Ugle v South West Aboriginal Medical Service Limited [2026] FCA 101

Relevant attributes of the constitution of SWAMS

1. The following attributes of the constitution have significance for the Plaintiffs' claim:

(1) the constitution provides for those who form part of the Aboriginal community for the area being served by SWAMS to participate as members in the conduct of the affairs of SWAMS;

(2) the decision to adopt the constitution was made in January 2023 at a time when SWAMS was subject to the provisions of the CATSI Act and for the purpose of SWAMS becoming registered under the Corporations Act and continuing its activities as a public company limited by guarantee;

(3) the transfer to registration under the Corporations Act was approved by the Office of the Registrar of Indigenous Corporations in October 2023;

(4) the constitution commenced operation upon the registration of SWAMS under the Corporations Act, an event which occurred on 12 January 2024;

(5) the constitution provides for the composition of the board of directors at 'the Registration Date' (cl 26). It names three people who will be on the initial board of the company as 'Member Directors' until 'the third AGM after the Registration Date'. Two of those people are Mr Hill and Ms Lesley Ugle. The third person has since resigned creating a casual vacancy. The constitution also identifies names other people who will be on the initial board until 'the second AGM after the Registration Date'. One of them is Mr Phillip Ugle. There are two other people each named as a 'Skills-based Director'. Their terms of office were specified as 'One year from the Registration Date';

(6) subject to the express provision for those named directors, the constitution provides for the term of office of a Member Director to 'be from the conclusion of the AGM held on the Meeting Date to the conclusion of the third AGM held after that date' (cl 27);

(7) in order to be eligible to be a Member Director, a person 'must have been a Member for at least 12 months prior to the date of the AGM at which the Member Director is to be appointed' (cl 28.1);

(8) the constitution specifies a selection process that is to be followed for appointing Member Directors (cl 29). The process involves the appointment of a Selection Committee by the directors (cl 29.2(a)). The Selection Committee is required to consider various specified matters which relate to the suitability of a nominated person to be a Member Director (cl 29.2(f)). If there is a vacancy, a notice is to be issued to each member inviting them to nominate for the vacancy (cl 29.2(d));

(9) all nominations for appointment as a director are required to be reviewed by the board to confirm eligibility prior to being put forward to the selection committee (cl 28.6);

(10) details of the nominees recommended by the selection committee are to be included in the notice of the annual general meeting (cl 29.2(g));

(11) the members at the annual general meeting 'vote to endorse each recommended nominee' (cl 29.2(h)). Those endorsed are appointed, those not endorsed are not appointed. The constitution is silent as to how a director is to be appointed if the selection committee's endorsed nominee is not appointed;

(12) if the chairperson is present at a general meeting and willing to chair the meeting then that person is to chair the general meeting (cl 15);

(13) the chairperson directs the manner in which any poll is to be taken and determines the result on any poll (cl 18); and

(14) 'Members are entitled to vote and will have one vote at general meetings of the Company if present in person, by attorney or proxy' (cl 20). Proxies may not vote on a show of hands (cl 22.1). Each member is limited to holding one proxy (cl 22.3). The written appointment of a proxy must be received at least 48 hours before the meeting (unless otherwise specified in the notice of meeting to which the proxy relates) (cl 24).

