61% of YAC's payments during the period of its investigation were made to Juluwarlu, or related parties, and that there were numerous relationships between YAC and Juluwarlu at both the member and board level. In ascertaining the authority provided for those payments, Korda Mentha observed that 'YAC's board provided some level or approval for the majority of the payments'.[942] However, Korda Mentha concluded that 'the identified deficiencies in relation to the approval process for payments made by YAC are indicative of poor governance and lack of financial controls within YAC's accounts payable function'.[943] As to the benefits received from the payments and whether they were in the interests of YAC, Korda Mentha concluded that it was difficult to make an assessment, given the subjective nature of the payments, and the information provided by YAC. Based on the information provided, however, Korda Mentha observed that in certain instances there was:[944]

1. Insufficient consideration by YAC's board as to whether costs to be incurred were reasonable. 2. A lack of sufficient supporting information on how payments were to be used.

1. A lack of information being provided to YAC at the time of approval in order to assess benefits received.

1. An AGM for YAC was held on 10 September 2014 at the 50 Cent Hall in Roebourne. The minutes record that 219 YAC members attended the meeting in person. A large number of proxies were also received.[945]
2. A copy of the Korda Mentha Report was sent to all members of YAC at the same time as the notice of the AGM.[946]
3. Prior to the AGM, members of YAC who were also members of WMYAC prepared a document entitled 'Important questions for YAC to answer' for consideration at the AGM. Those questions concerned YAC's financial management, arising from issues raised in the Korda Mentha Report.[947]
4. At the commencement of the AGM, Ms Michelle Adams gave that document to Ms Charmaine Adams, who in turn passed it to the chair of the meeting, Mr Middleton Cheedy.[948]
5. The meeting was also attended by two representatives of Korda Mentha. The minutes of the meeting indicate that the meeting commenced at 10.37 am and concluded at 7.36 pm. About fifteen minutes after the AGM commenced, it was suggested that the item of business involving a presentation by the representatives of Korda Mentha should be dealt with before other business. That suggestion appears to have been adopted by consensus.
6. Ms Adams' evidence was that those attending the meeting were told that after the presentation by two members of Korda Mentha, everybody would have an opportunity to ask questions and have their say.[949]
7. Save where I indicate to the contrary, the following summary of what occurred at the meeting is drawn from my observation of the video recording of the AGM. Korda Mentha's representatives gave a powerpoint presentation in which they outlined what they were asked to investigate, how they carried out the investigation, their findings, and the suggestions and recommendations made in the Korda Mentha Report. That presentation took approximately 15 minutes.
8. Questions were then invited from YAC's members in relation to the Korda Mentha Report. A very lengthy discussion ensued, in which numerous questions were asked and comments made by members of YAC. Although those persons are not identified in the video recording, it appears that they included Ms Charmaine Adams and Ms Michelle Adams. The questions and concerns raised by YAC members with the Korda Mentha representatives concerned matters such as: the amount paid by YAC to Juluwarlu; concerns about staff of YAC, including Mr Woodley and Mr Davies, being employees of Juluwarlu, and approving payments from YAC to Juluwarlu; where the money went once it was paid to Juluwarlu; what financial records of YAC were disclosed to Korda Mentha; why YAC money was always being paid to Juluwarlu; the cost of the Korda Mentha Report; what benefits YAC members received for the money paid to Juluwarlu; questions about properties owned by Juluwarlu; whether the directors were aware of the money being paid to Juluwarlu; and Mr Woodley's alleged conflict of interest and what was being done about it. At times, the tenor of the questions and the responses from Mr Woodley became quite heated, and during the discussion, there were also exchanges between the members of YAC sitting in the body of the meeting.
9. Ms Michelle Adams' evidence was that 'Mr Woodley interrupted the discussion whenever anyone asked where YAC's money had gone',[950] that Mr Woodley, Mr Irving and Mr Harrison continued to interrupt the discussion throughout question time, and that Mr Woodley shouted at members, including her, and said 'don't ask questions about fraud, because you'll get yourself in trouble'.[951]
10. At several stages during the discussion, when questions were asked about why YAC money was being paid to Juluwarlu and for what purpose, and about the total revenue received by Juluwarlu from YAC and the properties it owned, Mr Woodley (and on one occasion, Mr Cheedy) told the audience that those matters were outside the scope of the Korda Mentha Report, and that Mr Woodley would deal with them later in the meeting when he presented his report. Korda Mentha's representatives also confirmed that their investigation did not consider those matters.
11. After all questions were exhausted, Ms Michelle Adams move that the Korda Mentha Report be tabled, and accepted by YAC, including any recommendations in it. There was a discussion about whether the Korda Mentha Report contained any recommendations, before eventually a resolution was passed simply to table the Korda Mentha Report.
12. There was then a short break of a few minutes. Discussion of the agenda items then resumed, commencing with a very lengthy process of dealing with apologies and proxies. There was then a discussion about other matters, including the membership of YAC, and the process in the Elders' Sub-committee. At about 4.30 pm, Mr Woodley asked the members if they would like to adjourn the meeting, given the hour, but no one moved a motion to that effect. The discussion then turned to the election of directors. That also was a very lengthy process as the meeting considered the nomination of individual directors, rather than blocks of nominations. Eventually, Ms Michelle Adams and Mr Aubrey moved a motion to adjourn the meeting to a later date. Ms Adams' evidence was that she proposed the adjournment because she was concerned that the process for considering nominations was not being done correctly and that there was 'a lot of shouting going on'.[952] The motion to adjourn was lost. A large number of the members of YAC then walked out of the meeting. (According to the minutes, approximately 31 members then left.[953]) Further discussion in relation to the election of the directors ensued, before the meeting closed.
13. Ms Michelle Adams[954] and Ms Allery Sandy[955] gave evidence that the questions WMYAC members had prepared, and the questions asked by members of YAC, were not answered, either during the presentation by Korda Mentha's representatives, or at any later stage in the meeting.
14. In his evidence, Mr Woodley acknowledged that YAC members had asked questions about the funds being paid by YAC to Juluwarlu. Mr Woodley's evidence was that he was[956]

happy to explain that relationship in my CEO presentation, which I did not have the opportunity to give. I did not get the opportunity because Charmaine [Adams] wanted to have a conversation about how to bring Yindjibarndi people back together. That conversation happened.

1. I should say that Mr Woodley's explanation for why he did not get to present his CEO's report is not accurate. The position instead was that not all of the business on the agenda for the AGM was completed before the meeting was adjourned, due to the lateness of the hour.
2. I turn next to consider the evidence relating to the defendants' contention that YAC took action to remedy the deficiencies in financial administration identified in the Korda Mentha Report.

YAC's response to the deficiencies in financial administration identified in the Korda Mentha Report

1. As I have already noted, the defendants claimed that they took a variety of actions at the suggestion of Korda Mentha, which in summary were as follows. First, the defendants claimed that YAC appointed Mr Chris Harrison, and later, KPMG to perform its accounting work. Secondly, the defendants claimed that with the assistance of KPMG, annual budgets are now prepared for consideration by the board, so that YAC's business is conducted within the constraints of that budget. Thirdly, the defendants claimed that with the assistance of KPMG, a system for approval of the issue of vouchers to Yindjibarndi community members has been implemented. Finally, the defendants claimed that YAC now requires Juluwarlu to prepare supporting documentation for the costs which its invoices to YAC.
2. Most of the defendants' particulars as to how YAC had implemented the suggestions in the Korda Mentha Report were not supported by the evidence. Counsel for the defendants conceded in closing that 'the evidence does not establish particulars 1, 4 and 5'[957] of the particulars to [162] of the DSIFC.
3. That concession was properly made. In crossexamination, Mr Woodley was asked about the defendants' claims that YAC implemented the suggestions made in the Korda Mentha Report. It was apparent from his evidence that YAC had not, in fact, implemented those suggestions in the terms pleaded in [162] in the DSIFC. Mr Woodley said:[958]

We took great, I think, direction from Korda Mentha's Report in terms of what where the corporation was - was heading in terms of our financial matters. We thought we set up a structure for the corporation to run its own affairs. ... The report obviously gave some suggestions in terms of how we managed the affairs of the corporation, but we thought that we had a structure that would carry on in terms of how we would, you know, better represent the people. We didn't [have] a problem with any of the any of the with the financial issues that we were we were working towards and developing and and making sure that we had a process with employing a chief financial officer to manage our affairs from an accounting point of view. And, look, we took it on, but we had some other plans in terms of how we thought what would be in the best interests for the corporation.

1. Mr Woodley was asked whether it was the case that YAC had not, in the end, implemented any of the Korda Mentha suggestions, because the board thought it had structures in place already that adequately dealt with financial governance. Mr Woodley's answer was:[959]

Well, I can't tell you for sure in terms of what was implemented. That's obviously something that we left to our CFO and the accountant team, to make sure that they take some of those points that Korda Mentha raised, but to also put in a structure that would - that was satisfying to the corporation at the time in terms of how it was managing our affairs.

1. As for the defendants' claim that in response to the Korda Mentha Report, YAC had terminated its management agreement with Juluwarlu in about June 2013 and appointed its own financial controller, Mr Chris Harrison, in about July 2013 to perform YAC's accounting functions, Mr Woodley acknowledged that that claim was not correct, because the Korda Mentha Report was not delivered until 10 September 2014.[960] Mr Woodley also acknowledged that while Mr Harrison's employment was terminated in November 2014, KPMG was not engaged to carry out YAC's accounting functions until, at the earliest, 3 July 2015.[961] (In the interim between the termination of Mr Harrison's employment and the engagement of KPMG, YAC's accounting functions were performed by a bookkeeper.[962])
2. Mr Woodley was also asked whether it was the case that the appointment of KPMG was made in response to a suggestion in the Korda Mentha Report. His evidence was:[963]

Well, not in so many words, no. I mean, at the end of the day, the board had [its] ideas in terms of what we was going to do in terms of employing a professional accounting firm to manage our affairs.

1. As for the defendants' claim that YAC has implemented a system requiring approval by one of its directors for the issue of vouchers to Yindjibarndi community members to spend YAC funds, Mr Woodley acknowledged that the system for the authorisation of one director for the issuing of vouchers had been implemented prior to the appointment of KPMG, and that KPMG had not assisted YAC to implement that system prior to its appointment as YAC's accountants.[964]
2. Finally, in relation to the defendants' claim that YAC had required Juluwarlu to prepare supporting documentation for those of its costs which are invoiced to YAC, the defendants' witnesses did not make good that claim. Mr Woodley's evidence in respect of payments to Juluwarlu was vague and unpersuasive. He clearly sought to distance himself from the authorisation of any payment to Juluwarlu, as his wife, Lorraine Coppin, was the chief executive officer of Juluwarlu. At the same time, he claimed that 'everything is done above board in terms of what what the project YAC want Juluwarlu to do',[965] and 'there are ... documents ... that support it'.[966] However, when asked about examples of payments made to Juluwarlu and the supporting documentation in relation to those payments, he had no specific knowledge of those matters.
3. Ms Cheedy's evidence did not advance the matter. She claimed that YAC required Juluwarlu to prepare supporting documentation for the costs that they invoiced to YAC,[967] however, she was unable to specify the form of that supporting documentation,[968] and she accepted that in respect of payments made to Juluwarlu in October 2014, the board did not seek or obtain any documentation showing the expenses incurred which were the subject of the invoices.[969]
4. Nevertheless, it was clear that on about 30 June 2015, YAC engaged KPMG to act as its accountants and tax agents.[970] KPMG's responsibilities now include maintaining YAC's accounting records, preparing its financial statements (commencing with the year ending 30 June 2015), and providing services including bookkeeping, processing invoices, credit cards and other forms of expenditure, payment of creditors, preparation of pay roll and budgeting.[971]
5. In addition, KPMG personnel now attend all board meetings of YAC to present the financial position for each period and for the year to date, and to address performance against budget and respond to any questions of the board regarding financial matters.[972] KPMG staff also now 'interact with management frequently in a managerial capacity providing face to face feedback on the financial position of YAC'.[973] Mr Sheard, a partner of KPMG who gave evidence for the defendants, confirmed that during the 2017 financial year he had

observed the management of YAC work to stay within the budget agreed with management and approved by the board. This is a strong control over what is essentially a 'small business'.[974]

1. Mr Sheard's evidence was that while KPMG had not designed systems to address matters which were the subject of comment by Korda Mentha, they had designed systems to assist in preparing YAC's accounts,[975] such as a payroll system.[976]
2. In terms of the payment of accounts and processing such payments, Mr Sheard's evidence was that KPMG processed all payments that were to be made by YAC, which included raising payment vouchers for approval by YAC's management.[977] (Mr Sheard had no knowledge of whether there was a requirement that, before payment was made, two directors approve the payment.[978])

Did YAC's conduct at the AGM on 10 September 2014 constitute conduct of the kind described in s 166-1(d) or (e) of the CATSI Act?

1. Counsel for the plaintiffs submitted that the evidence established that Ms Adams' questions were not addressed, and that the Defendants did not dispute that Mr Woodley failed to answer questions concerning YAC's payments to Juluwarlu.[979]
2. Counsel for the defendants submitted that neither YAC nor the Chairperson hindered discussion of issues arising out of the Korda Mentha Report at the AGM, that the discussion of the issues lasted for nearly an hour, in which members had the opportunity to ask questions, that the discussion ended only when there were no more questions, and that in the circumstances

members had a reasonable opportunity to discuss the report and ask questions about it at the meeting. The fact that Michael Woodley did not give his chief executive officer's report and address questions concerning payments from YAC to Juluwarlu in it does not mean that YAC and the Chairman hindered discussion of the report.[980]

1. I am unable to accept the submission of counsel for the defendants. YAC's conduct of the meeting by the Chairperson, and by Mr Woodley was, in my view, conduct which was oppressive to those members of YAC who had raised concerns about YAC's payments to Juluwarlu. It is apparent that the most pressing issues for discussion at the AGM were the matters related to the Korda Mentha investigation, but which were not investigated by Korda Mentha, such as why and for what reason YAC had paid money to Juluwarlu, and the means within YAC for reviewing the propriety of claims for payment made by Juluwarlu, having regard to the actual, or perceived, conflicts of interest on the part of those officers of YAC (who were also employed by Juluwarlu) who authorised payment to Juluwarlu. It was apparent that this was no minor issue in terms of the quantum of payments involved, or in terms of the degree of concern within YAC's membership about that issue.
2. In so far as Mr Woodley, and the Chairperson, sought to defer discussion of those issues until later in the meeting, that conduct clearly hindered the discussion of members' concerns. No reason was advanced either at the meeting, or in evidence about why the questions and concerns of members had could not have been dealt with immediately, whether by Mr Woodley, or by any of the other directors of YAC.
3. In my view, the concerted approach by Mr Woodley, assisted by the Chairperson, to defer the discussion of those issues particularly in circumstances in which, as the meeting progressed, items on the agenda took a lengthy time to resolve, progress through the agenda was slow, and it must have become apparent that there was a real risk that there would not be sufficient time to return to those issues was unfair to the members of YAC who had raised those concerns. In my view, a reasonable Chairperson of the meeting, and a reasonable CEO, would have dealt with the concerns raised by responding to them immediately. The failure to do so had the consequence that the real issues of concern to members were simply not dealt with. That approach fell short of the standard of reasonable conduct which the members were entitled to expect in the conduct of YAC's affairs.
4. In my view, YAC's conduct of the AGM in this respect was conduct of the kind described in s 1661(1)(e) of the CATSI Act.
5. I turn, next, to consider the balance of the plaintiffs' allegations arising from the Korda Mentha Report.

Are the findings in the Korda Mentha Report evidence of conduct of YAC which fell within s 166-1(1) of the CATSI Act?

1. In my view, the plaintiffs cannot rely on the findings in the Korda Mentha Report as evidence of improper administration of YAC's finances. No evidence was adduced in support of the findings made in that Report.
2. The defendants' counsel submitted that the Korda Mentha Report was 'only relevant in the sense that in accepting its contents, the YAC directors at the time can be taken to be aware of the deficiencies in financial administration identified in it'.[981] They also submitted that

the fact that YAC did not act on the Korda Mentha suggestions ... or that the evidence does not establish some of the Defendants' particulars do not mean that YAC has engaged in conduct caught by s 1661 of the CATSI Act. ... To make that proposition good there would need to be a factual foundation to establish that YAC has breached a law, which the Korda Mentha report does not do. In any event, this is not the plaintiffs' case.'[982]

1. I accept that submission.
2. The evidence which established that YAC has engaged KPMG to act as its accountants, however, is relevant to the question of relief. I return to that issue later in these reasons.

1. In my view, notwithstanding that YAC's response to questions about the Korda Mentha Report, and associated issues, at the AGM on 10 September 2014 constituted conduct which fell within s 166-1(1)(e) of the CATSI Act, I am not persuaded that any relief should be granted in respect of that conduct. The conduct in question is now long past and there was no suggestion that that particular instance of oppression was continuing.
2. I will, however, return to consider this conduct further below, in determining whether YAC's conduct, overall, warrants the making of orders under s 166-5 of the CATSI Act, or other relief.

(c) Failure to report to members in compliance with subdivision 333A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2007 (Cth) due to the failure to prepare consolidated accounts

1. All ATSI corporations are obliged to keep written financial records that record and explain their transactions and financial position and performance, and which would enable true and fair financial reports to be prepared and audited.[983]
2. Upon the registration of an ATSI corporation, the Registrar must register the corporation as a small, medium or large corporation.[984] That decision may be altered in subsequent years.[985] That decision determines the reporting requirements which apply to the particular corporation.
3. The decision whether to register an ATSI corporation as a small, medium or large corporation is made by reference to the 'consolidated gross operating income' (CGOI) of the corporation and the entities it controls (if any), and the value of its assets and those of any entities it controls, at the end of each financial year.[986]
4. YAC is registered as a medium corporation for the purposes of the CATSI Act.[987]
5. An ATSI corporation is required to prepare reports, including such reports as are required by the regulations made under the CATSI Act (CATSI Regulations).[988] Subdivision 333A of the CATSI Regulations applies to small and medium corporations with a CGOI (of the corporation and any entities it controlled) of $5,000,000 or more. At all relevant times, the CATSI Regulations required that all corporations of that kind, and all medium ATSI corporations with a CGOI of less than $5,000,000, prepare a financial report and a directors' report for the financial year.[989]
6. Those financial statements were required to contain the financial statements required by the Accounting Standards (as defined[990]). Significantly for present purposes, if compliance with those Standards required the corporation to include other entities in its financial statements, the corporation was required to prepare consolidated financial statements for the corporation and its entities.[991]
7. The financial report of an ATSI corporation must be prepared in accordance with all applicable Accounting Standards capable of application to an ATSI corporation, regardless of whether or not the corporation would be regarded as a 'reporting entity' within the meaning of that term in the Accounting Standards.[992]
8. The CATSI Regulations also required that an ATSI corporation must have its financial report audited by an independent auditor, and that the corporation must obtain an auditor's report.[993]
9. Financial reports and auditor's reports must be lodged with the Registrar within three months of the end of the financial year.[994]
10. Critical for present purposes is what it means for an entity to 'control' another entity. That term is defined in s 689-25 of the CATSI Act. Relevantly for present purposes, an entity 'controls' another entity 'if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies'. Determining whether that is so requires consideration of the practical influence that the first entity can exert (rather than the rights it can enforce), and any practice or pattern of behaviour affecting the second entity's financial or operating policies, even if that involves a breach of an agreement or a breach of trust.[995]
11. In determining whether an ATSI corporation 'controls' another entity, the Accounting Standards made for the purposes of s 295(2)(b) of the Corporations Act 2001 (Cth) are applied.[996] In consolidating the gross income and value of the ATSI corporation and any entities it controls, the Accounting Standards in force at that time are to be applied.[997]

1. The plaintiffs allege that without taking into consideration the income of Yindjibarndi Wealth, Yindjibarndi Capital and Yurra (which the plaintiffs say did not publish any financial reports), YAC's CGOI exceeds $5,000,000 and accordingly YAC must comply with subdivision 333A of the CATSI Regulations.[998] The plaintiffs based that conclusion on the following information provided in financial reports published for the financial year ending 30 June 2015:[999]

(i) YAC reported a gross operating income of $4,486,724 in its annual financial report;

(ii) YCCL as trustee for YPCT reported a gross revenue of $3,587,300 in its annual financial report; and

(iii) YCCL as trustee for YCT reported a gross revenue of $2,316,966 in its annual financial report.

1. The plaintiffs say that Accounting Standard AASB 10 Consolidated Financial Statements (AASB 10) requires an entity that is a parent entity, namely YAC, to present consolidated financial statements, subject to limited exceptions (which they say do not apply to YAC). The plaintiffs' case is that in every annual financial report prepared by YAC since June 2013 after the incorporation of Yindjibarndi Capital, Yindjibarndi Wealth, Yurra and YCCL (collectively, YAC's Subsidiaries) YAC has failed to prepare consolidated accounts in breach of the requirements of the CATSI Act, and in circumstances where YAC's Subsidiaries own significant assets and operate significant businesses.[1000]
2. The plaintiffs noted that YAC's General Purpose Financial Report for the financial year ending 30 June 2015 stated that:

YAC is a not-for-profit private sector entity and consequently is reporting under the reduced disclosure framework for eligible corporations that currently prepare general purpose financial statements. The Corporation has applied the Australian financial reporting standard AASB 1053 Tier 2 reduced disclosure level.

However, the plaintiffs say that applying the Tier 2 reduced disclosure requirements under Australian Standard AASB 1053 (AASB 1053) does not exempt YAC as a parent company from preparing consolidated financial statements. The plaintiffs' case was that AASB 1053 did not absolve YAC from the requirements of AASB 10 (which I discuss further below), with the result that YAC is required to prepare consolidated financial statements including YAC's Subsidiaries.[1001] (I did not understand the operation of AASB 1053 to be in issue. The focus was on the requirements of AASB 10.)

1. The plaintiffs contend that the members of YAC have no information in relation to the financial position or performance of Yindjibarndi Wealth, Yindjibarndi Capital and Yurra, because the accounts of YAC's Subsidiaries have never been disclosed to members of YAC. The plaintiffs also contend that the consequence of YAC's failure to prepare consolidated financial statements is that members of YAC are not adequately informed as to how YAC's money and the money of YAC's Subsidiaries is actually spent.
2. The plaintiffs contend that YAC's conduct in failing to provide financial information to its members, its lack of transparency about the group of companies' financial affairs, and the mismanagement of YAC's financial affairs amounts to conduct captured by s 1661(1)(d) and (e) of the CATSI Act.[1002]
3. The defendants did not admit that subdivision 333A of the CATSI Regulations applied to YAC in the 2015 financial year. However, the defendants accepted that reg 333-10.01 and reg 33315.01(4) of the CATSI Regulations applied to the financial report it prepared for the 2015 financial year, which meant that it was required to prepare its financial report in accordance with all applicable Accounting Standards.[1003]
4. In the course of their closing submissions, counsel for the defendants made clear that 'an implication of YAC's contentions is that it does not contend that it prepared its financial statements in accordance with all applicable accounting standards'.[1004] However, they submitted that 'YAC's contentions are not an admission that YAC has failed to prepare its financial statements in accordance with all applicable accounting standards'.[1005]
5. The defendants contended that in relation to the 2014 and 2015 financial years, YAC relied on its accountants and auditors to prepare its financial statements in accordance with applicable Accounting Standards. The defendants say that in those circumstances, any failure by YAC to prepare its financial statements in accordance with all applicable Accounting Standards was not conduct that fell within s 1661(1) of the CATSI Act.[1006] Counsel for the defendants submitted that 'it would be an absurd result if the directors of YAC were required, in effect, to form their own view about the meaning of the Australian Accounting Standards'.[1007]

1. In this section of my reasons, I deal with the following matters:

(ii) Overview of the requirements of the relevant Accounting Standards;

(iii) The approach taken in YAC's accounts for the financial years ending 30 June 2014 and 30 June 2015;

(vi) Whether the financial statements of YAC for the 2014 and 2015 financial years complied with AASB 10; and

(vii) The directors' role in the preparation of YAC's reports, and their reliance on YAC's accountants and auditors.

1. The plaintiffs and the defendants called expert accounting witnesses (experts) to give evidence in relation to the operation of AASB 10 in respect of the various entities which the plaintiffs claimed were controlled by YAC. Each of the witnesses provided reports. The plaintiffs relied on the evidence of Ms Susan OldmeadowHall[1008] and the defendants relied on the evidence of Ms Nikki Shen.[1009]
2. The defendants also relied on the evidence of Mr Graeme Sheard.[1010] Mr Sheard is a partner in the Perth Office of KPMG Australia (KPMG). Mr Sheard was crossexamined by counsel for the plaintiffs.
3. Mr Mack, Ms Cheedy and Mr Woodley were also crossexamined by counsel for the plaintiffs in relation to their knowledge of the Accounting Standards, and of their responsibilities in relation to the preparation of YAC's accounts.

(ii) Overview of the requirements of the relevant Accounting Standards

1. AASB 10 establishes principles for the preparation and presentation of consolidated financial statements when an entity controls one or more other entities. AASB 10 requires an entity (known as the parent) that controls one or more other entities (the subsidiaries) to present consolidated financial statements for itself and all of its subsidiaries. While there are certain exceptions to that requirement, it was not suggested that any of those were applicable in this case.
2. Under AASB 10, the criterion which determines whether an entity must present consolidated financial statements for itself and other entities is that of 'control' by one entity over another. AASB 10 requires that 'an investor, regardless of the nature of its involvement with an entity (the investee), shall determine whether it is a parent by assessing whether it controls the investee'.[1011] The considerations which inform that determination are set out in the following clauses of AASB 10:

(6) An investor controls an investee when it is exposed, or has rights, to variable returns from its involvement with the investee and has the ability to affect those returns through its power over the investee.

(7) Thus, an investor controls an investee if and only if the investor has all the following:

(a) power over the investee ...;

(b) exposure, or rights, to variable returns from its involvement with the investee ...; and

(c) the ability to use its power over the investee to affect the amount of the investor's returns ... .

(8) An investor shall consider all facts and circumstances when assessing whether it controls an investee. The investor shall reassess whether it controls an investee if facts and circumstances indicate that there are changes to one or more of the three elements of control listed in paragraph (7) ... .

(9) Two or more investors collectively control an investee when they must act together to direct the relevant activities. In such cases, because no investor can direct the activities without the cooperation of the others, no investor individually controls the investee. Each investor would account for its interest in the investee in accordance with the relevant Australian accounting standards, such as AASB11 Joint Arrangements, AASB128 Investments in Associates and Joint Ventures, AASB9 Financial Instruments.

1. What it means for an investor to have power over an investee is explained in AASB 10 in the following way:

(10) An investor has power over an investee when the investor has existing rights that give it the current ability to direct the relevant activities ie the activities that significantly affect the investee's returns.

(11) Power arises from rights. Sometimes assessing power is straightforward, such as when power over an investee is obtained directly and solely from the voting rights granted by equity instruments such as shares ... . In other cases, the assessment will be more complex and require more than one factor to be considered, for example, when power results from one or more contractual arrangements.

1. The requirement that the investor have exposure, or rights, to variable returns from its involvement with the investee is explained in AASB 10 in the following way:

(15) An investor is exposed, or has rights, to variable returns from its involvement with the investee when the investor's returns from its involvement have the potential to vary as a result of the investee's performance. The investor's returns can be only positive, only negative or both positive and negative.

(16) Although only one investor can control an investee, more than one party can share in the returns of an investee.

1. Finally, the ability of an investor to use its power to affect the amount of the investor's returns is explained in AASB 10 in the following way:

(17) An investor controls an investee if the investor not only has power over the investee and exposure or rights to variable returns from its involvement with the investee, but also has the ability to use its power to affect the investor's returns from its involvement with the investee.

1. AASB 10 provides examples by way of guidance for how each of these criteria may be assessed. For example, AASB 10 provides that consideration of a number of factors may assist in making the determination as to whether an investor exercises control over an investee. This includes the purpose and design of the investee; what the relevant activities of the investee are (for example, in order to identify the relevant activities of the investee, how decisions about those activities are made, who has the current ability to direct those activities, and who receives returns from those activities);[1012] how decisions about those activities are made (for example, how decisions are reached as to operating and capital decisions, including budgets, and the appointment and remuneration of key management personnel or service providers);[1013] whether the rights of the investor give it the current ability to direct the investee's relevant activities; whether the investor is exposed or has rights to variable returns from its involvement with the investee; and whether the investor has the ability to use its power over the investee to affect the amount of the investor's returns.[1014]
2. In order to determine whether the rights of the investor give it the current ability to direct the relevant activities, AASB 10 provides examples of such rights. They include, but are not limited to, rights in the form of voting rights, rights to appoint, reassign or remove members of the investee's key management personnel who have the ability to direct the relevant activities, rights to appoint or remove another entity that directs the relevant activities, rights to direct the investee to enter into, or veto any changes to, transactions for the benefit of the investor and other rights (such as decisionmaking rights specified in the management contract) that give the holder the ability to direct the relevant activities.[1015]
3. Similarly, for the purpose of determining whether an investor is exposed, or has rights, to variable returns from its involvement with the investee, AASB 10 provides examples of the sorts of returns which might be involved. They include dividends, other distributions of economic benefits such as interests from debt securities issued by the investee, and changes in the value of the investor's investment in the investee; remuneration for servicing an investee's assets or liabilities; residual interests in the investee's assets and liabilities on liquidation of that investee; and access to future liquidity that an investor has from its involvement with an investee and returns not available to any interest holders such as might be achieved by combining the assets of the investor with those of the investee to achieve economies of scale or costs savings, or to enhance the value of the investor's other assets.[1016]
4. For the purpose of determining whether an investor has the ability to use its power over the investee to affect the amount of the investor's returns, AASB 10 contains a number of provisions providing guidance in how the exercise of power, as between an investor and an investee, may be assessed. AASB 10 provides that when an investor with decisionmaking rights assesses whether it controls an investee, it shall determine whether it is a principal or an agent. Sometimes the principal's power may be held and exercisable by an agent.[1017] The scope of the decisionmaking authority will also be relevant. That will require consideration of the activities that are permitted according to the decisionmaking agreements and as specified by law, and the discretion that the decisionmaker has when making decisions about activities.[1018] Further, substantive rights held by other parties may affect a decisionmaker's ability to direct the relevant activities of an investee. For example, AASB 10 provides that[1019]

when a single party holds substantive removal rights and can remove the decisionmaker without cause, this, in isolation, is sufficient to conclude that the decisionmaker is an agent ... . In addition, the greater the number of parties required to act together to exercise rights to remove a decisionmaker and the greater the magnitude of, and variability associated with, the decisionmaker's other economic interests ie remuneration and other interests, the less the weighting that should be placed on these factors.

1. AASB 10 provides specific guidance for how its terms should be applied in the case of notforprofit entities.[1020] These guidelines recognise that an investor need not have financial investment in an investee in order to be in a position of control with respect to that investee. AASB 10 points out that 'in general terms, an investor and an investee are merely entities that have a relationship in which control of one entity (the investee) by the other (the investor) might arise'.[1021]
2. In so far as the criterion of power over the investee is concerned, Appendix E to AASB 10 explains how that criterion might operate in the context of a not-for-profit entity. It provides:[1022]

As an example, a not-for-profit investor would have power over an investee when the investor can require the investee to deploy its assets or incur liabilities in a way that affects the investee's returns (for example, in providing goods or services to the investor or other parties that assists in achieving or furthering the investee's objectives).

... For many not-for-profit entities, rights arising from administrative arrangements or statutory provisions will often be the source of power. Assessing the purpose and design of an investee will assist an investor to identify who has power over the investee, ie the current ability to direct the relevant activities ... .

1. In so far as rights may give an investor power over an investee, Appendix E to AASB 10 notes that[1023]

In relation to not-for-profit investors, additional examples of such rights include:

[a] rights to give policy directions to the governing body of the investee that gives a holder the ability to direct the relevant activities of the investee;

[b] rights to approve or veto operating and capital budgets relating to the relevant activities of the investee.

A not-for-profit investor can have power over an investee even if it does not have responsibility for the daytoday operation of the investee or the specific manner in which prescribed functions are performed by the investee.

1. In so far as the exposure, or rights, to variable returns from an investee are concerned, the examples given in AASB 10 in relation to notforprofit entities emphasise that[1024]

the broad scope of the nature of returns encompasses financial, nonfinancial, direct and indirect benefits, whether positive or negative, including the achievement or furtherance of the investor's objectives.