1. The following matters are not in issue, having been established on the undisputed affidavit material or accepted by Mr Phillip Ugle or Mr Hill when cross-examined.
2. SWAMS is the continuation of a corporate entity that had been established under the CATSI Act. It had operated and provided services to members for many years before its registration under the Corporations Act. When governed by the requirements of the CATSI Act, the entity as then constituted, was required to hold an annual general meeting by 30 November 2023. However, the required annual general meeting had not been held.
3. On 11 January 2024, a decision was made pursuant to the CATSI Act by a delegate of the Registrar of Indigenous Corporations to extend until 29 February 2024 the time for the holding of the annual general meeting required by the CATSI Act that would otherwise have been required to have been held by 30 November the previous year. The delegate did so 'to allow sufficient time for the corporation to complete its transfer across to ASIC'.
4. As has been mentioned, SWAMC became registered under the Corporations Act on 14 January 2024.
5. In April 2024, a general meeting of SWAMC was held. The minutes record the meeting as being an annual general meeting. It was the meeting for which the extension of time had been given. There is no explanation as to why it did not occur until April 2024 when, on the evidence, the time for holding the meeting was only extended to the end of February 2024. The business conducted at the meeting was concerned with the affairs of the continuing entity at a time before it was registered under the Corporations Act. The applicant claims that the meeting was the 'first AGM' for the purposes of provisions in the constitution concerned with the term of appointment of the initial Member Directors of SWAMS. The respondent claims that it was not an annual general meeting for the purposes of those provisions. These competing claims are dealt with below.
6. In August 2024, lawyers engaged by SWAMS provided an independent report recommending to the board, based on the findings set out in the report, that steps be taken to remove Mr Hill from the board of SWAMS in accordance with the constitution. Nevertheless, subsequently, at a time when Mr Phillip Ugle was the chairperson of the board, a decision was made by the board not to expel Mr Hill and also to pay him remuneration for the period in which he had been stood down pending the independent investigation.
7. An annual general meeting of SWAMS was held in November 2024. At that meeting, it was maintained by Mr Phillip Ugle and others that the annual general meeting was the first annual general meeting for the purposes of the constitution and, on that basis, their terms were ongoing. There was no consideration of the appointment of Member Directors at that meeting.
8. Just over a month later, in January 2025, the terms of the two Skills-based Directors named in the constitution came to an end. From that point on, Ms Lesley Ugle and Ms Michelle Munns (being two of the six initial Member Directors of SWAMS whose term commenced upon registration of SWAMS under the Corporations Act) considered themselves to be in a minority on the board.
9. On 20 March 2025, the board voted to stand down its chief executive officer (who had been in that role for the previous 10 years). The Plaintiffs say that the board's action was in retaliation for the fact that a report had been made by the chief executive officer to the National Disability Insurance Agency of a complaint that had been made by a whistleblower to SWAMS about the alleged conduct of Mr Hill. However, their case as advanced in submissions did not depend upon whether that was so.
10. Not long after the chief executive was stood down, two members of SWAMS gave notice by which they sought to call a general meeting of SWAMS. The notice proposed resolutions of no confidence in Mr Hill and Mr Phillip Ugle as directors. It raised matters concerning investigations conducted into the conduct of Mr Hill and matters concerning alleged behaviour of Mr Phillip Ugle.
11. A meeting was convened at which approximately 40 members attended. Mr Hill and Mr Phillip Ugle attended and closed the meeting stating that they had advice that it had not been properly convened. Issues arise as to whether there was any conduct at that meeting that might support the obtaining of violence restraining orders that were subsequently sought by each of Mr Hill and Mr Phillip Ugle against certain members of SWAMS. I will refer to the meeting as the Informal Meeting of Members.
12. On 23 May 2025, Mr Hill and Mr Phillip Ugle signed a notice requisitioning the directors of SWAMS to call a general meeting to remove Ms Lesley Ugle and another Member Director (Ms Suzanne Jones) as directors. The general meeting was proposed for 20 June 2025. It does not appear to have proceeded.
13. Almost a month later, a group of Elders from the Noongar community attended at the offices of SWAMS at the time that a board meeting was scheduled to be held. The group of Elders included people who had been involved since the start of the provision of medical services by SWAMS as an entity registered under the CATSI Act. Before the commencement of the board meeting, the Elders were allowed to address the members of the board who were present. They did so in the board room at the SWAMS premises. A prepared statement was read out to the directors by one of the Elders. The matters raised in the statement were highly critical of Mr Hill and Mr Phillip Ugle and their conduct in relation to the affairs of SWAMS. Amongst other things, the statement referred to a lack of integrity. It complained of disrespectful behaviour and verbal abuse by certain directors of SWAMS towards Elders. It described Mr Phillip Ugle as a dysfunctional chair of SWAMS who had created a toxic board. The Elders asked the board to bring forth a resolution to remove Mr Phillip Ugle as chairperson of SWAMS. I will refer this occasion as the Elders June Presentation.
14. Included in the statement was a demand that an Elders' delegate be appointed as a casual director of SWAMS. At the conclusion of the reading of the statement, Mr Hill informed the Elders that the board could not agree to their request that an Elder be appointed to the board. He told them that the constitution did not provide for the appointment of a representative of the Elders.
15. The Elders left and the board meeting was conducted. At the board meeting, the directors resolved to remove Ms Lesley Ugle as a member of SWAMS. The minutes of the board meeting record the reason for removal of Ms Lesley Ugle as being 'on the basis that her failure to disclose a material personal interest and her participation in governance matters while conflicted are prejudicial to the interests of the Company'.
16. The board held a further meeting the following week on 25 June 2025. It was also held at the SWAMS premises. Some of the Elders together with other community members attended at the premises at the time scheduled for the board meeting. The events that then occurred are contentious and, to the extent relevant to the present proceedings, are considered below. Mr Hill and Mr Phillip Ugle described the events as an unauthorised 'storming' of the SWAMS premises. I will refer to this event as the Alleged Storming.
17. Ms Lesley Ugle was one those who attended at the time of the Alleged Storming. She described the events as a peaceful protest to again request that the board appoint an Elder's representative to the board. She gave evidence that the nature of the response by Mr Hill and Mr Phillip Ugle, including calling the Police to have the Elders removed, was culturally disrespectful. She was not cross-examined as to these matters. Mr Hill and Mr Phillip Ugle were cross-examined as to whether their actions at the time were culturally appropriate.
18. The next day, Ms Jones tendered her resignation as a director of SWAMS stating in her notice of resignation her concerns about the board and referring to a lack of respect shown to the community and female board members.
19. On 30 June 2025, Mr Hill (as secretary of SWAMS) sent an email to Ms Lesley Ugle stating that the board had resolved to suspend her membership of SWAMS 'effective 18 June 2025' and that the suspension did not constitute removal of membership and did not affect Ms Ugle's current position as a director. The email indicated that Ms Ugle had a right to appeal the suspension to the board and that should the board resolve to expel Ms Ugle she would retain the right to appeal her expulsion as a member to a general meeting. This communication was in error in because it failed to reflect the fact that the board had already resolved at a meeting held on 19 June 2025 to expel (not suspend) Ms Ugle as a member, a decision that still stood at the time the email was sent.
20. Also on 30 June 2025, Ms Jenny Wallam was appointed as a casual Member Director (term to expire at the next annual general meeting) and Ms Alicia Khan and Mr Jarrad Zanich were appointed as Skills-Based Directors. Ms Khan and Mr Zanich are personal friends of Mr Phillip Ugle.
21. In August 2025, notices were issued under the signature of Mr Phillip Ugle as then Chairperson and sent to all members. The notices invited nominations for four vacant Member Director positions (three for a three‑year term and one for a one‑year term) for review by the Selection Committee.
22. About a month later, the board of SWAMS considered the position of Ms Lesley Ugle and, acting on the mistaken belief that the previous decision of the board had been to issue a suspension notice to Ms Ugle, resolved to issue Ms Ugle with a notice of expulsion. At the same board meeting, the board received a list of 20 members. They were described in the minutes of the meeting as 'behaving outside of the SWAMS Constitution and Code of Conduct'. The board resolved to issue each of those members with a notice of expulsion. The list included the three individuals other than Ms Lesley Ugle who comprise the Plaintiffs in these proceedings. The basis upon which the list was compiled and the reasons why a decision was made to expel them are both contentious and are considered below.
23. The next day, expulsion notices were sent to Ms Lesley Ugle and to each of the 20 members. They were expressed in the same terms. The matters in issue include the extent to which the reasons given in those notices had a proper basis in fact and were otherwise the genuine reasons for the expulsion. They terms of the notices are considered below.
24. Following the issue of the expulsion notices, Ms Lesley Ugle gave written notice that she appeals her expulsion as a member. Some, but not all, of the 20 other members to whom the expulsion notices were addressed also gave written notice that they seek to appeal their suspension.
25. At the end of October 2025, Ms Lesley Ugle complained that she had not been invited to the last three meetings of the directors of SWAMS and said that she would be seeking legal advice. Mr Phillip Ugle responded by email saying: 'You have already been informed on this matter, and there is no reason to continue emailing about the same issue. You are required to follow the process that has been clearly outlined for you'. On the same day, Mr Hill (as deputy chairperson and company secretary) sent the following email to Ms Lesley Ugle:

Thank you for your email.

As you are aware, a formal Notice of Expulsion from membership was issued to you in accordance with Clause 9 of the SWAMS Constitution. As a result, your position as a Director and your associated rights to attend Board or Committee meetings have ceased, effective from the date of that notice.

Accordingly, you have not been included in recent meetings or communications as these are matters reserved for current Directors and approved attendees only.

If you wish to seek independent legal advice regarding your expulsion, that is your prerogative. SWAMS will continue to act in accordance with its Constitution and relevant governance and regulatory obligations, including updates to the ACNC and ASIC registers.

1. Notice was given of an annual general meeting of SWAMS to be held on 27 November 2025, since postponed to 26 February 2026. As has been mentioned, issues arise as to whether it will be the 'second AGM' or the 'third AGM' for the purposes of the constitution. Of the three Member Directors referred to in the constitution whose terms are to run until 'the third AGM', one has resigned leaving Mr Hill and Ms Lesley Ugle as the only continuing Member Directors in that category.