An investor's exposure, or rights, to variable returns from its involvement with an investee may give rise to indirect, nonfinancial returns, such as when achieving or furthering the objectives of the investee contributes to the objectives of the investor. For example, the provision of goods and services by the investee to its beneficiaries may affect the extent to which the investor's social policy objectives are furthered.

1. Finally, the guidelines in relation to not-for-profit entities note that there are a variety of ways in which an investor may have an ability to use its power over an investee to affect the amount of an investor's returns. One example given is where an investor can direct the investee to work with the investor or to engage in particular activities to further the investor's objectives. Appendix E contains a number of implementation examples demonstrating how all of the factors relevant to assessing control may apply in the practical operation of notforprofit entities.[1025]

(iii) The approach taken in YAC's accounts for the financial years ending 30 June 2014 and 30 June 2015

1. The evidence was that YAC's accounts for the 2014 and 2015 financial years did not consolidate the accounts of any related entities.
2. At least in respect of the 2015 financial year (the first year in which it appears that KPMG prepared YAC's accounts), the failure to include the accounts of any related entities appears to have reflected the considered view of KPMG's staff that no consolidation was required. Mr Sheard's evidence was that 'the applicability [of AASB 10] is a matter that has gone to the highest parts of KPMG and ... we have formed a view ... that it should not be consolidated'.[1026] However, there appears to have been some movement away from that view. Mr Sheard acknowledged that in the draft accounts for the 2016 financial year, the accounts of Yindjibarndi Wealth and Yindjibarndi Capital had been consolidated with those of YAC.[1027]
3. Counsel for the plaintiffs submitted that no weight should be attached to Mr Sheard's evidence, because the opinion given was not Mr Sheard's opinion; the person who formed the relevant opinion was not identified; the basis for the opinion was not disclosed; and, in any event, the content of the draft financial report for 2016 indicated that the view was no longer held.[1028] I do not accept that no weight should be attached to Mr Sheard's evidence. The evidence was adduced in the crossexamination of Mr Sheard. I am not persuaded that it was unreliable. The evidence simply confirmed what was, in any event, apparent from the evidence of the expert witnesses, namely that there is room for different views in relation to the question of consolidation of YAC's accounts.

(iv) The expert evidence - what was not in issue

1. Ms OldmeadowHall and Ms Shen met and conferred, and, as a result of that conferral, provided a joint memorandum outlining the areas of agreement and disagreement.[1029] The experts also gave evidence in a concurrent session which was of assistance in further highlighting the reasons why they disagreed.
2. Ms OldmeadowHall and Ms Shen agreed that, for the 2015 financial year, AASB 10 applied, and for the 2014 financial year, Accounting Standard AASB 127 (AASB 127) applied.[1030] Both experts agreed that, for present purposes, there was no real difference between both Standards, save that AASB 10 expanded the scope of consolidation, elaborated on the definition of power and control, and addressed notforprofit activities in more detail. The variations between the two Standards did not materially affect the opinions held by either witness.[1031] In this case, the experts' analysis of the extent to which consolidation of the accounts of YAC and related entities should have occurred centred on the requirements of AASB 10.[1032] For present purposes, therefore, I have simply referred to the requirements of AASB 10.
3. Both of the experts agreed that Appendix E to AASB 10 The Australian Implementations Guidance for NotForProfit Entities was an integral part of AASB 10 which explained and illustrated its principles as they applied to notforprofit entities.[1033] I accept that evidence. I also accept that Appendix E provides very useful examples and explains why particular factors may have significance in determining the question of control by one entity over another.
4. Both Ms OldmeadowHall and Ms Shen agreed that, in the interpretation of the Accounting Standards, particularly in terms of consolidation, and in the application of those Standards to particular circumstances, there was room for differences of opinion between accountants as to whether or not to consolidate accounts.[1034] Ms OldmeadowHall thought that differences of opinion in relation to the application of the Accounting Standards were likely to be 'very rare' because the Standards were intended to be robust and clear.[1035] However, Ms Shen was of the view that consolidation questions were a 'critical judgement area ... just because it's subject to different interpretations and judgmental decision calls'.[1036]
5. The differences of view between Ms Oldmeadow-Hall and Ms Shen in this case, and the fact that YAC's accountants, KPMG, had formed a different view in relation to the application of AASB 10 to YAC and its related entities, illustrate that the present case is one of those where there is scope for differences of view about how AASB 10 applies. That is hardly surprising. The conclusion whether one entity 'controls' another, in the relevant sense, will be reached by weighing up all of the various factors identified in AASB 10. An analysis of that kind inevitably leaves room for differences of view.
6. The experts agreed that YAC 'controls' (in the sense referred to in AASB 10) the following entities: Yindjibarndi Wealth, Yindjibarndi Wealth Trust, Yindjibarndi Capital, and Yindjibarndi Capital Trust.[1037] The basis for that view was set out in Ms OldmeadowHall's first report, and Ms Shen agreed with her conclusions.[1038] In summary, their reasoning was as follows.
7. In relation to Yindjibarndi Capital, Ms OldmeadowHall and Ms Shen agreed that YAC held 100% of the shareholding in Yindjibarndi Capital Pty Ltd.[1039]
8. Ms OldmeadowHall concluded that YAC controlled Yindjibarndi Capital because it was the sole shareholder in Yindjibarndi Capital.[1040] Ms Shen agreed with Ms OldmeadowHall's view that Yindjibarndi Capital was a controlled entity of YAC, on the basis that not only was all of the equity interest in that company wholly owned by YAC, but also because one out of the two directors of Yindjibarndi Capital was also a director of YAC.[1041]
9. In respect of the Yindjibarndi Capital Trust, the experts determined that on the records produced to them, 21 out of 100 units were held by YAC, and the balance of the units were held by YCT.[1042]
10. Ms OldmeadowHall noted that Yindjibarndi Capital was the trustee of the Yindjibarndi Capital Trust. Ms OldmeadowHall relied on cl 21 of the Yindjibarndi Capital Trust Deed, which gives Yindjibarndi Capital exclusive management rights over the Yindjibarndi Capital Trust, providing it with[1043]

all the powers over and in respect of the investments assets and property of the Trust Fund which it would have if it were the absolute and beneficial owner of the entirety of every such investment asset ... .

1. Furthermore, under cl 27.1.3 of the Yindjibarndi Capital Trust Deed, the ordinary unit holders (namely YAC and YCT, which is a wholly owned subsidiary of YAC) can remove the trustee by an ordinary resolution.[1044] Accordingly, Ms OldmeadowHall concluded that YAC has the power to appoint the trustee of Yindjibarndi Capital Trust. Consequently, Ms OldmeadowHall's view was that for the purpose of AASB 10, YAC controlled the Yindjibarndi Capital Trust, and therefore YAC should have prepared consolidated accounts which encompassed the position of the Yindjibarndi Capital Trust for the 2014 and 2015 financial years.[1045]
2. Ms Shen was of the view that because Yindjibarndi Capital was the trustee of the Yindjibarndi Capital Trust, YAC had the power to direct the activities of the Trust and YAC was exposed, and had rights, to variable returns from the Trust from its units held in the Trust.
3. In relation to Yindjibarndi Wealth, the experts agreed that YAC held 100% of the share capital in Yindjibarndi Wealth.[1046]
4. Ms OldmeadowHall concluded that YAC exercised control, in the sense required under AASB 10, because it was the sole shareholder of Yindjibarndi Wealth.[1047] Ms Shen agreed that YAC controlled Yindjibarndi Wealth, not only because the equity interest of that company was wholly held by YAC, but also because one out of the two directors of that company was a director of YAC.[1048]
5. In relation to the Yindjibarndi Wealth Trust, the experts both agreed that the Yindjibarndi Capital Trust held all of the units in the Yindjibarndi Wealth Trust.[1049]
6. Ms OldmeadowHall noted that Yindjibarndi Wealth was appointed as the trustee of the Yindjibarndi Wealth Trust, and Ms that the Yindjibarndi Wealth Trust Deed contained clauses identical to cl 21 and cl 27 of the Yindjibarndi Capital Trust Deed (to which I have referred above). For the same reasons as she set out in respect of the Yindjibarndi Capital Trust, therefore, Ms OldmeadowHall concluded that for the purpose of AASB 10, YAC exercised control over the Yindjibarndi Wealth Trust. Accordingly, Ms Oldmeadow-Hall concluded that for the financial years ending 30 June 2014 and 30 June 2015, YAC should have prepared consolidated accounts which included its controlled entity, the Yindjibarndi Wealth Trust.[1050]
7. Ms Shen was of the view that because Yindjibarndi Wealth was a trustee of the Yindjibarndi Wealth Trust, YAC had the power to direct the activities of the Trust, and YAC was exposed, and had rights, to variable returns from the Trust from its units held in the Trust.
8. The reasoning adopted by the experts in relation to Yindjibarndi Wealth, Yindjibarndi Wealth Trust, Yindjibarndi Capital and Yindjibarndi Capital Trust was clear and cogent, and I accept their conclusion that YAC can be regarded as exercising control in respect of each of those entities for the purpose of AASB 10. (I note that my acceptance of this conclusion only relates to the 'control' of YAC over these entities in the AASB 10 sense, and should not be construed as an acceptance of a broader conclusion as to 'control' as a matter of law).

(v) The expert evidence the matters in dispute

1. The areas of dispute between the experts concerned whether YAC controlled YCCL, YPCT and YCT.
2. The position in relation to Yurra was not entirely clear, and I deal with it separately.

1. The experts agreed that YAC held 100% of the capital in YCCL.[1051] YCCL is the appointed trustee for YPCT and YCT.[1052]
2. The experts provided detailed evidence in relation to their assessment of the application of the various indicia of control set out in AASB 10. For the reasons which I set out below, in relation to each of those indicia, I am of the view that although both Ms Shen and Ms OldmeadowHall demonstrated considerable expertise, Ms OldmeadowHall's analysis was more comprehensive (because she had regard to relevant documents which were not provided to Ms Shen), and her analysis of factors relevant to YAC's control over YCCL, YCT and YPCT was more persuasive.

1. Ms OldmeadowHall's view was that YAC controlled YCCL for the following reasons. First, she noted that YCCL is a company limited by guarantee, and under YCCL's constitution, YAC is the sole member of YCCL. She explained that 'that was the reason why it was my belief that YAC does control [each] trust'.[1053] Her view was that because YAC is the sole member of YCCL, it appointed the trustee of YCT and YPCT, and the Trustee was the entity which would make decisions in relation to how money received by the Trusts was spent.[1054]
2. Ms Shen did not, however, take into account the fact that, under the constitution of YCCL, the only member of the company was YAC (or if YAC ceased to meet the requirements of a local Aboriginal corporation under the Participation Agreement, a replacement local Aboriginal corporation).[1055] In my view, that was a significant omission. As a starting point, the fact that YAC is the sole member of YCCL suggests that it is likely to have significant influence in the decisions of YCCL.
3. The experts also considered the manner in which the directors of YCCL were appointed. Under YCCL's constitution,[1056] the directors of the company must comprise between two and five nonindependent directors, including at least one person who is a member of the board of YAC, at least one person who is a member of the local implementation committee established under the Participation Agreement, and two independent directors appointed by the board from a list of at least four and no more than eight persons compiled by Rio Tinto, who Rio Tinto considers eligible to be candidates for those positions.[1057] However, it is apparent that those independent directors are not appointed by Rio Tinto, but rather are selected by the board and then, it appears, formally appointed by an ordinary resolution of the members of YCCL (that is, YAC) at a general meeting.[1058]
4. Ms OldmeadowHall's view was that the appointment of directors was vitally important and, as YAC controlled the appointment of the majority of the directors of YCCL, it controlled that composition of the board which, in turn, meant that YAC had the ability to direct the activities of each Trust because of its control of the Trustee.[1059]
5. Ms Shen placed emphasis on the fact that AASB 10 made clear that an investee may be designed so that voting rights are not a dominant factor in deciding the question of control, and that it was necessary to understand all of the contractual arrangements that are in place. For that reason, in her view, voting rights and board composition could not be the only determinants in assessing control of an entity. If the focus was solely on board composition, then she would have agreed with Ms OldmeadowHall's opinion. However, the benefits management scheme established under pt 6 of the Participation Agreement (BMS) led her to the view that 'there are other contractual arrangements in place that redirected the power and control ... away'.[1060]
6. The key differentiating factor between Ms Shen and Ms OldmeadowHall was that Ms Shen took the view that under the Participation Agreement, and under YCCL's constitution, YCCL was obliged to consult with the Yindjibarndi people. In so far as YCCL's constitution stipulated that YCCL must recognise, respect and support the decisionmaking processes determined by the Yindjibarndi people for the BMS, Ms Shen understood YCCL to be required to consult with the Yindjibarndi people in relation to the formulation of policy and the direction of the YPCT and YCT.[1061] As I understood the import of her evidence, she saw this requirement as displacing YAC's ability to control what YCCL did as the Trustee of YCT and YPCT.
7. Under the BMS in the Participation Agreement, the money payable by Rio Tinto to the Yindjibarndi people pursuant to that Agreement is paid to YCT and YPCT. Ms Shen relied[1062] on the preamble to pt 6 of the Participation Agreement (which established the BMS), and which provided that the BMS is designed[1063]

to look after the money that [Rio Tinto] pays the Yindjibarndi people under ... the agreement. This structure is made up of a commercial trust and community trust. ... The trustee is responsible for looking after the community trust and the commercial trust. It is not a party to this agreement, but it is a party to the trust deeds ... . It can only take action to enforce the payment of money under the agreement with the consent and under the direction of the Yindjibarndi people.

1. By virtue of the BMS and the provisions of pt 6 of the Participation Agreement, and the fact that YCCL can only take action to enforce the payment of money under the Participation Agreement with the consent of the Yindjibarndi people, Ms Shen was of the view that YCCL does not have the ability to use its power to affect the nature and amount of its returns from YCT and YPCT.[1064]
2. With respect, it is not apparent why the requirement for YCCL to consult with the Yindjibarndi people means that YAC does not control YCCL. Having regard to the powers of YCCL as the Trustee of YCT and YPCT under the YPCT Trust Deed and YCT Trust Deed, I am unable to agree with Ms Shen's conclusion.
3. Ms OldmeadowHall relied on cl 5.2 of YCCL's constitution, which she read as giving YCCL 'the sole discretion to direct the activities of YCT and YPCT, notwithstanding its obligations to act for the benefit of the Yindjibarndi people'.[1065] I agree with that view. Clause 5.2 of YCCL's constitution states that:[1066]

(a) The company must (subject to this constitution) recognise, respect and support the decision-making processes determined by the Traditional Owner Group for the Benefits Management Structure.

(b) Nothing in this chapter has the effect of limiting or restricting the class of beneficiaries of the [YCT] or [YPCT] or fettering the absolute discretion of the trustee of the [YCT] or [YPCT].

1. As for the preamble to pt 6 of the Participation Agreement, Ms OldmeadowHall's opinion was that the preamble relates to YCCL's right to enforce Rio Tinto's obligations to provide money to YCT and YPCT. Her view was that[1067]

In the event that [Rio Tinto] does not pay YCT and YCPT, YCCL cannot enforce [Rio Tinto's] obligations under the [Participation Agreement]. It is the Aboriginal people that enforce payment. Accordingly, ... pt 6 of the Participation Agreement is not relevant to the consideration of whether YAC has the power of an investee over YCCL.

1. I prefer the opinion of Ms OldmeadowHall that the preamble to pt 6 of the Participation Agreement was not relevant to the question of YAC's power over YCCL. To my mind, the critical question is the power of YCCL, as the Trustee of each Trust, to determine how the funds of each Trust are expended. As YAC is the sole member of YCCL, it is able to determine how YCCL will exercise its powers under each Trust Deed.
2. Ms Oldmeadow-Hall also took into account whether the Yindjibarndi people were able to block the decisions made by YCCL as to the conduct of the relevant activities of YCT and YPCT, namely the decisions concerning where and when funds received from Rio Tinto are spent.[1068] Ms OldmeadowHall's view was that the relevant activity (from the perspective of AASB 10) for YCCL as the trustee of YPCT was to decide where and when to spend the Rio Tinto funds in accordance with the requirements of the Trust Deed. Ms OldmeadowHall pointed to cl 2.5(a) of the YPCT Trust Deed, which states:[1069]

The Trust Fund will be applied by the Trustee in accordance with the terms of this Deed exclusively for the Trust objects which are the provision of money, property or benefits to other persons or entities for the promotion and advancement of Charitable Purposes that benefit current and future generations of Community members.