1. Since the commencement of these proceedings, SWAMS has admitted that the persons who received expulsion notices and who submitted notices of appeal within time remain members of SWAMS. It has also indicated that it accepts that Ms Lesley Ugle remains a director of SWAMS on the basis of the application of s 203E of the Corporations Act, though it maintains that she is subject to the expulsion procedure as a member. However, SWAMS continues to maintain that the expulsion of members who did not appeal has taken effect. It also says that the appeals by those members who have appealed their expulsions (including Ms Lesley Ugle) are not to be heard at the annual general meeting but are to be heard at a general meeting of members which has been scheduled to be held on 26 March 2026 (that is, well after the scheduled annual general meeting).
2. During the course of the hearing, SWAMS accepted that it would be appropriate for orders to be made for an independent person to supervise the conduct of voting for the election of directors at the annual general meeting. It also accepted that there were irregularities in the Selection Committee process by which nominees for director positions considered to be vacant had been recommended. However, it maintained an objection to orders for an independent chairperson for the annual general meeting and did not concede that there should be changes to the proxy provisions of the constitution.

1. Taking account of the concessions made, the following matters remain for determination on the application:

(1) Will the next annual general meeting of SWAMS be the 'third AGM' for the purposes of the provisions in the constitution that provide for the length of term of appointment of the Member Directors whose appointments took effect upon registration of SWAMS under the Corporations Act?

(2) How many vacancies in Member Directors will there be at the next annual general meeting of SWAMS?

(3) Are the notices of expulsion dated 19 September 2025 valid and effective?

(4) If yes to (3), where a notice of appeal has been given in response to a notice of expulsion, is the appeal required to be heard at the annual general meeting scheduled for 26 February 2026?

(5) Has a proper basis been demonstrated for the making of orders under s 233 of the Corporations Act?

(6) If yes to (5):

(a) Should an order be made fixing the date for the holding of the next annual general meeting of SWAMS?

(b) Should orders be made modifying the proxy voting provisions in the constitution of SWAMS and, if so, in what terms?

(c) Should orders be made modifying the constitution of SWAMS only insofar as it applies to the next annual general meeting to allow for nominations for vacant board positions without undertaking the selection committee process?

(d) Should orders be made for an independent Chair of the next annual general meeting of SWAMS?

Issue (1): Will the next annual general meeting of SWAMS be the 'third AGM' for the purposes of the provisions in the constitution that provide for the length of term of appointment of the Member Directors whose appointments took effect upon registration of SWAMS under the Corporations Act?

1. Issue (1) raises a question as to the proper construction of the SWAMS' constitution. There was no substantive dispute as to the proper approach to the construction task. The relevant authorities are to the following effect:

(1) The 'principles involving the interpretation of commercial contracts apply to the interpretation of [constitutions], although having regard to their public dimension, caution is required in the use of extrinsic material': Australian Federation of Islamic Councils Inc v United Muslims of New South Wales Inc [2021] NSWCA 311 at [64] (Bathurst CJ, Bell P and Meagher JA agreeing); citing Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 at [55]‑[56] (Weinberg J), [124] (Kenny J), [239]‑[242] (Lander J).

(2) The need for caution is because 'constitutions, and replaceable rules, can be amended at different times and in different circumstances. In addition, the members who are the corporators at particular times may change': HNA Irish Nominee Limited v Kinghorn [2010] FCAFC 57 at [42] (Keane CJ, Jacobson and Rares JJ).

(3) The extent to which surrounding circumstances and extrinsic materials can be relied upon depends on:

(a) the 'special features' of the constitution, such as whether membership is closely held and static: Lion Nathan at [257] (Lander J); cited with approval in Shao v One Funds Management Ltd (ACN 117 797 403) (trustee of Iprosperity Jy Hotel Fund) [2024] VSCA 231 at [116] (Kennedy, Macaulay and Orr JJA); and

(b) whether the circumstances or materials were known to the members of the company and are easily ascertainable by third parties and future members: Lion Nathan at [59] (Weinberg J), see also [257] (Lander J); applied in Echunga Football Club Inc v Hills Football League Inc [2014] SASC 201; (2014) 121 SASR 449 at [37]‑[39] (Stanley J).

(4) The principles to be applied in interpreting the rules of a voluntary association should have due regard to the way in which such rules are prepared and should not make too much of infelicities in expression or apparent inconsistencies: are, like the construction of a corporate constitution, similar to the principles applicable to the construction of commercial contracts: Echunga Football Club Inc at [35]; cited with apparent approval in Cuthbert v Abbott [2023] QCA 139; (2023) 15 QR 337 at [53] (Bond JA, Boddice and Freeburn JJ agreeing); and applied to a company limited by guarantee in Thomas v Equestrian Australia Ltd [2022] SASC 151 at [38]‑[39] (Stanley J).

1. The Plaintiffs contended that the plain meaning of the constitution provisions as to the term of office of the initial Member Directors was that the length of their terms were to be measured by reference to the number of annual general meetings that in fact occurred after the constitution took effect in January 2024. Their position was that there have been two annual general meetings since then, one in April 2024 and one in November 2024. On that basis, they contended that the next annual general meeting (originally scheduled for November 2025 but now to be held on 26 February 2026) will be the 'third AGM' since the constitution took effect.
2. SWAMS advanced two main contentions as to why the annual general meeting held in April 2024 was not an AGM for the purpose of determining the terms of the initial Member Directors referred to in the constitution. First, it was said that the description of a meeting as an annual general meeting was not determinative. Rather, what was significant was whether the meeting had the incidents that were necessary for it to constitute an annual general meeting of the company. Second, on a proper construction of the constitution, an annual general meeting of SWAMS could not take place until 12 months after registration under the Corporations Act. Therefore, so it contended, the references to 'AGM' in the relevant constitutional provisions did not include the April 2024 meeting.
3. It may be accepted that the convening of a meeting that is called an annual general meeting does not, of itself, mean that the meeting will be an annual general meeting. In Guss v Veenhuizen [1976] HCA 25; (1976) 136 CLR 34, a meeting called an 'annual general meeting' was convened without accounts or a balance sheet being laid before the meeting or an auditor being appointed. As it did not meet the statutory requirements as to what was to occur at an annual general meeting, it was not an annual general meeting for the purposes of the statute.
4. Here, it is common ground that the provisions in the Corporations Act that require the holding of an annual general meeting do not apply by operation of s 111L. It is a provision that identifies sections of the Corporations Act that do not apply to corporations that are registered charities. Therefore, the requirements of an 'AGM' for the purposes of the constitution must be found in the terms of the constitution itself. The constitution has no express provision as to the convening of an 'AGM'. Nor does it have any express provision as to what must take place at an 'AGM'. As has been mentioned, the expression 'AGM' is simply defined in the constitution as 'the annual general meeting of Members'. Even so, an annual general meeting may be expected to receive a report as to the financial and other circumstances of the company for a prior year that is the subject of report to members at the meeting. Also, as has been explained, there is a requirement for the appointment of any required Member Directors to be endorsed at the 'AGM'. To the extent that there is a need for the appointment of Member Directors by the time of the meeting that is a matter that must form part of the business of the meeting if it is to be the 'AGM'.
5. Clause 13.3 provides:

A notice of an annual general meeting need not state that the business to be transacted at the meeting includes:

(a) the consideration of the annual financial report, Directors' report and the Auditor's report;

(b) the election of directors; or

(c) the appointment and fixing of the remuneration of the Auditor.