1. Ms OldmeadowHall's view was that the relevant activity (from the perspective of AASB 10) for YCCL as the Trustee of YCT was to decide where and when to invest, distribute or otherwise deal with the Rio Tinto's funds in accordance with the requirements of the Trust Deed. In that respect, she referred to cl 2.1(b) of the YCT Trust Deed, which states:[1070]

The Settlor and the Trustee declared that the Trustee will hold the Trust Fund and the income from the Trust Fund on trust for the benefit of the Beneficiaries, with the powers and subject to the provisions of this Deed.

1. Furthermore, cl 2.3 of the YCT Trust Deed states that:[1071]

Without limiting the provisions of clause 2.1(b) above or the operation of any applicable law, the Trustee must hold, invest, distribute or otherwise deal with the Trust Fund ...

1. It was Ms OldmeadowHall's view that while YCCL was required to recognise, respect and support the decision-making processes of the Yindjibarndi people, nothing in the YPCT Trust Deed or the YCT Trust Deed was inconsistent with the ability of YCCL to determine where and when to spend the Rio Tinto funds paid into each Trust.[1072]
2. Using the YPCT Trust Deed as an example, the recitals to the Trust Deed acknowledged that the Yindjibarndi people and the Yindjibarndi PBC (that is, YAC) wished to create a trust to be known as the Yindjibarndi People Community Trust, for the promotion and advancement of the charitable purposes that benefit the community (including the Yindjibarndi people). Further, the recitals recognised that the Yindjibarndi people and the Yindjibarndi PBC (YAC) desired that the trustee will recognise, respect and support Yindjibarndi people and traditions (including Birdarra Law) and the involvement of the Yindjibarndi people, and their PBC (that is, YAC), in decision-making in accordance with the Trust Deed.[1073]
3. Consistent with those objectives, cl 3.2 of the YPCT Trust Deed requires that the Trustee (YCCL) must recognise, respect and support the decision-making processes determined by the Yindjibarndi people for the BMS under the Participation Agreement, including the decisionmaking processes of the Yindjibarndi PBC (that is, YAC). In addition, YCCL, as the Trustee, is required to develop appropriate mechanisms by which to promote the participation of, consultation with, and information dissemination to, the Yindjibarndi people.[1074]
4. However, in circumstances where there is only one Yindjibarndi PBC, the Trust Deed makes clear that the Trustee is entitled to deem a meeting of the members of the Yindjibarndi PBC (that is, YAC) held in accordance with its Rule Book, to be a meeting of the Yindjibarndi people; that references in the Trust Deed to the 'Yindjibarndi people' are to be understood as references to the members of the Yindjibarndi PBC (that is YAC); and that a decision made at a meeting of the Yindjibarndi PBC (that is, YAC), or consultation at that meeting, constitutes the consent of, or consultation with, the Yindjibarndi people.[1075] In other words, the consultation the Trustee is required to undertake with the Yindjibarndi people is effected at a meeting of YAC.
5. Ms Shen did not consider that these provisions of the Trust Deed supported the conclusion that YAC was in a position to control YPCT, because she regarded YAC as 'just a registered body to administer and convene meetings'.[1076] I am unable to agree. In so far as Ms Shen placed emphasis on the requirement under the BMS for consultation with the Yindjibarndi people as a factor which detracted from YAC's power to determine how funds from the Trusts should be expended, the provisions of the YPCT Trust Deed, to which I have referred by way of example, make clear that in practical terms, the requirement for consultation with the Yindjibarndi people does not undermine YAC's control over YCCL's activities in relation to the distribution of funds from the Trusts.
6. The experts also considered the question of whether, and how, YAC could be removed as the member of YCCL, as a factor relevant to its control of YCCL. Under YCCL's constitution, YAC can only be removed as the member of YCCL if it resigns, ceases to meet certain other requirements, or if it is deregistered or otherwise dissolved. Ms OldmeadowHall took the view that those removal rights were protective rights in accordance with AASB 10.[1077]
7. Another factor relied upon by Ms OldmeadowHall in relation to the question of YAC's power over YCCL was the question whether YCCL could be removed as Trustee of YCT or YPCT. Ms Oldmeadow-Hall noted that the Yindjibarndi people do not have the power to remove YCCL as a Trustee.[1078] Ms OldmeadowHall concluded that nothing in the YCT Trust Deed gave the Yindjibarndi people, or any other party, the general right to replace YCCL as the Trustee. Ms OldmeadowHall referred to cl 5 of the YPCT Trust Deed and cl 5 of the YCT Trust Deed (which are in identical terms), which deal with the appointment and removal of the trustee. Under cl 5.1 of the YPCT Trust Deed, YCCL is appointed as the Trustee of the YPCT. Clause 5.3 provides that certain people, including the Yindjibarndi PBC (that is, YAC), are able to notify the auditor of a 'removal event'. Ms OldmeadowHall noted that that initiated a process whereby the auditor was to investigate the 'removal event' which could, in certain circumstances, give the Yindjibarndi people a right to remove the trustee. However, she noted that[1079]

there is nothing cl 5 of the trust deed which gives the Yindjibarndi people (or any other party) a general right to replace the trustee in the absence of a removal event.

The removal rights contained in the trust deed are only protective rights in accordance with AASB 10. YCCL, being a wholly owned subsidiary of YAC ... has the substantive rights of control of YPCT.

1. In my view, the issues going to removal of YAC as a member of YCCL, and removal of YCCL as the Trustee of the Trusts strongly supported the conclusion that YAC exercises power over YCCL (and in turn over YPCT and YCT).
2. For all of these reasons, I preferred the analysis of Ms Oldmeadow-Hall to that of Ms Shen in relation to YAC's power over YCCL, and in turn, its power over YCT and YPCT.

Whether YAC derives variable returns from its involvement with YCCL, YCT and YPCT

1. As for the second criterion relevant to the question of control under AASB 10, namely whether the investor derives variable returns from its involvement with the investee, the experts referred to two factors: whether YAC derived a financial return from YCT and YPCT, and whether it derived a return in the form of the advancement of its objectives, by virtue of the pursuit of the same or similar objectives by YCT and YPCT.
2. There was no dispute that YAC receives funds from the YCT and the YPCT. Ms Shen was of the view that although YAC derives funding from YCT and YPCT in support of its administrative functions,[1080]

this cannot be construed as variable returns from YCT and YPCT [because] it is very common for large organisations to carry out administrative support functions for smaller independent not-for-profit organisations. This service income (sic) are to fund the costs incurred for the supportive functions and, by definition, are not variable returns in accordance with AASB 10.

1. Ms Shen acknowledged that although YAC, YCCL, YCT and YPCT had similar social objectives, under AASB 10, 'congruence of objectives alone is insufficient to conclude that one entity controls another'.[1081]
2. It was Ms OldmeadowHall's opinion that[1082]

YAC and its controlled entities are subject to variable returns because YAC earns income directly from YCT and YPCT for providing services and also in its charitable objectives to provide relief from poverty and destitution of the Aboriginal people.

1. Ms OldmeadowHall was of the view that YAC derived variable returns from YCT and YPCT. She relied, in particular, on the guidance provided by Appendix E to AASB 10 in relation to not-for-profit entities. In particular, she referred to paragraphs IG18 and 1G19 (to which I have already referred). Ms OldmeadowHall was of the view that the relevant activities of YCCL, YCT and YPCT were consistent with the YAC's stated objectives in rule 2 of the YAC Rule Book.[1083] It was Ms OldmeadowHall's opinion that the consistent objectives shared by YCCL, YCT, YPCT and YAC meant that it could be said that YAC would derive variable returns from its involvement with YPCT's and YCT's objectives.[1084]
2. With respect to Ms Shen, I did not find her explanation for why YAC does not derive variable returns - both in terms of financial returns and the achievement of common objectives - from YCT and YPCT to be compelling. That was especially so, in view of other evidence (to which the experts referred, and which I discuss below) which was to the effect that YAC also received significant financial returns from YCT and YPCT which could not be regarded as payment for administrative services. Accordingly, I preferred Ms OldmeadowHall's analysis of this aspect of 'control'.

YAC's ability to use its power over YCCL to affect the returns it receives from YPCT and YCT

1. In assessing whether YAC had the ability to use its power over YCCL to affect the returns it received, the experts had regard to the fact that YAC received money from YCT and YPCT, and the basis on which that money was paid.
2. One of the requirements of the BMS under the Participation Agreement is that the trustee (that is, YCCL) be given[1085]

power to provide funding to YAC for YAC's administration purposes from the commercial trust, and where the power is exercised, then such funding shall not in any financial year exceed the lesser of:

(A) an amount that is 20% of the [payments] made to the trustee during the previous financial year; or

(B) $1 million (CPI adjusted).

1. Ms OldmeadowHall had regard to YAC's financial reports for the 2014 and 2015 financial years, and noted that the financial report for the 2014 financial year stated that:[1086]

As per the terms of the BMS, the trusts made the following distributions to the [YAC] (as stated in this report):

Yindjibarndi Commercial Trust Funding $233,116

Yindjibarndi Community Trust Ngarda Media $364,000

Yindjibarndi Community and Commercial Trust Joint funding $2,358,126

1. Ms Oldmeadow-Hall noted that for the 2015 year, YAC's financial report indicated that under the terms of the BMS under the Participation Agreement,[1087]

The trusts made the following distributions to [YAC] (as outlined in this report):

Yindjibarndi Commercial Trust Funding $233,816

Yindjibarndi Community Trust Ngarda Media $222,868

Yindjibarndi Community and Commercial Trust Joint funding $3,008,250

1. Ms OldmeadowHall's evidence was that if YAC had received money from YCT and YPCT merely for the purpose of distributing that money to the Yindjibarndi people, and merely acting as an agent of the Trustee in distributing those funds, those payments would not have been reflected in YAC's accounts at all.[1088] In her view, the fact that payments from the Trusts had been recognised as revenue in YAC's accounts indicated that those who prepared the accounts concluded that, in receiving that money, YAC was not acting merely as the agent of the Trusts.[1089] Ms Shen agreed with that analysis.[1090] In my view, that factor is of some significance, in that it illustrated YAC's own view of its ability to control what it received, as revenue, from the Trusts.
2. In relation to the revenue YAC received from the Trusts, which was reflected in YAC's accounts for the 2014 and 2015 financial years, Ms Shen was of the view that there was 'uncertainty as to exactly what it relates to'.[1091] Ms Shen was of the view that she could not conclude that each payment was 'entirely a return because it seemed like that their costs of service is quite excessive as well'.[1092] However, in my view, nothing in the evidence suggested that the payments identified as 'joint funding' from the Trusts could be regarded as payments for administrative services provided by YAC to the Trusts.
3. Ms OldmeadowHall concluded that the payment to YAC from YPCT could not be regarded as a payment for administrative functions carried out by YAC in support of YPCT, because under the BMS in the Participation Agreement, there was a limit on the quantum of administrative fees which could be paid of not more than $1 million per year. Ms OldmeadowHall concluded that 'the fact that the income in 2014 and 2015 accounts was in excess of $3 million indicates that it is more than just administration services that YAC provided to the Trust or got paid for by the Trust. I think YAC was a beneficiary from the Trust and received income'.[1093] Ms OldmeadowHall took the view that 'YAC received the return from the Trust, getting income from the Trust and that assisted in its furtherance of its objectives'.[1094] The quantum of the funds, and the absence of evidence to suggest that YAC was merely acting as an agent for the Trusts in distributing funds, support the conclusion that YAC was able to use its power over YCCL to affect the returns it received from the Trusts.
4. The experts were asked for their views on the relevance of a resolution of the directors of YCCL, made on or about 21 August 2015, which provided that[1095]

due to the continued success and demand of the recently established community outreach program discussed at the YCCL board meeting (19 August 2015), and based upon careful consideration of what is best for the Yindjibarndi community, the board has resolved to allocate up to another $100,000 to be administered by YAC.

1. Ms Shen did not consider that this document was evidence of a decisionmaking process of any particular significance for the question of control under AASB 10, because it 'just tells me that YCCL has gone through a process to approve a payment of money to YAC'.[1096] I am unable to agree. In my view, the resolution provided support for the view that YAC by its control of the board of YCCL had the ability to influence its return from the Trusts for its own objectives. Consequently, I prefer the evidence of Ms OldmeadowHall, who observed:[1097]

The payment it doesn't look as though this is a reimbursement for administration costs that YAC has incurred, this is a payment to establish a community outreach program. So this is a payment whereby YAC is getting a variable benefit to further its objectives which ... [are] to assist the Yindjibarndi people. ...

And that is relevant because when looking at control you look at is there the power to control the entity via the board or voting rights? And then the next thing is is there actually a way of getting variable interest benefits, and, you know, assisting the entity, specifically in the notforprofit sector, in the furtherance of its objectives. And so I do think this $100,000 payment goes to the heart that YAC was receiving money from the trust for the furtherance of its community objectives.

1. Furthermore, Ms OldmeadowHall explained that having regard to the broad scope of the nature of 'returns' in the context of notforprofit entities under AASB 10, she had had regard to the objectives of YAC under its Rule Book, and the objectives of the Trusts, and of YCCL under its constitution, and concluded that they were consistent in that they sought the 'furtherance of the Yindjibarndi people'.[1098] Ms OldmeadowHall's view was that because the objectives of YPCT and of YAC were consistent, by fulfilling its own objects, YPCT also fulfilled the objectives of YAC.[1099]
2. Under the YPCT Trust Deed, the trust fund is to be applied by the Trustee in accordance with the terms of the Trust Deed, exclusively for the trust objects.[1100] Further, under the Trust Deed, the Trust is to be carried out[1101]

without purpose of profit or private gain for the Trustee, directors or members of the Trustee. No part of the trust fund or the income may be transferred or distributed directly or indirectly by way of dividend, bonus or other profit distribution to the Trustee, or directors or members of the Trustee.

1. It was put to Ms OldmeadowHall that that clause prohibited the payment of money from the Trust to YAC for its own benefit and, instead, any payments to YAC should be construed as the payment of funds for YAC to distribute on behalf of YPCT. Ms OldmeadowHall's view was that the accounts only revealed that payments had been made to YAC, and she was unable to comment on whether those payments had been made in contravention of that provision of the Trust Deed.[1102] I note, however, that s 68925 of the CATSI Act makes clear that even practices in breach of trust can be taken into account in determining control.
2. Ms Shen regarded the requirement on YCCL to consult with the Yindjibarndi people in relation to the formulation of policy and the direction of each trust[1103] as negating the ability of YAC to affect the returns it received from YPCT and YCT. Ms Shen's view was that the BMS contemplated that the Trustee of each Trust could not itself make the decisions to direct and make payment of monies out of the Trust without consulting the Yindjibarndi people.[1104] Ms Shen's view was that the entirety of cl 5.2 of YCCL's constitution conveyed the intention that the Trustee was not entitled to make decisions about the expenditure of the trust funds without consultation with the Yindjibarndi people.[1105] As for YAC's role in undertaking that consultation under the BMS, Ms Shen said:[1106]

I'm not disputing that YAC is not part of the decision-making process, but how I interpret it is they are meant to administer and convene meetings to involve the Yindjibarndi people because they are the representatives of the Yindjibarndi people.

1. As I have already mentioned, Ms OldmeadowHall pointed to cl 5.2(b) of YCCL's constitution, which provided that 'nothing in this chapter has the effect of limiting or restricting the class of beneficiaries of the [YPCT] or [YCT] or fettering the absolute discretion of the trustee of the [YPCT] or [YCT].[1108] Consequently, Ms OldmeadowHall's view was that there was nothing in the BMS under the Participation Agreement, or in YCCL's constitution, that gave the Yindjibarndi people a right to override the decisions of the Trustee of each Trust in relation to the way trust funds should be spent. In her view, cl 5.2(b) of YCCL's constitution would have required very clear words to convey that intention.[1109] In my view, that analysis was persuasive.
2. In reaching the view that YAC had the ability to use its power over YCCL to affect the returns it received, Ms OldmeadowHall also looked at some of the minutes of YAC and of YCCL, and relied upon them to determine how YCCL's decision-making was undertaken.[1110] Ms OldmeadowHall also placed reliance on a resolution made by YAC's members at a meeting of YAC held on 25 November 2015. According to the minutes of that meeting, that resolution was to the following effect:[1111]

The board of directors of [YAC] has considered each of the proposed resolutions to be considered at the 2014 and 2015 annual general meetings of [YCCL] and resolved that nothing in the agreements or trust deeds comprising the benefit management structure established by YAC, the Yindjibarndi People and Rio Tinto Iron Ore requires YAC to hold a meeting of its members or to seek the consent, endorsement, approval, decision or authorisation of its members before exercising, or authorising a representative to exercise, YAC rights as sole member of YCCL under the YCCL Constitution at the AGMs.

1. Ms OldmeadowHall's view was that that resolution 'demonstrates that the directors of YAC considered that they have the authority over YCCL to determine the allocation of funds within YCT and YPCT'.[1112] That suggests that whatever the strict legal position might have been, in practice, YAC did not regard the obligation on YCCL to consult with the Yindjibarndi people as confining YAC's rights as the sole member of YCCL.
2. Ms Shen had not been provided with the minutes of YAC's meetings, and had therefore not been able to take them into account for the purposes of reaching her conclusion about the application of AASB 10. Ms Shen was of the view that minutes of meetings were not an adequate and sufficient basis for a judgment about control, but she did accept that consideration of the minutes was relevant in the process of assessing control.[1113] She also accepted that it would be necessary to look at the budget and practical decisionmaking in an organisation to ascertain 'the process of how approval and review processes have been undertaken, [and how] the decision-making process has [been undertaken]'.[1114] She acknowledged that she had not been given the material necessary to undertake these tasks for the purposes of providing her opinion in this case.[1115]
3. Ms Shen also confirmed that for the purposes of preparing her report and formulating her opinion, she had not examined the minutes of YCCL.[1116] Ms Shen considered that those minutes, of themselves, would be insufficient in assessing 'control' for the purpose of AASB 10, but she accepted that they would be part of the process of assessing whether the criteria of control were met.[1117] Ms Shen accepted that because she was not provided with the minutes of YCCL, she was not in the position to assess whether representatives of YAC attended and spoke at meetings of YCCL.[1118]
4. The fact that Ms Shen was not able to have regard to the minutes of YAC and of YCCL, which in my view constituted a source of information relevant to determining YAC's control over YCCL, meant that her opinion was less comprehensive in its analysis, and thus less persuasive than the opinion expressed by Ms OldmeadowHall.
5. In my view, for the reasons set out above, I prefer the opinion reached by Ms OldmeadowHall that YAC exercised relevant powers of control, for the purposes of AASB 10, over YCCL, and over YPCT and YCT. I find that YAC exercised control over YCCL, and in turn over YPCT and YCT, because it exercised power over YCCL; it had exposure to variable returns from its involvement with YCCL; and it had the ability to use its power over YCCL to affect the amount of its returns. (I note again that these findings only relate to the 'control' of YAC over these entities in the AASB 10 sense, and should not be construed as broader findings of 'control' as a matter of law). Accordingly, I find that the accounts prepared by YAC for the financial years ending 30 June 2014 and 30 June 2015 should have been consolidated accounts which encompassed the accounts for YCCL and YPCT and YCT, as well as those of Yindjibarndi Wealth, the Yindjibarndi Wealth Trust, Yindjibarndi Capital and the Yindjibarndi Capital Trust.

1. In relation to Yurra, the experts determined that the Yindjibarndi Wealth Trust held 50% of the issued capital in Yurra.[1119]
2. Ms OldmeadowHall noted that YAC had a 50% interest in Yurra, which was recognised in YAC's 2013 financial statements. In the 2014 and 2015 financial years, YAC's investment in Yurra was held through its controlled entity, Yindjibarndi Wealth, and, accordingly, YAC's interest in Yurra was not disclosed at all in YAC's 2014 and 2015 financial statements.[1120] Ms OldmeadowHall noted that the other shareholders of Yurra are the Anthony Martin Trust (25% interest) and the Right Foot Forward Trust No 2 (25% interest). She noted that YAC's CEO, Mr Michael Woodley, and Mr Liam Wilson, representing Right Foot Forward Trust No 2, were the directors of Yurra.[1121]
3. Initially, Ms OldmeadowHall was unable to determine whether YAC had control, joint control or significant influence over Yurra, so as to reach a conclusion about the appropriate accounting treatment of the interests held in Yurra in the financial statements of YAC.[1122] However, in her further supplementary report, Ms OldmeadowHall was prepared to treat Yurra as a controlled entity of YAC, having regard to Ms Shen's conclusion that YAC controls Yurra.[1123]
4. Ms Shen concluded that as Yindjibarndi Wealth held a 50% stake in Yurra and as YAC's CEO, Mr Woodley, was one of the two directors of Yurra, YAC had the power, through Yindjibarndi Wealth, to direct the activities of Yurra and had rights to Yurra's variable returns. Accordingly, she concluded that YAC controlled Yurra.[1124] The basis for that conclusion was not entirely clear, given that YAC does not appear to have a majority shareholding, or a majority of directors in Yurra. Instead, YAC shares its power equally with the other Yurra shareholders, and the other director.
5. Furthermore, Ms Shen also made the somewhat curious statement that she agreed with the conclusions drawn in Ms OldmeadowHall's report that Yurra is a controlled entity of YAC.[1125] In fact, Ms OldmeadowHall's initial view, as I have said, had been that she was unable to reach any such conclusion. Nevertheless, Ms Oldmeadow-Hall was, subsequently, prepared to accept Ms Shen's view that Yurra was a controlled entity of YAC.[1126]
6. Given the limited information in relation to Yurra, and the apparent inconsistencies in the views of the experts, which were not resolved in their evidence, it is undesirable to express a final view on the question whether YAC exercises control over Yurra. It is also unnecessary to express any final view on that question.

(vi) Whether the financial statements of YAC consolidated its position and that of the Subsidiaries

1. I find that YAC did not prepare consolidated accounts which incorporated the position of its other controlled entities, namely YCCL, and YPCT and YCT, as well as Yindjibarndi Wealth, the Yindjibarndi Wealth Trust, Yindjibarndi Capital and the Yindjibarndi Capital Trust. On that basis, YAC's accounts did not comply with the requirements of AASB 10 (or AASB 127) for the financial years ending 30 June 2014 and 30 June 2015.
2. Ms OldmeadowHall prepared an example of consolidated financial statements which consolidated YAC's controlled entities into YAC's accounts. It is apparent from that example that the consolidation of YAC's controlled entities into the accounts would provide YAC's members with a comprehensive, and far more accurate, picture of the financial position of the group of companies subject to YAC's control. In particular, they would provide a means by which YAC's members could more readily ascertain the total revenue across the group, and where that income is being expended. A more accurate overall picture of the assets, liabilities and current equity across the group would clearly be provided by such consolidated accounts. Accordingly, the question of consolidation is not merely one of technical compliance with the requirements of relevant Accounting Standards, but is important for providing YAC's members with important financial information in relation to YAC and the entities under its control.

(vii) The directors' role in the preparation of YAC's reports, and their reliance on YAC's accountants and auditors

1. The defendants relied on evidence that YAC's directors had relied on the advice of YAC's accountants, and on the audit undertaken by YAC's auditors for the financial years ending 30 June 2014 and 30 June 2015, in support of their submission that it was open to them to do so, and that consequently, the failure by YAC to prepare consolidated reports could not constitute conduct caught by s 1661(1)(d) or (e) of the CATSI Act.
2. The evidence of Mr Woodley,[1127] of Mr Mack, and of Ms Cheedy, made clear, and I find, that YAC relied on its accountants and auditors, in preparing its financial statements in accordance with applicable Accounting Standards.
3. In respect of the accounts for the 2014 financial year, those accounts were prepared by Mr Harrison (an accountant employed, in house, by YAC), but were then audited by YAC's auditor, Mr Sword. Mr Woodley's evidence was that Mr Sword's opinion was that the accounts were properly prepared, and YAC took that advice.[1128] The position in relation to the 2015 accounts was less clear, but it appears likely that they were prepared by KPMG, which had been engaged by YAC in June 2015 (Mr Harrison having left YAC's employment some months before that, in 2014).
4. Mr Woodley was crossexamined about the fact that YAC's draft 2016 accounts contained a partial consolidation of some of YAC's Subsidiaries, namely Yindjibarndi Capital and Yindjibarndi Wealth. Mr Woodley's evidence was that he first learned of that partial consolidation when he saw the draft accounts.[1129] In other words, Mr Woodley, as YAC's CEO, continued to rely on YAC's accountants as to whether consolidation was required.
5. Mr Mack was asked about the question of consolidation of the accounts of YAC and other entities, including YCCL, Yindjibarndi Wealth and Yindjibarndi Capital. He was asked by counsel for the plaintiffs whether, as the director of YAC, he had inquired as to how the accounts of those entities should best be dealt with. His evidence was:[1130]

All these [entities are] separate. ... It's all separate. It's not under any corporation. It's not we haven't got nothing to do with it's a trust. There's an item here. That's all separate corporations. ... We don't we don't manage it. We don't manage, but we each look after the native title (indistinct) the PBC, our interests in the claim.

1. It was apparent that Mr Mack did not have a sophisticated understanding of the responsibilities of directors with respect to the financial statements of a company. His understanding of the duty of a director of a corporation was to 'protect the interests for the people and corporation'.[1131]
2. Ms Cheedy was asked about her understanding of the responsibility of YAC's directors in relation to the preparation of its accounts, including in relation to determining whether other the accounts of other entities were required to be consolidated with YAC's accounts. Her evidence was 'being a financial matter, I suppose the YAC management do have some sort of responsibility in that, but, as I say again, we do have accountants and auditors that assist us with that process'.[1132]
3. The plaintiffs' counsel sought to illustrate that the directors did not rely upon the advice of their accountants and auditors in relation to the preparation of the accounts for 2014 and 2015. Counsel pointed to the directors' declaration, signed by Ms Cheedy as the Chair of YAC, in YAC's financial reports for the 2014 and 2015 financial years, to the effect that the accounts gave a true and fair view of the financial position of YAC.[1133] In addition, counsel for the plaintiffs pointed to the disclaimer by YAC's auditor, Mr Swords, to the effect that 'the directors are responsible for the preparation and presentation of the financial statements and the information they contain' and that 'no opinion is expressed as to whether the basis of accounting used is appropriate to their needs'.[1134]
4. The latter evidence must be viewed in its context. Mr Swords' audit report indicated that in his opinion 'the financial statements present the financial transactions fairly in accordance with applicable accounting standards and are based on proper accounts and records'.[1135] That statement is not inconsistent with the directors' claimed reliance on their accountants and auditors for the purposes of ensuring compliance with any applicable financial reporting requirements.
5. Finally, however, I should mention that it appeared that the defendants' witnesses, in their evidence, sought to downplay the significance of YAC's failure to produce consolidated accounts. Mr Mack's evidence was that members could obtain the relevant financial information for YAC's related entities such as YCCL, and YCT and YPCT, by attending the AGM for YCCL. His evidence was that at the AGM for YCCL, the accounts for the Trusts were put up on a projector screed in the hall for people to read.[1136] He was asked:[1137]

So you say it was clearly able to be read by anyone going to the meeting?Yes. And explained as well.

1. All that needs to be said about that evidence is that providing information to YAC's members about the accounts of YCCL, YCT or YPCT in that fashion hardly constitutes compliance with AASB 10. The provision of financial information in that way could not realistically be regarded as of any meaningful use to any member of YAC with an interest in understanding the overall financial picture of YAC and all of its related entities.

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. The plaintiffs submitted that the Court should find that this aspect of their case had been wholly made out, having regard to the evidence of the expert witnesses. There can be no doubt that the plaintiffs have established that YAC failed to comply with the requirements of subdivision 333A of the CATSI Regulations, in that it failed to prepare consolidated accounts in accordance with the requirements of AASB 127 and AASB 10 for the 2014 and 2015 financial years.
2. The defendants' approach to the question of what AASB 10 required was agnostic. Counsel for the defendants submitted, in closing, that 'the current management and directors do not have a strongly held view about the application of AASB 10. This is a regulatory compliance issue for YAC. If it is necessary to prepare consolidated financial statements to accord with AASB 10 then it will do so.'[1138] They submitted that it was desirable for the Court to determine whether YAC ought to have consolidated its financial statements because its auditors were awaiting the outcome of this case to determine what was required for consolidation in the future.[1139]
3. The defendants' position was that if AASB 10 required YAC to prepare consolidated financial statements, the question for the Court was whether YAC's failure to do so, in circumstances where the evidence established that it had relied on its accountants and auditors in relation to whether consolidated accounts were required, was conduct caught by s 1661(1)(d) or (e) of the CATSI Act. The defendants' case is that the directors were entitled to rely, honestly and in good faith, on their accountants to form a view about the application of AASB 10, and if they did so, their conduct could not be caught by s 1661(1) of the CATSI Act.[1140]
4. In some respects, the defendants' case appeared to draw on similar considerations to those set out in s 26545 of the CATSI Act. However, that section does not apply, nor was it contended the defendants that it did.
5. The question, then, is how YAC's conduct if it constituted a failure to comply with subdivision 333-A of the CATSI Regulations constituted conduct caught by s 166-1(1) of the CATSI Act. The case was not, with respect, entirely clearly elucidated, but I have proceeded on the basis that the plaintiffs' case is, in essence, that a failure to prepare financial reports which comply with the requirements of subdivision 333A of the CATSI Regulations constitutes conduct of the corporation's affairs which is contrary to the interests of the members as a whole.
6. At this point, it is appropriate to say something about the role and responsibilities of a director in relation to an ATSI corporation's financial reporting obligations. The general principles governing the role and responsibilities of a director in relation to a company's financial reporting obligations under the Corporations Act 2001 (Cth) provide guidance as to how comparable obligations under the CATSI Act apply.
7. In Australian Securities and Investments Commission v Healey,[1141] Middleton J discussed the responsibilities of directors in relation to the preparation of the financial statements of a corporation. The following statements are drawn from his Honour's discussion of the applicable principles.
8. Directors of a company have an important role and responsibility to ensure that the information included in the financial statements of the company is accurate. While directors are entitled to delegate to others the preparation of books and accounts, and the carrying on of the daytoday affairs of the company, they are expected to take a diligent and intelligent interest in the information available to them, to understand that information, and apply an enquiring mind to the responsibilities placed upon them.[1142]
9. That responsibility applies to adopting and approving the financial statements.[1143] A director must read the financial statements to ensure, as far as possible and reasonable, that the information included in them is accurate. The directors' scrutiny of the financial statements involves understanding their content, and if necessary, making further enquiries if matters revealed in the financial statements call for such enquiries.[1144] The director should then bring the information known or available to them in the normal discharge of their responsibilities to the task of focussing upon the financial statements.[1145]
10. The Corporations Act 2001 (Cth) explicitly requires that the declaration required by s 295(4)[1146] and the annual directors' report must be made in accordance with a resolution of the directors.[1147] In that manner, the Act imposes ultimate responsibility for those matters upon the directors in a way that they cannot delegate. They must themselves determine to adopt the required resolution.[1148] Accordingly, while the company has an obligation to prepare the directors' declaration under s 295(4), the directors bear the primary responsibility for the declaration itself. However, as his Honour pointed out, that does not mean that the directors are not entitled to seek assistance in carrying out their responsibilities, or to rely on others.[1149]
11. Consequently, it is not possible for directors to simply put the discharge of their functions into the hands of apparently competent and reliable persons, because the Corporations Act 2001 (Cth) makes the directors themselves a part of the process, by requiring them to undertake the task of approving and adopting the financial statements and reports.[1150]
12. While directors are required to take reasonable steps to place themselves in a position to guide and monitor the management of the company, they are entitled to rely upon others (at least except where they know, or by the exercise of ordinary care should know, facts that would deny reliance).[1151] In this respect, it is clear that an objective standard of care is applied to company directors.[1152]
13. I note that the issues in dispute in Healey did not require Middleton J to form a view as to whether directors should have a degree of accounting literacy that required a knowledge of accounting practice and of the Accounting Standards.[1153] In that case, ASIC had pleaded only that a director required a routine knowledge of and basic application of the tests for the classification of liabilities, and it was not suggested by ASIC that directors needed to have a working knowledge of all of the Accounting Standards, or even of some of them.[1154]
14. In Healey, Middleton J also considered the extent to which a director could rely on an audit committee. His Honour observed that

whilst an audit committee has an important role of monitoring and oversight, this is not to the exclusion of the role of a director to consider the financial accounts. This does not involve a director being familiar with every accounting standard, but sufficiently aware and knowledgeable to understand what is being approved or adopted.[1155]