Accordingly, it might be said that it is implicit in the terms of cl 13.3 that each AGM of SWAMS will deal with each of those matters, that is to say they are required to be an incident of each AGM. However, an alternative approach is to say that cl 13.3 simply ensures that an annual general meeting where those matters are to be addressed need not include those a reference to those matters in the annual general meeting. In other words, the terms of cl 13.3 are consistent with the possibility that there may be general meetings that are AGMs even though one or more of the matters listed in cl 13.3 do not form part of the business conducted at the meeting. It deals only with the content of the notice.

1. In the present case, it is clear from the express terms of the constitution that the members will not be required to consider the appointment of Member Directors at the first AGM. All of the initial Member Directors will hold office until at least the second AGM. Thus it is the second AGM that assumes significance when it comes to the pool of members who may be appointed as Member Directors for the ongoing conduct of the affairs of SWAMS.
2. SWAMS placed considerable reliance upon the terms of an eligibility provision in the constitution that says that in order to be a Member Director 'a person must have been a Member for at least 12 months prior to the date of the AGM at which the Member Director is to be appointed': cl 28.1. SWAMS contended that the eligibility requirement is a contextual indication that the constitution did not contemplate two AGMs being held within the first year after registration of SWAMS and the commencement of operation of the constitution. If two AGMs could be conducted within that period then the terms of three Member Directors would come to an end (because the 'second AGM' had occurred) but there would be no member eligible for appointment as a Member Director. That would leave SWAMS with only three Member Directors until the next AGM. It was suggested that this would be contrary to cl 26.2 which provided for the board to consist of six Member Directors and up to four Skills-based Directors. This provision, it was said, manifested an intention that there should be six Member Directors, even though cl 26.1 provided that there will not be less than three nor more than ten Directors unless SWAMS in general meeting by resolution changes the maximum number. This, in turn, was said to support the submission that the meeting held in April 2024 could not be an AGM.
3. I am not persuaded that the terms of cl 26.2 over-ride the clear terms of cl 26.1 in the manner submitted by SWAMS. Rather, it seems to me that the two provisions must be read together. Significantly, cl 26.2 is expressed to by subject to cl 31 which provides for the appointment of a casual director to fill a vacancy in the number of Member Directors. Clause 31 is said to apply if SWAMS does not have the number of Member Directors that are 'required under clause 26.2(a)', namely six Member Directors. Although the terms of cl 26.2 require six Member Directors, in my view cl 26.1 recognises that there may be a period when not all six Member Director positions are filled (such as where there is a casual vacancy that is yet to be filled). In my view, considered in context, the purpose of cl 26.1 is to make clear that in the event of a vacancy, for whatever reason, the board will still have authority to conduct the affairs of SWAMS if there are at least three directors who hold office. However, the constitution requires there to be six Member Directors so a vacancy in any Member Director position must be filled in order to meet that requirement. In the meantime, provided there are three directors, they can continue to conduct the affairs of SWAMS. Under cl 31.3, the vacancy in an office of an initial Member Director will be filled for the remainder of the term of office for the vacant position. That is until the second AGM or the third AGM, as the case may be. In that manner, the provisions of cl 26.1 and cl 26.2(a) may be read together.
4. Taking all these aspects of the constitution together, there is a potential difficulty if an annual general meeting that relates solely to the affairs of the entity for a period of time before the constitution takes effect might qualify to be an 'AGM' for the purposes of the constitutional provisions concerning the initial terms of office of the Member Directors referred to by name in cl 26.3 of the constitution. As the facts in the present case expose, if the number of AGMs for the purpose of cl 26.3 are counted to include an AGM of that kind then the 'second AGM' may be held at a time when those persons who were members of the entity when it was registered under the CATSI Act (who have rights to be invited and considered as member of SWAMS) would not qualify for appointment as a Member Director. Indeed, a very large pool of potential Member Directors who have been members of what is a continuing entity would be excluded from appointment. In my view, that is a most unlikely consequence of what is, on the facts, a transition from once regulatory scheme to another of an entity that otherwise has a continuing character.
5. In all those circumstances, it seems to me that it is necessary to differentiate between two aspects. The first aspect concerns whether the April meeting had the required attributes of an annual general meeting. If the April meeting did have those incidents, the second aspect concerns whether the April meeting was the first AGM for the purposes of applying the provisions of cl 26.3 which specify the length of terms of the initial Member Directors by reference to AGMs described as the 'second AGM' and the 'third AGM'. The second aspect raises an issue as to the AGMs to be counted for the purposes of the provision.
6. As to the first aspect, the evidence is to the effect that the meeting held in April 2024 had the required attributes of an annual general meeting of SWAMS. Specifically, the April 2024 meeting involved: (a) tabling and accepting the minutes of an annual general meeting held in January 2023; (b) a report of the Chairperson in respect of matters in the 2022/2023 annual report; (c) a report from the Chief Executive Officer for the same annual period; (d) the presentation and adoption of an audited financial report for the same period; and (e) a report from directors.
7. As has been explained, the April 2024 meeting was conducted to meet obligations that arose when the company was a corporation subject to the provisions of the CATSI Act. It was not suggested that there was a requirement under the CATSI Act for directors to be appointed at an annual general meeting. Under a replaceable rule, the CATSI Act provided that directors may be appointed in general meeting: s 246‑15. It also provided that they may be removed in general meeting: s 249‑10(1). The term of appointment of directors was not to exceed two years: s 246‑25(2). There was provision for extension of that term until the next general meeting to ensure that the corporation always had directors: s 246‑25(4). Therefore, it appears that the business of an annual general meeting conducted to comply with the CATSI Act may or may not include the appointment of directors. In any event, by the time of the April 2014 AGM, the named directors had taken office under the constitution of SWAMS. It contemplated the term of each of the initial Member Directors to continue until, at least, the second AGM so there were no Member Directors to be appointed until then. Accordingly, I do not consider the fact that the April 2024 meeting did not consider the appointment of directors to be a reason, in and of itself, as to why the meeting was not an AGM for the purposes of the constitution.
8. For those reasons, I am persuaded that the April 2024 meeting in description, form and content was an annual general meeting that had all incidents contemplated by the definition of 'AGM' in the constitution, namely it was an annual general meeting of members of SWAMS being a company that did not have to convene an annual general meeting that conformed to the requirements of the Corporations Act. It was an annual general meeting that was required to be convened to meet the requirements of the CATSI Act, the time for convening of which had been extended on the basis that a meeting held after registration of SWAMS under the Corporations Act, and consequently under the constitution, would meet those requirements.
9. As to the second aspect, in my view, the AGMs to be counted for the purposes of cl 26.3 do not include annual general meetings that are convened solely for the purposes of reporting as to the affairs of the continuing entity that occurred entirely before the registration of SWAMS under the Corporations Act. That is because of the following matters of context:

(1) the terms of cl 5 which provide for a period of months for the migration of membership from the entity as registered under the CATSI Act to membership of SWAMS;

(2) the requirement that a person be a member of SWAMS for at least 12 months to be eligible for appointment as a Member Director;

(3) the fact that the counting of AGMs that relate wholly to affairs that precede the date of registration of SWAMS would give rise to the likelihood (as in fact occurred) that the second AGM would take place at a time when most migrated members were ineligible for appointment as a Member Director of SWAMS;

(4) the contextual matter likely to be known to those members (and indicated by the terms of cl 5.5 of the constitution) that SWAMS was a continuation of an entity that was registered under the CATSI Act; and

(5) the evident function of cl 26.3 in specifying the terms of initial Member Directors until the process of appointment of Member Directors specified in the constitution could be implemented (which involved the calling of nominations from eligible members for appointment as Member Directors at least three months before the relevant AGM followed by their consideration by a Selection Committee).