1. Those statements are of some relevance in assessing the claim by YAC's directors that they relied on their auditors (in addition to their accountants) to determine what was required by applicable Accounting Standards.
2. In my view, given the difference in view between the expert witnesses, and the evidence as to KPMG's view of the requirements of AASB 10, the directors of YAC could not reasonably be expected to be familiar with the detail of the Accounting Standards, so as to be able to identify which Accounting Standards might be relevant to YAC's financial reporting obligations, and in relation to AASB 10, what the particular content of that Standard required for YAC's financial reports. To that extent, the directors were entitled to rely upon the expert advice of their accountants as to what Standards may apply.
3. However, accountants (and auditors) cannot determine what Standards may apply, and how, without being provided with all potentially relevant factual information. The directors and officers of a company are clearly responsible for providing their accountants and auditors with such factual material as they need to identify what is required to comply with the corporation's financial reporting obligations. In assessing whether the YAC's directors and officers have reasonably, as well as honestly, relied on their accountants' advice, as the defendants contend, it will be relevant to identify whether the directors and officers have provided their accountants with all of the information required by them to prepare the accounts, and to audit those accounts. There was nothing in the evidence to indicate that the directors of YAC had failed to do so. That being the case, I do not see why the directors were not acting reasonably in relying on the advice given by their accountants, and confirmed by the opinions given by YAC's auditors.
4. There are two further arguments with which I should deal, in relation to the reasonableness of YAC's reliance on its accountants' advice. The first pertains to YAC's reliance on the advice of Mr Harrison. It was not in dispute that Mr Harrison was employed as YAC's inhouse accountant up until 2014. The fact that he prepared YAC's accounts, without consolidation of the accounts of YAC's related entities, was consistent with the approach to consolidation initially taken by KPMG. In my view, in those circumstances, the fact that there was no evidence as to Mr Harrison's qualifications, and that he was not called to give evidence, does not, contrary to the submission of counsel for the plaintiffs,[1156] preclude the Court from concluding that YAC's reliance on his accounting advice was reasonable.
5. Secondly, the plaintiffs sought to rely on evidence in relation to the terms of the agreement between KPMG and YAC. They submitted that the terms of that agreement directly contradicted the contention made by YAC that it had relied on KPMG's advice.[1157] In cross examination, Mr Woodley acknowledged that the terms of the agreement between KPMG and YAC made clear that YAC, and not KPMG, was responsible for the maintenance of written financial records that accurately recorded and explained its transactions so as to enable financial reports to be prepared and audited; that the directors and officers assumed responsibility for the risk of misstatements of fraud or error; that the directors took responsibility for the completeness and accuracy of the information supplied to KPMG, and of informing KPMG of material known to be contentious; that the directors were responsible for completing the directors' declaration confirming that financial reports were true and fair; that the directors took responsibility for classification of YAC as either a reporting entity or a nonreporting entity; and that KPMG would not perform any management functions for YAC nor make any management decisions.[1158]
6. In my view, nothing in that agreement undermined the evidence that YAC's directors in fact relied upon their accountants to prepare the accounts correctly, including to comply with Accounting Standards. Ms Cheedy's evidence made clear that notwithstanding the terms of YAC's agreement with KPMG, she continued to be of the view that YAC's directors were entitled to rely on YAC's accountants and auditors.[1159]
7. In all of the circumstances, even though (by virtue of this litigation) it is now apparent that YAC failed to comply with the requirements of subdivision 333A of the CATSI Regulations, I am not persuaded that its conduct constituted conduct which was contrary to the interests of the members as a whole, for the purposes of s 1661(1)(d) of the CATSI Act. I do not see any basis on which that conduct could be regarded as oppressive conduct under s 166-1(1)(e) either.
8. Even if I am wrong in that conclusion, however, I would not have granted relief (whether the appointment of a receiver or some other relief) under s 166-5 of the CATSI Act, or otherwise, in respect of this conduct by YAC.
9. In short, that is because YAC has now engaged KPMG to act as its accountant, and has engaged Grant Thornton to act as its auditor. I have no reason to doubt that those firms will assist to ensure that YAC complies with the requirements of AASB 10 in the future.
10. I deal further with the question of relief below.

(d) Signing off on the 2014 annual financial report when it contained material errors

1. The plaintiffs' case is that the board of YAC 'signed off' on YAC's annual financial report for the financial year ending 30 June 2014, but in the annual financial report for the financial year ending 30 June 2015, the same board 'signed off' on restated financial statements for the 2014 financial year, including restatements whereby YAC's total liabilities had been understated by $2.5 million and YAC's total equity had been overstated by $2.5 million.[1160]
2. The defendants agree that the 2015 annual financial report contained a restatement of the accounts set out in the 2014 annual financial report, as asserted by the plaintiffs. However, the defendants say that the restatement was necessary because the accounts set out in the 2014 annual financial report incorrectly recorded a $2.5 million payment YAC received from Rio Tinto pursuant to the Participation Agreement as revenue in YAC's accounts, rather than revenue in YPCT and YCT. The defendants say that this error was identified by KPMG late in 2015 when it reconciled information it received from Rio Tinto with the balances in the accounts of YPCT and YCT.[1161]
3. The defendants also say that YAC's 2014 accounts and the 2014 accounts of YPCT and YCT were audited by David Swords and Grant Thornton respectively. The defendants say that the directors relied on the representation of YAC's auditor that YAC's account were stated in the report correctly.[1162]
4. It was not entirely clear why the plaintiffs contended that this error constituted conduct falling within s 166 1(1)(d) or (e) of the CATSI Act, but I have assumed that it was on the basis that it is not in the interests of the members as a whole to be presented with accounts which are incorrect, and which may therefore be misleading as to the true financial picture of the corporation.

1. I make the following findings of fact relevant to the plaintiffs' allegation.
2. YAC's accounts for the 2014 financial year were prepared by Chris Harrison, who was then YAC's in-house accountant, and its chief financial officer, and those accounts were audited by YAC's auditor at the time, Mr David Swords.[1163]
3. Ms Cheedy gave evidence of her reliance on YAC's accountants and auditor in relation to the preparation of the accounts.[1164]
4. Mr Graeme Sheard, of KPMG, explained in his evidence that under the Participation Agreement, which Rio Tinto and YAC entered into in 2013, Rio Tinto is required to pay a rate, determined by a formula, for every tonne of ore transported by rail across Yindjibarndi land (rail tariff). The Participation Agreement provides for the rail tariff to be paid to two trusts established for the Yindjibarndi people, namely YPCT and YCT.
5. Mr Sheard was of the understanding that before those trusts were established, Rio Tinto paid a sum of $2.5 million to YAC as an advance against future rail tariffs. At the time that that advance was made, YAC incorrectly recognised that payment as its own revenue. Mr Sheard deposed that when KPMG was first engaged to act for YAC, its review of YAC's records identified that the original payment of $2.5 million made by Rio Tinto to YAC had been incorrectly recorded by YAC as its revenue, and not as an advance by Rio Tinto to YCCL as the Trustee of YPCT and YCT.
6. Mr Sheard's evidence was that a restatement of the accounts of those entities was required to reflect the correct position, and the 2015 accounts of both YAC and of the Trusts reflected that restatement. Mr Sheard's evidence was that the $2.5 million payment was thereafter reflected as a loan payable by YAC to the Trusts. Mr Sheard's evidence was that:[1165]

Restatements of accounts to adjust for errors in prior years are not uncommon and occur from time to time in public companies and more so in private companies. ...

There is nothing untoward about the restatement other than it discloses an error that was made in a prior year that required rectification once identified in 2015.

1. Mr Sheard's evidence was that the loan between YAC and the Trusts was being repaid by YAC by setting it off against amounts owed by the Trusts to YAC from time to time for services rendered and invoiced by YAC to the Trusts.[1166]
2. I accept Mr Sheard's explanation for the restatement in YAC's 2015 financial report.
3. Ms OldmeadowHall's evidence was consistent with Mr Sheard's understanding of the position under the Participation Agreement. She explained that under the Participation Agreement, there were prepayments of the payments which would be required to be paid by Rio Tinto to YAC, and which were called 'advance payments'. The advance payments were to be set off against the benefits which were, in due course, paid under the Participation Agreement.[1167]
4. Ms Oldmeadow-Hall confirmed that in the 2014 accounts, YAC had overstated its revenue by $2.5 million, and in the 2015 report that error was corrected against the opening retained earnings (so that the error was treated as one prior to 1 July 2014).[1168]
5. Ms Shen also confirmed the manner in which the error had been adjusted in the 2015 financial statements, and confirmed that the error had been rectified in accordance with the relevant Accounting Standards:[1169]

the error arose in the financial year ended 30 June 2012 and it was identified by the accountants while preparing the 2015 financial statements. To correct this properly and because it was 2012 error, this adjustment was put against the opening retained earnings at 1 July 2013, which is in accordance with AASB 108 Accounting Policies, Changes in Accounting Estimates and Errors.

1. The existence of this error in YAC's accounts appears to have contributed to the concerns of members of YAC about the financial management of YAC. Ms Allery Sandy explained that she was concerned about financial management because at the 2015 AGM, held in November 2015, YAC informed members that 'its accounts for the previous year were wrong by $2.5 million' and that 'this would have shown YAC running at a loss the previous year. I do not recall any explanation being given for this mistake other than to blame it on the auditor'.[1170]

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. Counsel for the defendants submitted that having regard to Mr Sheard's explanation for how the error in YAC's accounts came to be made, and to the fact that those accounts were prepared by Mr Harrison and audited by Mr Swords, it could not be said that the signingoff by the YAC directors on the 2014 annual financial report, in those circumstances, was conduct which was caught by s 1661 of the CATSI Act.[1171] However, they submitted that even if that was conduct was caught by s 166-1(1), it 'is not in any relevant sense continuing. The error has been identified, accounts restated and YAC is repaying the money to both trusts'.[1172]
2. Counsel for the plaintiffs submitted that the claim by the Defendants that YAC had relied on its accountants and auditors in the preparation of the 2014 accounts, so that any failure was not conduct caught by section 1661(1) of the CATSI Act, was not open to be made because there was no evidence that all of the directors had in fact relied on the accountants and auditor, and because the auditor, Mr Swords, was not called to give evidence, nor was it shown that he was unavailable to do so.[1173] I do not accept that submission. It was clear from Ms Cheedy's evidence that she relied on the accountants and auditors to correctly prepare YAC's accounts. Given her evidence that none of the directors on the board of YAC had any financial training, I infer that the remaining directors also relied on the accountants and auditors to prepare the reports.
3. The error in this case arose from a decision as to how the $2.5 million advance paid by Rio Tinto should be recorded whether in the accounts of YAC or of YCCL. That decision was clearly one which required a knowledge of accounting principles and practice. In my view, the directors could not have been expected to possess that degree of knowledge. For the reasons set out above at [933] [944], I accept that the directors were entitled to rely on YAC's accountant, Mr Harrison, to prepare the 2014 accounts in accordance with relevant accounting standards, and on Mr Swords' audit of those accounts by way of confirmation.
4. Even if, in signing off on the 2014 financial report, the directors can be said to have failed to comply with the CATSI Act or CATSI Regulations, I am not persuaded that that conduct could properly be characterised as contrary to the interests of members as a whole, or oppressive to the members, for the purposes of s 1661(1)(d) or (e) of the CATSI Act.
5. Even if I am wrong in that conclusion, however, I would not have granted relief under s 166-5 of the CATSI Act, or otherwise, in respect of this conduct. That is because the error has been identified, and has been rectified in a manner consistent with the relevant Accounting Standards. No relief is necessary to correct the error, or to prevent similar conduct in the future. The identification of the error occurred because YAC engaged KPMG as its accountants, and they reviewed documentation in relation to YAC's financial position and the preparation of its accounts. I accept the submission of counsel for the defendants that this matter was 'an excellent illustration of the improvement in financial administration that has taken place since the appointment of KPMG'.[1174]
6. I will, however, take this conduct into account in considering whether the totality of YAC's conduct in relation to its conduct of meetings, and its financial management, constitutes conduct of the kind described within s 1661(1) and warrants the grant of relief.

(e) CEO's report not accepted on the basis that it did not relate to the affairs of YAC in the 2014 and 2015 financial years

1. The plaintiffs' case is that at the AGMs for 2014 and 2015 held concurrently on 30 November 2015, a motion put to the meeting to accept the CEO's report was lost. The plaintiffs' say that CEO's report was objected to on the basis that it only dealt with the history of the dispute between the members, with a short section on future plans, but said nothing about what had happened in the financial years which were the subject of the AGM.[1175]
2. The defendants do not dispute that there was an objection to the CEO's report, and that there was a motion to accept that report. They say that a poll was called for on the motion and that the motion was lost when 149 members voted in favour of the motion and 104 against, with the result that the special majority voting requirement in the Rule Book for decisions made by poll was not achieved.[1176]

1. I make the following findings.
2. At the concurrent AGMs for 2014 and 2015, held on 30 November 2015, YAC's CEO, Mr Woodley, presented his CEO's report. That report was objected to by Mr Bennett (counsel for the plaintiffs in the present action), who was at the meeting in the capacity of a proxy holder, and as the legal representative of WMYAC. Mr Bennett's objection was that the report 'took too long and [Mr Woodley] had spoken only about the history of the dispute and with a short section on future plans but had said nothing about what had happened in the past year'.[1177] One of the members of YAC then moved a motion that the CEO's report be accepted. The motion was seconded. Mr Bennett called for a poll, and one was taken in respect of that motion. The result of that poll was that 149 members voted in favour of the motion, and 104 members voted against the motion.[1178]
3. At the time, YAC's Rule Book required a majority of three quarters of the votes of the members present in order to pass a resolution of the members at a general meeting. Accordingly, while the motion had the support of a simple majority of the members, it did not achieve the special majority required for it to pass.[1179]

Did this conduct constitute conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. For the reasons set out below at [1012] [1014], I doubt whether the outcome of this meeting, in so far as it concerned the CEO's report can, of itself, constitute conduct of the kind referred to in s 1661(1)(d) or (e) of the CATSI Act.
2. However, it is unnecessary to determine that question because even if the outcome of the meeting, at least in relation to the CEO's report, constituted conduct of the kind described in s 1661(1)(d) or (e), I would not grant relief in respect of it. The conduct in question has long passed, nothing can now be done (nor is anything required to be done, in a practical sense) to alter the result of the vote in respect of the motion to accept the CEO's report. Further, by virtue of the amendment of YAC's Rule Book, to substitute the requirement for a three quarters majority with that of a simple majority, the provisions of the Rule Book which permitted the situation to arise, whereby the CEO's report was not accepted by a majority of the meeting, are no longer applicable.