1. For those reasons, the ambiguity in the references in cl 26.3 to 'second AGM after the Registration Date' and 'third AGM after the Registration Date' as to which AGM is to be counted as the 'first AGM' is to be resolved on the basis that it is the first AGM of SWAMS in which there is reporting to members concerning the affairs of SWAMS conducted under the constitution. I would include in that an AGM that concerned a period where some but not all of the affairs were conducted by SWAMS under the constitution. As the April AGM did not concern those affairs and was confined to affairs that were conducted before SWAMS was registered under the Corporations Act it was not the first AGM of SWAMS for the purposes of the counting required by cl 26.3. It was an AGM of SWAMS. However, it was not the first AGM for the purposes of computing the end of the terms of the initial Member Directors as specified in cl 26.3.
2. It follows, in my view, that the first AGM for the purposes cl 26.3 was the November 2024 AGM.

Issue (2): How many vacancies in Member Directors will there be at the next annual general meeting of SWAMS?

1. For the reasons given in dealing with Issue (1), the next annual general meeting will be the second AGM for the purposes of cl 26.3. Consequently, by operation of the constitution, there will be three vacancies in the Member Director positions appointed until 'the second AGM after the Registration Date'.
2. There is also a vacancy in the Member Director position that had been held by Ms Munns. Under the casual vacancy provisions, the person appointed to fill that casual vacancy will hold office 'only for the remainder of the term of office of the vacant position'. In the case of Ms Munns, the remainder of the term of her office was until the third AGM.

Issue (3): Are the notices of expulsion dated 19 September 2025 valid and effective?

1. As was explained by Campbell J in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [82] ff, there is a long line of authority recognising that the rules of natural justice (or procedural fairness) apply to the exercise of a power of expulsion from membership of clubs and associations. A domestic tribunal (here the board of SWAMS exercising the power conferred by the constitution to expel members) which has no express procedure (or no express procedure that is inconsistent with observance of the requirements of procedural fairness) may be required by the common law to accord with the requirements of procedural fairness on the basis that there is a general obligation to do so where a decision is made by a body entrusted with authority which may affect proprietary rights or contractual interests: Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 at 250 (Griffith CJ), 255 (O'Connor J), 260‑262 (Isaacs J). Further, where the expulsion has consequences for contractual or proprietary rights, the Court will grant remedies in the form of a declaration as to invalidity of the expulsion and an injunction restraining steps to give effect to the alleged expulsion. The contents of what is required for the procedure to meet the requirements of fairness depends upon the circumstances.
2. These principles have been applied in relation to membership of a company limited by guarantee: McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 at 59 (Needham J).
3. The Plaintiffs claim that all of the notices of expulsion were invalid because the notices failed to comply with the requirement of procedural fairness. In the case of Ms Lesley Ugle, it is said that the decision to expel her was made without specifying any grounds. She says that the notice of expulsion that she was given on 19 September 2025 does not contain the genuine reasons for her expulsion.
4. Further, the Plaintiffs say that the notices of expulsion dated 19 September 2025 that were given to the 20 members are all expressed in the same terms. To the extent that they state reasons for their expulsion, the Plaintiffs say that the notices do not record the reasons of the directors. Rather, they contain a list of generic reasons expressed in general terms that do not apply to the specific circumstances of each of the 20 members.
5. In consequence, it is submitted that those who have received the notices of expulsion are unable to effectively exercise their right of appeal under the constitution because they do not know the real reasons for their expulsion.
6. For SWAMS, submissions were advanced on the basis that there was an obligation to afford procedural fairness to those members who were being expelled. The position of SWAMS was that the content of such obligations had been met by the terms of the expulsion notices.
7. In the present case it is significant that membership of SWAMS not only afforded the right to participate in the constitutional affairs of SWAMS but also qualified the member to receive subsidies and benefits provided by SWAMS. Expulsion deprived a member of these member subsidies and benefits. The rights and interests of those members in receiving those subsidies and benefits was removed by the expulsion decisions.
8. As to expulsion of members by the board, cl 9.2 of the constitution provides as follows:

The Board may expel the Member and cancel the Member's membership, if the Member:

(a) has committed any act or omission that will, in the opinion of the Board, be injurious to the reputation, interests or activities of the Company;

(b) has been convicted of an indictable offence; or

(c) steals from the Company.

1. SWAMS submitted that the notices of expulsion gave sufficient detail to satisfy the requirements of procedural fairness. It says the contents of the notices are to be measured against the nature of the appeal process. SWAMS contends that the appeal will take the form of a speech to those members assembled for the annual general meeting. It will be a speech as to why the person should be allowed to continue as a member. In that speech the member can raise matters that dispute the contents of the notice or can raise other matters. There will not be a decision as to whether the matters in the notice are upheld. Rather, there will be a vote of the members at the annual general meeting as to whether to reinstate the member. It is said that the notices give each of the 20 members sufficient notice of the grounds for their expulsion to be able to effectively exercise an appeal right of that kind.
2. As has been mentioned, SWAMS contends that those of the 20 members who did not appeal, being some eight members, have been validly expelled as members. Otherwise, it accepts that Ms Lesley Ugle and the other 12 members continue as members 'unless the members in general meeting resolve to terminate their membership'.
3. The Plaintiffs also rely upon the conduct of SWAMS in relation to the expulsions to support its claim that there has been oppression. That aspect will be addressed separately when considering Issue (5).
4. The case for the Plaintiffs to the effect that there had been a failure to conform with the requirements for procedural fairness focussed upon what was required to prepare an effective appeal. There was no separate claim that there had been a failure by the directors to afford procedural fairness when making the decision to expel. Nevertheless, the fact that there was no process conducted by the directors in which they informed the members concerned that consideration was being given to the exercise of the power conferred by cl 9.2 to expel them as a member and cancel their membership was an important part of the context. There was no suggestion that the board had given notice to the members of the alleged act or omission that justified the consideration by the board of the exercise of the power to expel. There was no suggestion that an opportunity was afforded by the directors for the members concerned to provide any submission as to whether there was a proper basis for expulsion. There was no evidence of the actual deliberation by the board as to the reasons for the exercise of the power.
5. These matters give rise to a fundamental difficulty in the present case. The only formulation of the alleged basis for the expulsion is to be found in the notices dated 19 September 2024. There is no evidence to connect the contents of those notices to what occurred at the meeting of the directors. There is certainly no evidence of any board papers setting out the matters for consideration by the board in relation to the expulsion. The minutes are extremely brief and are expressed in general terms.
6. Further, what emerged in the course of cross-examination of Mr Hill and Mr Phillip Ugle was considerable confusion as to the actual basis for the decision made by the directors and, indeed, whether the actual basis for the decision actually applied to many of the members. For reasons given below in dealing with Issue (5), I am persuaded that the notices dated 19 September 2024 do not record actual reasons for the decision made by the directors at the board meeting.
7. It follows that the right to appeal to the members is fundamentally compromised. As the notices do not contain the genuine reasons as to why a decision was made to expel each of the members, they are unable to address those reasons in their appeal to the members. It is not to the point that the form of the appeal may include reference to other matters that may sway the membership at the annual general meeting to resolve to allow the appeal for reason other than those addressed by the board. It would be unfair to require the appeal process to be conducted without each of the members knowing precisely why the board resolved to expel them from membership of SWAMS. All the more so, when removal has consequences for the enjoyment of the benefits and subsidies available to members.
8. It follows that it is not necessary to consider the line of cases concerned with whether the availability of an appeal may itself be sufficient to ensure that there was no procedural unfairness in that which preceded the appeal: see the review of the authorities by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [146]; and by Spigelman CJ in Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 at [7]‑[23]. In that regard, I note that the appeal provided for in the present case was not a fresh consideration. It was a process by which each member could make an entreaty to the members in general meeting. Fundamental to the effectiveness of that process as a means to redress unfairness in the procedure conducted by the directors was the need to be able to address the reasons for the director's decision. As has been explained the notices of 19 September 2024 failed to provide the foundation upon which that aspect of the appeal right afforded by the constitution may be exercised. As they did not accord procedural fairness in that respect, the notices of expulsion are not valid and effective.

Issue (4): If yes to (3), where a notice of appeal has been given in response to a notice of expulsion, is the appeal required to be heard at the annual general meeting scheduled for 26 February 2026?

1. For reasons I have given in relation to Issue (3), this Issue does not arise. I will deal with it briefly on the assumption, contrary to my conclusion on Issue (3), that the notices of expulsion were valid.
2. As to the right of appeal, the Plaintiffs say that appeals were notified before the notice was issued convening the AGM for 27 November 2025. It is said that cl 9.5 required that they be given an opportunity at the next general meeting after notice was given of the appeals. They say the next general meeting is the meeting which is now scheduled to be held on 26 February 2026. They say that contrary to those requirements, Mr Hill has informed those members who have appealed that their appeals will be presented at a general meeting to be held on 26 March 2026.
3. SWAMS made no submission against the proposition that, at the time that the appeals were notified to SWAMS, the annual general meeting had not been convened. Plainly, the requirement in the constitution was to refer the appeals to the next general meeting. The annual general meeting was the next such meeting. Had I not found in favour of the Plaintiffs on Issue (3), I would have determined that the appeals must be heard at the annual general meeting.

Issue (5): Has a proper basis been demonstrated for the making of orders under s 233 of the Corporations Act?

1. The Plaintiffs say that the conduct of the affairs of SWAMS has been oppressive to, or unfairly prejudicial to, or unfairly discriminatory against them in their capacity as members. Further they contend that, in consequence, pursuant to s 233(1) of the Corporations Act, the Court can make any order that the Court considers appropriate including any of the orders listed in that provision. The Plaintiffs say the orders that they seek should be made pursuant to s 233(1).
2. The relevant authorities concerning oppression and the making of orders under s 233 were reviewed by Stewart J in Scott v Aulich, in the matter of Aulich Civil Law Pty Ltd (in liq) [2025] FCA 1329 at [94]‑[101] in terms with which I respectfully agree. For present purposes, I note the following:

(1) conduct will be oppressive if that conduct is unfair according to ordinary commercial standards of reasonableness and fair dealing;

(2) the test to be applied is objective and requires consideration as to whether the conduct is outside the bounds of that which reasonable directors would consider to be fair;

(3) proof of mere prejudice to, or discrimination against, a member is insufficient unless there is commercial unfairness;

(4) where conduct is motivated by improper considerations it will be unfair; and

(5) if it is shown that a decision was motivated by a desire to achieve some particular unfairness against a member that fact may enable it to be concluded more readily that the unfairness was achieved.

1. The oppression authorities also refer to the need to have regard to characteristics of the company that have relevance for any evaluation as to whether the conduct lacks the required characteristic of commercial fairness. In the present case, in my view, the following characteristics of SWAMS have significance:

(1) SWAMS is a not-for-profit entity providing services and benefits to its members;

(2) the express objects of SWAMS focus upon the provision of health and health education. They expressly contemplate the adoption of culturally respectful institutional practices and processes for planning and delivery of health care and programmes;

(3) members of SWAMS must be Aboriginal or Torres Strait islander persons who normally and permanently reside in the region served;

(4) membership of SWAMS must be extended to all those persons who were members of the entity at a time when it was a corporation subject to the CATSI Act; and

(5) the CATSI Act was enacted to provide for culturally appropriate operation of corporations.

1. The fairness of action undertaken for the purpose of undertaking or maintaining control of SWAMS must be evaluated having regard to the above characteristics. It involves a consideration of the conduct through a very different lens to that which would pertain to steps taken to control the affairs of a public company being steps that could be pursued in the interests of a shareholder seeking to influence the commercial direction of that company.
2. The statement of claim in the proceedings adopted a narrative form. It pleaded a sequence of events, much of which has been described in these reasons. However, ultimately the matters that were said to amount to oppressive conduct, as pleaded and maintained in the submissions advanced for the Plaintiffs, concerned the steps taken in relation to:

(1) the terms of office of the initial Member Directors;

(2) suspension and expulsion of Ms Lesley Ugle and the expulsion of the 20 members;

(3) the process that had been followed in relation to the appointment of directors; and

(4) the obtaining and use of restraining orders.