(f) Alleged oppressive conduct by operating without any validly appointed directors

1. The plaintiffs' case is that YAC's AGMs for 2014 and 2015 were held concurrently on 30 November 2015. Their case is that at that meeting, the members failed to appoint any directors, leaving YAC without a board (because the terms of the previous directors had then expired). The plaintiffs also say that the CEO's Report was not accepted at the meeting (on the basis that it did not relate to the affairs of YAC in the 2014 and 2015 financial years) and that the only motion which passed was one put on the recommendation of KPMG, namely to replace YAC's auditor, Mr David Swords, with Grant Thornton.[1180]
2. The plaintiffs say that the persons who purported to hold directorships prior to 30 November 2015 continued to act as if they remained directors of YAC until 9 March 2016, when Le Miere J delivered his decision in Sandy [No 2][1181]. The plaintiffs contend that in Sandy [No 2], Le Miere J held that YAC had had no directors for the period from 30 November 2015, and on 23 March 2016 he appointed a receiver over the property of YAC until new directors were elected on 19 April 2016.[1182]
3. The plaintiffs' case is that in failing to appoint directors, the manner in which YAC was administered and in which its affairs were conducted was contrary to the interests of YAC's members as a whole, even though that conduct of itself may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company.[1183]
4. As I understand the defendants' case, they do not dispute that there was an AGM on 30 November 2015, a directors' meeting on 16 December 2015, motions put and passed (or not passed) at those meetings, the findings made by Le Miere J in Sandy [No 2], or the orders made by his Honour.[1184]
5. However, the defendants say that while the directors appointed at YAC's 2013 AGM continued to act in their capacity as directors after the AGM on 30 November 2015, they did so on the basis of their belief that s 24625(4) of the CATSI Act applied to extend their terms until the next general meeting.[1185] They do not dispute that Le Miere J found that s 24625(4) operated that way, and that his Honour found that the directors' appointment had expired at the end of the meetings on 30 November 2015.
6. The defendants also point to the fact that following the decision of Le Miere J, on 19 April 2016, the Registrar convened a general meeting of YAC's members and exercised his powers under s 6935 of the CATSI Act to amend YAC's Rule Book, including by replacing the requirement for a three-quarters majority for making decisions on a poll at general meetings with a simple majority requirement. The defendants say that at the general meeting on 19 April 2016, the election of directors was undertaken by secret ballot of the members, and new directors were elected.[1186]
7. The defendants agree that the failure of the members to appoint directors at the concurrent AGMs on 30 November 2015 left YAC without any directors. However, they say that the members did not appoint directors at that meeting because neither the block of YAC nominees nor the block of WMYAC nominees achieved a majority of three quarters of the votes cast on a poll. The defendants' case is that the failure of the members to appoint directors was not contrary to their interests as a whole because the appointment process was carried out in accordance with the Rule Book that applied at the time.[1187]
8. The defendants say, in the alternative, that if the failure of the concurrent AGMs to appoint directors was oppressive within the meaning of s 166-1(1) of the CATSI Act, then the Court should not make an order under s 166-5 because the oppression has ceased and was remedied by the orders made by Le Miere J in Sandy [No 2], and the subsequent action taken by the Registrar.[1188]

1. I make the following findings of fact in relation to this part of the plaintiffs' case.
2. The YAC AGMs for 2014 and 2015 were held, concurrently, on 30 November 2015 at the 50 Cent Hall in Roebourne. According to the minutes, 200 members of YAC attended the meeting (out of a total membership, at that time, of 428). Other people, including lawyers for YAC and lawyers acting for WMYAC, were present. The Directors' Report, the CEO's Report, the Inhouse Counsel's Report and the financial reports for the 2014 and 2015 financial years were presented to the meeting. All of those reports were accepted, apart from the CEO's Report, (for which the motion for acceptance failed to secure a 75% majority of supporting votes).[1189]
3. The last item of business at the meeting was the election of directors. Nominations for directors were considered in blocks of 12 members. The first motion that Lyn Cheedy, Middleton Cheedy, Pansy Cheedy Sambo, Tootsie Daniels, Caroline Fazeldean, Kevin Guiness, Angus Mack, Camelia Miller, Russell Sandy, Stanley Warrie, Sonia Wilson, and Rosemarie Woodley be appointed as directors.[1190] Ms Allan deposed that nine of the nominees in that group were persons who had been acting as directors of YAC.[1191] That motion was put to a vote and the votes in favour of the motion did not constitute a 75% majority, and the motion was lost.[1192]
4. The meeting then considered a motion that Michelle Adams, Rodney Adams, Gloria Lee, Jill Tucker, Ken Sandy, John Sandy, Allery Sandy, Aileen Sandy, Jayne Ranger, Francis Phillips, Pennoschea Little, and Jimmy Horace be appointed as directors of YAC.[1193] Ms Allan recognised nine of those persons as current directors of WMYAC.[1194] The votes in favour of that motion failed to achieve the 75% majority required and the motion was lost.[1195]
5. The consequence of those votes was that no directors were appointed on 30 November 2015. The plaintiffs took the view that as a result, YAC had no board of directors and requested that they be advised of any steps being taken by former directors of YAC, or its current management, to secure the appointment of a new board of directors.[1196] Mr Irving, YAC's inhouse counsel, took a different view. He advised the plaintiffs' solicitors that it was not the case that YAC had been left without a board of directors following the AGM held on 30 November 2015. Mr Irving contended that the terms of the previous directors were extended, by virtue of the operation of the CATSI Act, until the next general meeting.[1197]
6. A meeting of YAC's directors (that is, the former directors) was held on 16 December 2015. At the meeting, the directors considered 90 membership applications, and accepted 46. (The 90 membership applications comprised 40 applications that YAC had deferred as part of the membership process under the Settlement Deed, and a further 50 applications.) The directors also resolved to call a general meeting to be held on 1 February 2016, to appoint directors.[1198]
7. The names of the 46 new members were added to YAC's Register of Members on about 24 December 2015.[1199]
8. On 24 December 2015, Mr John Sandy commenced proceedings in this Court against YAC and the persons then claiming to be the directors of YAC, seeking a declaration that on the proper construction of s 24625(4) of the CATSI Act, the current board of YAC had not been validly appointed, a declaration that there were currently no directors of YAC, and an order that a receiver be appointed over the property of YAC.
9. On 6 January 2016, YAC issued a notice for a general meeting to be held on 1 February 2016 in Roebourne.[1200] After Mr John Sandy made an application for an injunction to restrain YAC from proceeding with that general meeting, YAC cancelled the meeting.[1201]
10. The proceedings commenced by Mr Sandy were tried in this Court on 22 and 23 February 2016 before Le Miere J. Mr Sandy contended that the terms of appointment of all of YAC's directors had expired on 10 September 2015. By virtue of s 24625(4) of the CATSI Act, the terms of the directors were extended until the next general meeting, which was held on 30 November 2015. However, on that occasion, motions for the appointment of directors were put, but not passed. Mr Sandy contended that that left YAC without validly appointed directors.
11. Mr Sandy also contended that the meeting of the directors on 16 December 2015 was not validly convened because it had not been called by a director, because reasonable notice had not been given to one of the directors (Ms Tucker), and because the resolution that the directors accept applications from 46 people for membership (new members) was put and passed for an improper purpose, namely to influence the outcome of motions to be considered at a general meeting of YAC on 1 February 2016 and, in particular, the motion to be put for the election of directors who supported the CEO and the previous directors of YAC, other than Ms Tucker.
12. Justice Le Miere upheld Mr Sandy's contentions, granted relief and ordered that YAC pay Mr Sandy's costs of that proceeding.[1202] His Honour made a declaration that on the proper construction of s 24625(4) of the CATSI Act, the terms of appointment of the former directors of YAC had expired at the conclusion of the AGMs of YAC on 30 November 2015, that there were currently no directors of YAC, that the purported directors' meeting which had been held on 16 December 2015 was not a valid meeting, that the resolutions purportedly carried at the directors' meeting held on 16 December 2015 were invalid and of no effect, and that by reason of those declarations, the 46 persons who had been admitted to membership of YAC at that directors' meeting were not members of YAC.
13. His Honour concluded that the purported meeting of directors held on 16 December 2015 and the resolutions passed at that meeting were invalid, because the person who called the meeting and the persons who attended had ceased to be directors on 30 November 2015.[1203] His Honour also held that reasonable notice of that directors' meeting had not been given to Ms Tucker, as she had not been given the usual seven days' notice of a board meeting.[1204] His Honour held that this was an irregularity that could not have been remedied by an order of the court and, had it been necessary to do so, he would have declared the meeting of the directors on 16 December 2015 to have been invalidly held by reason of this procedural irregularity.[1205]
14. Justice Le Miere also held that the directors had passed the resolution to accept the new members for membership and had resolved to hold a special general meeting early in the following year in the belief that the new members would support the incumbent directors, other than Ms Tucker, in the vote concerning the composition of the board, which was to be held at that special general meeting. One of the bases on which his Honour relied in reaching that conclusion was that the directors had approved only the applications of the new members, who were believed to be supporters of Mr Woodley and the incumbent directors, and did not consider the other membership applications that had been outstanding since at least 2014.[1206]
15. Justice Le Miere ordered that notice of his judgment and his reasons for decision be given to the Registrar, and stood over the question whether a receiver should be appointed, pending a determination by the Registrar as to whether he intended to take action, namely to appoint a special administrator.
16. On 15 March 2016, the Registrar advised YAC that[1207]

while some grounds may exist for placing YAC under special administration, it is not appropriate to do so at this time.

Special administration removes control of the corporation from its members for a significant period of time (usually a minimum of six months) and I am satisfied that the circumstances that YAC has no directors can be addressed through the exercise by me of other powers under the [CATSI Act].

1. The Registrar instead determined to call a general meeting of YAC's members to appoint directors of YAC.
2. At a further hearing in March 2016, Le Miere J made orders that, pending the conclusion of a general meeting called by the Registrar under s 43910(1)(d) of the CATSI Act for 19 April 2016, a receiver be appointed for YAC and all of its property.[1208] Further orders were made by Le Miere J in April 2016 to extend the powers of the receiver to investigate certain payments.[1209]
3. The Registrar subsequently gave notice of a general meeting of YAC to be held on 19 April 2016 in Roebourne. The items for consideration at the meeting included the election of directors of YAC, and consideration of a special resolution of members of YAC to amend YAC's Rule Book to ensure that if the terms of directors of YAC expired, that the directors holding office immediately before the expiry would continue until the members of YAC appointed new directors, or reappointed existing directors, by resolution at the general meeting.[1210]
4. Prior to calling that meeting, the Registrar initiated changes to YAC's Rule Book.[1211] Those changes included an amendment to rule 4.10.3(b) of the Rule Book to replace the requirement for a majority vote of three quarters of the members in order to pass resolutions, with a requirement for a simple majority only.[1212] In addition, the Registrar noted that in view of the concerns about delays in dealing with membership applications, and alleged non-compliance by YAC with its Rule Book, he proposed to issue a compliance notice to the directors of YAC following the election of the directors at the meeting on 19 April 2016.[1213]
5. The general meeting of YAC proceeded on 19 April 2016.[1214] The primary item of business was the election of directors. At the conclusion of voting, the Registrar declared that Tootsie Daniel, Rosemarie Woodley, Roseanne Mippy, Middleton Cheedy, Margaret Ranger, Kevin Guiness, Stanley Warrie, Sonia Wilson, Pansy Sambo, Lyn Cheedy, Camelia Miller and Angus Mack had been elected as YAC directors.[1215]

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) of the CATSI Act?

1. In my view, the plaintiffs have not established that relief should be granted in respect of this conduct pursuant to s 1665 of the CATSI Act. I have reached that view for the following reasons.
2. First, on the one hand, there is no doubt that the result in this case that a corporation was left without any validly appointed directors was clearly contrary to the interests of the members as a whole.
3. On the other hand, however, I have real reservations as to whether the fact that YAC was left without validly appointed directors following the rejection of the motions put to the AGMs on 30 November 2015, in the circumstances in which that came about, can properly be characterised as 'conduct' of a corporation's affairs. The word 'conduct' means 'a way of acting' and (in relation to a business) means the 'direction or management; execution' of the business[1216] and 'the action or manner of directing, managing, or carrying on (any business, performance, process, course, etc); direction, management'.[1217] I do not see how it can be said that an outcome of a vote, which YAC's directors and officers did not seek or procure, and which in fact was contrary to the outcome they sought, can properly be described as the conduct that is, the direction, management or carrying on of YAC's affairs. To reach that conclusion would require that the word 'conduct' be given a meaning so broad as to encompass even unintended consequences of the actions of a corporation or its members.
4. Furthermore, the statutory context appears to be at odds with such a broad construction. The other grounds in s 166-1(1) appear to be directed to intended, or at least foreshadowed, actions or omissions by a corporation, or its members. So, for example, s 166-1(1)(b) refers to 'an actual or proposed act or omission by or on behalf of' a corporation, and s 166-1(1)(c) refers to a 'resolution, or a proposed resolution, of members or a class of members' of a corporation. In addition, the purpose behind s 166-1 and s 166-5 is to ensure that the way in which a corporation is run, and the actions of it or its members, are fair to the members as a whole, and not unfairly discriminatory or prejudicial to individual members. The sections are directed to action by a corporation which has that unfair quality. To apply those provisions to the unintended consequences of actions of a corporation does not sit comfortably with that statutory objective.
5. Even if it could be said that proposing the motions for the election of directors, or the outcome of the vote on those motions, is part of the 'conduct' of YAC's affairs, it is difficult to see how that 'conduct' could be regarded as contrary to the interests of YAC's members as a whole (within the meaning of s 166-1(1)(d)) when the vote on each motion appears to have been conducted in accordance with the provisions of YAC's Rule Book at the time. Furthermore, in choosing not to vote in favour of a motion, the members of YAC were each clearly acting in a way they were entitled to act, and the fact that the motion in each case was lost must be regarded as an outcome contemplated by the Rule Book, particularly in view of the special majority required to pass a resolution. For that outcome to come to pass cannot be characterised as 'contrary to the interests of the members as a whole'.
6. In the end, it is unnecessary to reach a firm conclusion on this aspect of the construction of s 166-1(1) because even if the outcome of the vote at the AGMs on 30 November 2015 indicates that the conduct of YAC's affairs was contrary to the interests of the members as a whole, I would not grant relief in any event.
7. The 'conduct' said to fall within s 166-1(1)(d) of the CATSI Act is not ongoing. It had been remedied before the trial of the present proceedings, by virtue of the orders made by Le Miere J, and by the election of directors on 19 April 2016. Nothing more could now be done which would make any practical difference in relation to the 'conduct' or its consequences. Furthermore, in view of the relief granted by Le Miere J (which included declaratory relief), even the grant of declaratory relief in this case would be inutile. Finally, by virtue of the amendment of YAC's Rule Book in relation to motions put to the vote at a general meeting, to substitute the requirement for a three quarters majority with that of a simple majority, the provisions of YAC's Rule Book which permitted the situation to arise, whereby YAC had no validly appointed directors, are no longer applicable.

(g) Incurring costs in defending legal proceedings without authority from the board; and

Incurring and paying expenses in the period when YAC had no validly appointed directors

1. It is convenient to deal with these two allegations together.
2. The plaintiffs' case is that in the period between 24 October 2014 and 7 November 2014, the CEO of YAC, Mr Woodley, and YAC's inhouse legal counsel, Mr Irving, incurred costs on behalf of YAC in the amount of $118,755.99, without authority from the board of YAC. The plaintiffs say that those costs were incurred in defending legal proceedings brought against YAC by some of its directors and members, in circumstances where YAC was wholly unsuccessful in those legal proceedings, and was ordered to pay the costs of the successful parties.[1218] The proceedings to which the plaintiffs referred were those in Adams v Yindjibarndi Aboriginal Corporation RNTBC.[1219]
3. The defendants' case was that Ms Charmaine Adams and Ms Jill Tucker were appointed as directors of YAC at the AGM for YAC on 16 October 2014. They then called a general meeting of YAC to take place on 10 November 2014 at Roebourne. The defendants say that the purpose of the meeting was to consider and, if it thought appropriate, pass resolutions for the removal of 10 of their fellow directors and for the appointment of replacement directors, most of whom were directors of WMYAC at the time.[1220]
4. The defendants say that on 28 October 2014, Ms Charmaine Adams, along with Mr Ken Sandy and Mr John Sandy (who were among the proposed replacement directors) commenced proceedings in the Supreme Court of Western Australia seeking declarations as to the validity of the action taken by Ms Adams and Ms Tucker to call the general meeting, including by reference to the materials they caused to be issued to YAC's members to give notice of that meeting (Adams proceedings). YAC was the defendant to the Adams proceedings. It opposed the relief sought by Ms Adams and the other plaintiffs to that action.[1221]
5. The defendants say that on 7 November 2014, in Adams v Yindjibarndi Aboriginal Corporation RNTBC,[1222] K Martin J concluded that there should be declarations that the general meeting called for 10 November 2014 had been validly called, and that the motions set out in the notice for the meeting were able to be proposed at the meeting.[1223]
6. The defendants' case is that Mr Woodley and Mr Irving were authorised to incur expenditure on behalf of YAC in defending the Adams proceedings. The Defendants say that some time before the Adams proceedings were commenced, YAC had authorised its executive officers to incur expenditure of up to $100,000 in any single transaction.[1224]
7. The defendants say that YAC incurred $118,755.99 in costs in opposing the Adams proceedings, comprising legal fees of under $100,000 and counsel fees. The defendants also say that the issue of the authorisation of the expenditure on those legal costs was ventilated in an unsuccessful application by Ms Adams, Mr Ken Sandy and Mr John Sandy in the same proceeding for costs orders against persons not party to the proceedings, namely Mr Michael Woodley and Mr George Irving. The Defendants say that no finding was made that the costs incurred by YAC in the defence of the Adams proceedings were incurred without the authority of the then directors of YAC.[1225]
8. The defendants also say that YAC paid its costs of opposing the Adams proceedings, and the directors of YAC did not take any action against Mr Woodley or Mr Irving in respect of the expenditure on legal costs in defending the proceedings.[1226]
9. The defendants say that the general meeting called by Ms Adams and Ms Tucker took place on 10 November 2014. They say that a poll of members on the motion to replace 10 of the then current directors of YAC with new named directors was lost.[1227]
10. In relation to the balance of the allegations in this section, the plaintiffs say that in the period between 30 November 2015 to 9 March 2016, YAC incurred and paid significant expenses in circumstances where YAC had no validly appointed directors.[1228]
11. In addition, the plaintiffs say that in the period from 24 December 2015 to at least 9 March 2016 (when Justice Le Miere published his reasons for decision in Sandy [No 2],[1229]) YAC incurred expenses in defending the legal proceedings brought by Mr Sandy, in circumstances where YAC had no validly appointed directors and where YAC was wholly unsuccessful in those legal proceedings, and was ordered to pay the costs incurred by the successful party in bringing those legal proceedings.[1230]
12. The defendants say that after the concurrent AGMs for 2014 and 2015, at which neither motion for the appointment of new directors was supported by the requisite majority of the members of YAC, the directors who had been appointed at YAC's AGM for 2013 continued to act in their capacity as directors of YAC. The defendants say that those directors did so on the basis of their belief that s 24625(4) of the CATSI Act applied to extend their terms until the next general meeting. The defendants say that on 9 March 2016, Le Miere J published his reasons in Sandy [No 2] and held that s 24625(4) did not operate in that way, and that the directors' terms of appointment had therefore expired at the end of the concurrent AGMs, with the result that YAC then had no validly appointed directors.[1231]
13. The defendants' case is that between 30 November 2015 (the date of the concurrent AGMS for 2014 and 2015) and 9 March 2016, YAC did not pay any significant expenses outside the ordinary course of business.[1232]