1. The submissions also raised issues as to what was described as the 'date and format' of the annual general meeting scheduled for 26 February 2026. In my view, those issues were mostly about the nature of the relief sought rather than about whether there had been oppression of the kind described in s 232 of the Corporations Act.
2. The matters relied upon by the Plaintiffs were said to demonstrate that the directors of SWAMS, particularly Mr Hill and Mr Phillip Ugle had engaged in a pattern of conduct that was designed to maintain their position as directors and insulate them against accountability to members. In effect, instead of acting to advance the purposes of SWAMS, they were said to be feathering their own nest and suppressing any dissent amongst the membership of SWAMS as to how the affairs of SWAMS should be conducted. This involved challenging the claims by Mr Hill and Mr Phillip Ugle that their conduct had been undertaken in the interests of SWAMS and its members. It involved a claim that the reasons given for the relevant conduct were not the real reasons.
3. In what follows, I will deal each of the matters relied upon. I will then reach a conclusion as to whether the claim concerning the reasons for the conduct should be upheld.
4. Before doing so, I comment on one significant aspect. It concerns the claim that Mr Hill and Mr Phillip Ugle led a faction that was opposed to Ms Lesley Ugle and others. Mr Hill was taken to the terms of a letter addressed to SWAMS members enclosing a notice dated 7 April 2025 by which two members of SWAMS sought to convene a general meeting. He was asked about a statement in the letter to the effect that the two members were convening the general meeting because they did not trust the faction which controls the SWAMS board to behave honestly. It was put to Mr Hill that the reference to the faction that controls the SWAMS board was a reference to him and Mr Phillip Ugle. Mr Hill readily agreed. The response was significant because it confirmed Mr Hill's own understanding that there was a faction that controlled the board of SWAMS and it comprised Mr Hill and Mr Phillip Ugle.
5. Later in the cross-examination of Mr Hill, there was the following exchange after referring to the contents of an email from Ms Jones to the board tendering her resignation from the board:

She refers there to an imbalance of power on the board. Do you agree there was an imbalance of power on the board?---I believe the board was split.

And what was the split?---Possibly in terms of power, yes, there was. It was split in terms of one side was heavier than the other.

Which side was the heavier side?---In terms of - well, in terms of you looking at Phillip [that is Mr Phillip Ugle], myself, Janine, there were votes in terms of that. We had the numbers, but we weren't playing numbers. We were playing governance.

1. Again, this exchange supports the Plaintiffs' claim that the board of SWAMS was being conducted on a factional basis, that is to say on all issues there was a group of directors, that included Mr Hill and Mr Phillip Ugle that was exercising power in terms of voting. This is a surprising state of affairs to apply to a board of a not-for-profit entity where directors would be expected to be making decisions based upon their own independent assessment of what was likely to advance the objects of SWAMS for the benefit of its members.
2. When Mr Phillip Ugle was asked about the faction that controls the board of SWAMS, he said that he did not control the board and that he was part of the board. It was not a direct answer to the question. The issue was not taken further with Mr Phillip Ugle. I do not regard his answer as detracting from the evidence given by Mr Hill.

The terms of office of the initial Member Directors

1. For reasons I have given, the basis for the claim that the next annual general meeting of SWAMS will be the 'third AGM' have not been made out and that aspect of the alleged oppression has not been established.

1. As has been mentioned, shortly after the Informal Meeting of Members at which concerns were raised about the conduct of Mr Hill and Mr Phillip Ugle, the notice requisitioning a general meeting to remove Ms Lesley Ugle and Ms Jones as directors of SWAMS was signed by both of them. No basis for proposing the removal was provided in the notice. No satisfactory explanation has been provided by Mr Hill or Mr Phillip Ugle for their attempt to remove Ms Lesley Ugle and Ms Jones as directors at this time.
2. A few weeks later there was the Elders June Presentation. At the board meeting held immediately after the document from the Elders was read to the directors, the board resolved to remove Ms Lesley Ugle as a member of SWAMS. As I have explained, the reason recorded in the minutes was an alleged failure to disclose a conflict of interest.
3. As to the allegation of conflict, Ms Lesley Ugle deposed that she denied there was any personal conflict. She said that she had always been careful to disclose any real or perceived conflicts of interest. On her account, the only conflict allegation raised concerned her paid work at Boola Bidi. As to Boola Bidi, she said that her cultural responsibilities included assisting the Elders, which included volunteering at Boola Bidi running language classes and workshops. Ms Lesley Ugle also said that she was engaged by Boola Bidi on a casual basis to take cultural tours. She said that Boola Bidi had provided some cultural training workshops to SWAMS in the past. Ms Ugle was not cross-examined as to any of these matters. No submissions were advanced as to why her evidence should not be accepted. I accept her account.
4. SWAMS advanced no other basis for the alleged conflict that was said to form the basis for the resolution on 19 June 2025 to remove Ms Ugle as a member. The basis for the decision is not sought to be supported. The fact that Ms Ugle had undertaken casual paid employment for an organisation that has provided cultural training to SWAMS does not support the existence of a conflict of the kind that was recorded in the minutes as the basis for the removal of Ms Ugle as a member. That was said to be a conflict that meant she could not participate in governance matters, presumably as a director. In those circumstances, I find that there was no proper basis for the resolution passed at the board meeting on 19 June 2025 to remove Lesley Ugle as a member.
5. On 30 June 2025, Mr Hill in his capacity as secretary of SWAMS sent an email to Ms Lesley Ugle stating that the board had resolved to suspend her membership with SWAMS (noting that the resolution recorded in the minutes of the board meeting was to remove Ms Lesley Ugle as a member). The notice gave no reasons for the alleged suspension. As to the consequences of suspension, the terms of the notice were confusing to say the least. The notice said that there was an entitlement to appeal the suspension to the board and if the board resolved to expel Ms Lesley Ugle from membership there would be a right to appeal to the members in general meeting. The notice said that any removal of Ms Ugle's role as a director could only occur by resolution of the members. Nevertheless, the notice concluded in the following terms:

As your membership is currently suspended, you are not entitled to exercise the rights of a member under the SWAMS Ltd Constitution. However, in accordance with the Constitution and Board protocols, you may attend Board meetings in an observer capacity only during the period of your suspension. You will not be entitled to vote on matters or participate in Board discussions unless otherwise authorised by resolution of the Board.

1. Accordingly, the notice purported, on the one hand, to recognise that the board could not remove Ms Ugle as a director (which was the correct position) whilst, on the other hand, assert that Ms Ugle could not vote or participate in board discussions unless authorised by a board resolution to do so. The adoption of this manifestly inconsistent and indefensible position by which Ms Lesley Ugle, a director of SWAMS, was purportedly relegated to some form of observer status, supports the submission for the Plaintiffs that the real reason for the actions of Mr Hill and Mr Phillip Ugle was the exclusion of Ms Ugle from involvement in the affairs of SWAMS. As does the absence of any statement in the communication of the reasons for the alleged suspension.
2. On the same day, Ms Lesley Ugle responded by email to Mr Hill (addressed 'Dear Directors') stating that in accordance with her rights under the constitution she wished to appeal the decision. The email then said:

In order that I may prepare my case for presentation at the next general meeting please advise me within 7 days as to which of the grounds under clause 9.1 of the Constitution you are relying on for the suspension and the facts and evidence you are relying upon to justify my suspension on that ground.