1. In these reasons (at [34]), I have already briefly referred to the decision of K Martin J in Adams v Yindjibarndi Aboriginal Corporation RNTBC.[1233] It does not appear that there is any dispute between the parties in relation to the nature of the Adams proceedings, or the result of it. Those matters are, in any event, set out in the judgment of K Martin J.
2. There was no evidence to suggest that K Martin J substantively dealt with the question whether Mr Irving and Mr Woodley were authorised to incur expenses on behalf of YAC, in defending the Adams proceedings. I infer that his Honour did not deal substantively with that precise question, and consequently, I have proceeded on the assumption that the issue has not been previously determined by this Court.
3. The only additional factual findings which need to be made in relation to the plaintiffs' allegation arising from the legal costs incurred on behalf of YAC in the Adams proceedings concern the question of authority to incur those costs and expenses.
4. I find that YAC incurred just over $118,750 in legal costs, including counsel fees, in defending the Adams proceedings.[1234]
5. I find that the plaintiffs in the Adams proceedings applied for a nonparty costs order against Mr Woodley and Mr Irving, on the basis that they had not been properly authorised by the YAC board to incur the costs of legal advice and representation for YAC in the Adams proceedings, and that K Martin J dismissed that application.[1235]
6. In responding to that application, YAC filed an affidavit sworn by Mr Irving in which he deposed to the basis on which he formed the view that he was entitled to incur legal costs in considering, and then defending, the Adams proceedings. That affidavit was in evidence in this action.[1236] Mr Irving deposed that he considered that he had authority to engage external legal advisers (Cleary Hoare) on behalf of YAC for the purposes of advising on, and defending, the Adams proceedings 'without the need for YAC's Board of Directors to pass a fresh and specific resolution for me to do so'.[1237]
7. In summary, Mr Irving relied on a resolution of YAC's board, made on 10 March 2011, that YAC would oppose the WMYAC group with every legal avenue possible to protect Yindjibarndi country; a resolution of the board of directors on 22 February 2012, in which it resolved that Mr Irving, in his capacity as inhouse counsel for YAC, was authorised to incur debts on behalf of YAC as necessary for the briefing of external counsel to advise and appear in court; and a resolution of the board of directors on 23 January 2014, by which the board

in accordance with Rule 5.14 of YAC's Constitution, delegated their powers under Rules 8 and 9 of the Constitution with regard to the approval of expenditure to YAC's executive staff, provided that:

(i) Such expenditure was approved by 2 members of the executive staff;

(ii) Any single expenditure did not exceed $100,000; and

(iii) All such expenditures were ratified by the YAC Directors on a quarterly basis following the presentation of a quarterly payments schedule.[1238]

1. Mr Irving also deposed, in his affidavit in the Adams proceedings, that in their capacity as the executive staff of YAC, he and Mr Woodley had approved each of the invoices for Cleary Hoare in relation to the Adams proceedings, none of which was more than $100,000.[1239]
2. Mr Irving also deposed that the YAC board met on 23 October 2014, at which time he provided the board with advice (including from Cleary Hoare) that the notice of the general meeting issued by Ms Adams and Ms Tucker was invalid. Mr Irving deposed that 'none of the directors ... raised any issue at the meeting with respect to the engagement of Cleary Hoare to provide advice in respect of the Notice'.[1240] Mr Irving also deposed that the board met on 31 October 2014, after the Adams proceedings had been commenced, and he advised the board that he had briefed Cleary Hoare to act on YAC's behalf in the action. He deposed that 'no member of YAC's Board or executive raised any objection to YAC defending the [Adams proceedings] or to the engagement of Cleary Hoare for this purpose'.[1241]
3. I find that Mr Irving incurred legal costs, on behalf of YAC, in defending the Adams proceedings, including the costs of engaging Cleary Hoare to act on YAC's behalf in those proceedings, and that he did so on the basis of his belief that he was authorised to incur those expenses, on the bases set out above.
4. In relation to the plaintiffs' allegations that between 30 November 2015 and 9 March 2016, YAC incurred expenses, including legal expenses, when it had no validly appointed directors, I have already made a number of factual findings in relation to the proceedings in this Court before Le Miere J in Sandy [No 2]. The plaintiffs did not specify any particular expenses, or the total amount of the expenses, they say were incurred without any authority, because YAC's accounts for the 2016 year had not been published by the date of the trial, and they were not able to specify the level of expenses incurred between 30 November 2015 and 9 March 2016, or the nature of those expenses.[1242] There was very little evidence in relation to this issue. It was not in dispute that YAC defended the proceedings in Sandy [No 2]. In those proceedings, it was represented by external lawyers, from which I infer that YAC must have incurred expenses for its legal representation during that period.
5. Ms Cheedy was unable to recall what expenses were incurred by YAC during the period when it had no validly appointed directors. However, she accepted that the directors received a sitting fee for attending directors' meetings during that period.[1243]
6. The plaintiffs' case, as I understand it, was simply that by virtue of the declarations made by Le Miere J, which made clear that between 30 November 2015 and 9 March 2016, YAC did not have any validly appointed directors, any expenses paid on YAC's behalf during that period (including its legal expenses in defending the proceedings in Sandy [No 2], and any directors' sitting fees paid during this period) must necessarily have been incurred or paid without authority.

Did YAC's conduct constitute oppressive conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act?

1. In relation to the allegation that Mr Woodley and Mr Irving, on YAC's behalf, incurred expenses in defending the Adams proceedings, when they had no authority to do so, counsel for the plaintiffs submitted that the authorisation of YAC's executive officers to incur expenditure was contrary to rule 8 of YAC's Rule Book.
2. I am unable to accept that submission. At the relevant time, rule 8[1244] provided that:

All money of the corporation must be deposited into the corporation's bank account.

The corporation must give receipts for all money it receives.

All cheques, withdrawal forms and other banking documents must be signed by at least two directors.

All accounts must be approved for payment at a directors' meeting.

1. The requirement to approve accounts necessarily carries with it a power for the directors to give that approval. Under rule 5.14 of the Rule Book, directors were able to delegate any of their powers to another director, a committee of directors or an employee of the corporation, by passing a resolution to that effect.
2. The plaintiffs have not established that the delegation, by the directors of YAC, of their power to approve expenditure, was contrary to rule 8 or otherwise invalid. The plaintiffs have not established that when Mr Irving and Mr Woodley incurred expenditure that they did so in circumstances where they exceeded their authority under the delegation from the directors made in 2014.
3. Furthermore, the plaintiffs did not adduce any evidence to establish that the directors failed to ratify that expenditure, as part of the quarterly ratification of expenditure incurred by YAC's employees, as contemplated in the delegation. Mr Irving's evidence, that the directors did not raise any objection to Cleary Hoare being engaged to represent YAC in the Adams proceedings, suggests that payment of those expenses was probably approved by the directors, but in any event, the plaintiffs have not established that the expenses were not subsequently approved by the directors (consistent with rule 8 of the Rule Book) in any event.
4. The plaintiffs have not established that in incurring those expenses, YAC's conduct was caught by s 1661(1)(d) or (e) of the CATSI Act.
5. As for the plaintiffs' allegations that YAC incurred expenses when its directors had not been validly appointed, the plaintiffs have not established that any such expenses were not authorised. There was no evidence as to how any such expenses came to be incurred, or were paid, or when those expenses were paid. It therefore cannot be said that any such expenses were not approved for payment in accordance with rule 8 of the Rule Book, or by YAC's executives pursuant to the delegation to them of that authority.
6. The plaintiffs have not established that in incurring any expenses during the relevant period that YAC's conduct was conduct of the kind described in s 166-1(1)(d) or (e) of the CATSI Act.
7. I will, however, take YAC's conduct into account in considering whether the totality of its conduct in relation to its conduct of meetings, and its financial management, amounts to conduct within s 1661(1) so as to warrant the grant of relief.

7.3 Alleged continual non-compliance with the CATSI Act and Rule Book

1. The plaintiffs contend that in addition to the matters identified in the various categories of conduct considered above, there is evidence of general and consistent non-compliance by YAC with the CATSI Act and YAC's Rule Book.[1245] The plaintiffs point to the first compliance notice and the second compliance notice issued by the Registrar, and also allege that YAC has failed to adequately maintain its Register of Members.
2. The plaintiffs say that this conduct, in conjunction with the other conduct alleged, is such as to amount to conduct within s 1661(1)(d) and (e) of the CATSI Act.[1246]

1. The plaintiffs say that on 8 March 2011, following an examination of YAC's books during October 2010, a delegate of the Registrar (delegate) issued the first compliance notice to the directors of YAC pursuant to s 439-20 of the CATSI Act. The first compliance notice indicated that the delegate suspected on reasonable grounds that YAC had not complied with the CATSI Act and/or YAC's Rule Book in numerous respects.[1247] The plaintiffs say that 16 suspected noncompliant activities were identified,[1248] namely:
   • Persons who applied for membership after notices had been given for the AGMs for the financial years ending 30 June 2008 and 30 June 2009 were allowed to participate in the AGMs (paragraph A of the first compliance notice).
   • YAC did not hold its AGM for the financial years ending 30 June 2008 and 30 June 2009 by 30 November of each year (paragraph B).
   • The form and content of the notices for the AGMs for the financial years ending 30 June 2008 and 30 June 2009, and other general meetings were not correct as the notices did not provide information that members could appoint a proxy (paragraph C).
   • The minutes of the AGMs for the financial years ending 30 June 2008 and 30 June 2009 and other general meetings were not signed by the Chairperson within a reasonable time (paragraph D).
   • Decision-making did not take place in accordance with the applicable rules, as persons who were admitted as members after notices of the AGMs had been given were allowed to participate in decision making (paragraph E).
   • At least 21 days' notice was not given prior to the holding of general meetings (paragraph F).
   • Non-members were appointed as directors at the AGM for the financial year ending 30 June 2008 (paragraph G).
   • Directors did not give the requisite written consent to act as directors before being appointed (paragraph H).
   • Directors' meetings were not held every three months (paragraph I).
   • Minutes of directors' meetings were not signed by the Chairperson within a reasonable time after the meetings (paragraph J).
   • Cheques were not being signed by two directors of the corporation (but were instead being signed by the Chairman and an officer from Juluwarlu) (paragraph K).
   • Accounts were not passed for payment at directors' meetings (paragraph L).
   • Payments were made to related parties without material information being provided to members and without material being lodged with the Registrar (paragraph M).
   • YAC did not provide the required explanatory statement to members in relation to payments to directors and related parties (paragraph N).
   • Notice of the meeting to resolve to make payments to directors and related parties did not contain the required information (paragraph O).
   • Voting on the resolution for payments to directors and related parties was not carried out in the required manner, as related parties who were to be recipients of the payments were involved in the voting (paragraph P).
2. The plaintiffs say that the conduct of YAC referred to in the first compliance notice, where it contravened the CATSI Act and/or YAC's Rule Book, was such as to amount to conduct which fell within s 1661(1)(d) and (e) of the CATSI Act.[1249]
3. The plaintiffs say that the first compliance notice set out a number of actions that YAC was required to take to rectify the alleged breaches identified by the Registrar. They say that although the delegate sent a letter dated 25 October 2011 to YAC stating that he was satisfied that the directors had met the requirements of the first compliance notice, the conduct which was the subject of the first compliance notice remains relevant to the present action, because the prejudice that may have occurred from the breaches identified by the delegate had not been addressed. The plaintiffs allege that deficiencies in YAC's practices concerning payments to directors and related parties (paragraphs K P in the first compliance notice) have not been addressed.[1250] (I note that the plaintiffs did not specify any conduct in particular beyond that general description.)
4. The defendants do not dispute that the delegate issued the first compliance notice. However, they rely on the fact that on 25 October 2011, the delegate wrote to YAC's directors advising that he was satisfied that the directors had met all the requirements of the first compliance notice, and that the period during which the Registrar had been monitoring YAC had concluded. The defendants say that neither the delegate nor the Registrar took any further action in relation to the first compliance notice.[1251]

Factual findings in relation to the first compliance notice

1. I make the following findings in relation to the first compliance notice.
2. On 8 September 2010, ORIC caused authorised officers to examine the books of YAC and to report on the results of that examination.[1252] That examination was conducted pursuant to s 4531 of the CATSI Act. The objectives of the examination were to:[1253]
   • Assess the level of compliance, on or after 1 July 2008, with the CATSI Act, the regulations and YAC rule book;
   • Assess the viability and solvency of YAC as at the date of examination;
   • Check whether any material personal interests exist and whether they have been properly managed;
   • Check whether there is any corruption or misuse of corporation resources for personal benefit;
   • Report any lack of control, direction and management of the affairs of the corporation by the directors; and
   • Inquire into specific governance/operational concerns raised with the Registrar.
3. The report prepared as a result of that examination identified a number of breaches of the requirements of the CATSI Act. The report made the following recommendations:

Our examination identified a number of breaches to the CATSI Act and/or the corporation's rules. The breaches identified indicate that the corporation does not focus on the specific requirements of the CATSI Act and its rule books. However, it is apparent that the corporation, through its management agreement with [Juluwarlu], the corporation does maintain a certain level of governance and recordkeeping.

The corporation is wellrun and it appears that the corporation has the capacity to rectify the breaches identified if given the necessary training and support. However, some breaches are fundamental to the operation of the corporation including[1254]

• Applications for membership being received and accepted prior to the AGM on the same day and these new members participating in that AGM.
• Payments made to elders in consideration for culture, history and knowledge which, if deemed to be payments to members instead of a contract for services, would be in breach of the current rules.
• No formal policies and procedures in relation to material personal interests and related party benefits.
• Payments not being signed/authorised by at least two directors in breach of its current rules.
• Payments not being authorised by directors at a directors' meeting.
• ...
• Based on our examination, our recommendation would be for the Registrar to issue a compliance notice in accordance with s 43920(1) of the CATSI Act requiring relevant breaches to be identified, the financial position of the corporation be monitored and that governance training be undertaken.

1. On 8 March 2011, the Registrar issued the first compliance to YAC, pursuant to s 43920 of the CATSI Act.[1255] Pursuant to that notice, the Registrar required that the directors of YAC take specified action by a specified date, including:[1256]
   1. In the general business at the directors' meeting ... discuss and put in place a course of action to resolve the following matters and ensure that

3.1 All applications for membership are considered by the directors at a directors' meeting;

3.2 The names and details of persons who apply for membership after a notice has been issued for an AGM or a general meeting are not entered on the register of members until after the AGM or general meeting has been held;

3.3 The AGM is held by 30 November every year;

...

3.11 All payments are to be authorised by two directors;

3.12 All accounts have not been passed for payments by directors;

3.13 Any payments to directors or related parties which are over $5,000 in value need member and ORIC approval and the required explanatory statement to members ... .