1. On the evidence, there was no response forthcoming from Mr Hill or the board as to the alleged justification for what was then being said to be a 'suspension'. If indeed there had been a particular reason, you would expect that it could have been readily provided. Instead, the minutes of a board meeting of SWAMS held on 18 September 2025 include the following:

9. Director L Ugle Suspension Review

The Secretary [that is, Mr Hill] advised the Board that no formal response had been received from Director L Ugle following the issue of a suspension notice. The item was now back before the Board to discuss and consider if it wanted to proceed with the option of expulsion.

1. The minutes then record: 'That the Board agrees to issue Director L Ugle with a notice of expulsion'. As has been mentioned, the board also agreed to issue notices of expulsion to 20 other members. This aspect and the expulsions notices that were subsequently issued to those 20 members are dealt with separately below.
2. When cross-examined, Mr Hill gave evidence to the effect that the ground for Ms Lesley Ugle's removal was an alleged failure to disclose a material personal interest. He said it was a matter that came up in a forensic audit and the board was told about it though it did not receive the forensic audit. When pressed about whether Ms Lesley Ugle was told about the alleged basis for her expulsion (or suspension), Mr Hill gave an unclear answer which suggested that Mr Phillip Ugle had told Mr Hill at some point that Ms Lesley Ugle was told there were findings in the forensic audit. This was a strange answer having regard to the minutes of the meeting of 19 June 2025 at which the decision to remove Ms Lesley Ugle as a member was recorded. Those minutes refer to a verbal update being given to the board on the status of the forensic audit by the chairperson (that is, Mr Phillip Ugle) at a time when Ms Lesley Ugle had left the meeting. He is recorded as having advised that 95% of the documents requested had now been provided. The resolution to remove Ms Lesley Ugle is then recorded as being passed. Therefore, on the face of the minutes, the board resolution was passed at a time when the forensic audit was still being undertaken.
3. Mr Hill maintained that the removal was because Ms Lesley Ugle worked as a consultant. When it was put to Mr Hill that Ms Lesley Ugle worked as a cultural guide his answer was to the effect that she still failed to declare her conflict.
4. Later, in September 2025, the decision was again made to remove Ms Lesley Ugle (on the mistaken basis that the resolution in June had been to effect a suspension) the basis for the decision was a failure to respond to the suspension. It would be contrary to the minutes to suggest that there was some other reason for her removal. Indeed, as I have explained, Mr Hill's own evidence was to the effect that it was the alleged conflict issue that was the reason for the resolution in June, a position confirmed by the minutes of that meeting. For reasons I have given, the conflict matter was not a proper basis for removal of Ms Lesley Ugle.
5. Despite this, when pressed, Mr Hill tried to expand the reasons as to why Ms Lesley Ugle was removed. His attempts began in the following way:

The real reason for this resolution was that you wanted to remove Lesley Ugle from the company and the board because she was opposing you and criticising you. Isn't that right?---No. She was opposing a lot of the stuff that we were doing - trying to reinstate Lesley Nelson. However, there was other stuff that was coming based on that - what I was just saying. Did not disclose her conflicts. Also bringing - there was other stuff in terms of expulsion, followed on by going to the media as well, or bringing in the media, ABC.

1. Significantly, the answer from Mr Hill began by referring to the fact that Ms Lesley Ugle was opposing 'a lot of stuff that we are doing'. The form of that answer is revealing and is consistent with the Plaintiffs case that the fact who was in control ('we') were taking steps against Ms Lesley Ugle and others because they were opposed to what the faction in control was doing. The final sentence in the answer appears to be a reference to events that occurred much later when, on Mr Hill's account, Ms Lesley Ugle and others arranged for the media to be present at the time of the Alleged Storming on 25 June 2025 (that is more than a week after the resolution of the board to remove Ms Lesley Ugle as a member of SWAMS). However, Mr Hill immediately confirmed that it was the alleged failure to disclose a material personal interest that was the ground for the expulsion of Ms Lesley Ugle. The relevant question from senior counsel and answer from Mr Hill was as follows:

Well, let's take it one step at a time. You say the ground for this resolution of the board to remove Lesley Ugle as a member was failure to disclose a material personal interest?---That's correct. And I mean, based on that, and we've wrongfully expelled Lesley Ugle, and we've come to that decision, and we've now reinstated her back on because of our - the wording, but also, we knew that we could not do that.

1. Mr Hill was asked about why he told Ms Lesley Ugle that she could appeal to the board when the constitution said that the appeal was to the members in general meeting. I found his evidence dealing with why he had sent the email referring to a suspension, a right to appeal to the board and the observer status in the meantime to be confused and unconvincing. The fact that he now frankly admits that he did the wrong thing does not detract from the significance of what was done and the absence of any cogent explanation for what was done. These are matters that support the Plaintiffs case that these steps were taken for the purpose of excluding those who were not part of the faction led by Mr Hill and Mr Phillip Ugle.
2. On 19 September 2025, Mr Hill (as board member and secretary) signed and sent a letter to Ms Lesley Ugle purporting to inform her that the board had considered her conduct 'in the light of recent events and has resolved to take the following action'. However, that is not what had occurred in relation to Ms Lesley Ugle. Rather, the board had proceeded to give effect to her purported removal on the basis of the alleged conflict of interest. The letter then said:

Expulsion

The Board has resolved to expel you from the membership of SWAMS effective from 18th September 2025, on the basis that your conduct falls within the grounds set out in clause 9.2 of the Constitution. As a result, your membership will be cancelled and you will cease to be a member of SWAMS.

Specifically, the Board considered that your conduct falls within the following grounds:

clause 9.2: has committed any act or omission that will, in the opinion of the Board be injurious to the reputation, interests or activities of the Company;

The Board's decision is based on the following:

• Hijacking and disrupting Board meetings by Elders and members in a hostile and intimidating manner, preventing the Board from carrying out its lawful governance responsibilities.
• Storming SWAMS premises without authorisation, causing distress to staff and interrupting service delivery, thereby compromising community safety and organisational operations.
• Making unauthorised public statements to the media that misrepresented SWAMS operations, damaging the organisation's reputation and standing with funders, partners and the community.
• Inciting division and hostility within the community, undermining culturally safe operations and creating reputational risk to SWAMS.
• Engaging in conduct contrary to the best interests of the Company, including harassment of Directors, interference with governance processes, and behaviour amounting to disrepute.
• Unauthorised contact with SWAMS' legal representatives, incurring significant legal cost and exposing SWAMS to unnecessary liabilities.

Taken together, this conduct has caused reputational, financial, and operational harm to SWAMS and its ability to deliver essential health services to the Aboriginal community.

1. Immediately apparent is the absence of any reference to the alleged conflict of interest. Instead, there is a list of matters expressed in quite general terms that, for reasons I have given, were not the basis for Ms Lesley Ugle's purported removal.
2. Even so, Mr Hill subsequently relied upon the terms of the notice of expulsion. He went further and relied upon it as the basis for excluding Ms Lesley Ugle from board meetings. He did so when Ms Lesley Ugle complained by email on 31 October 2025 that she had not received an invitation to recent board meetings and had been taken off the SWAMS website as a director. There was then an email chain in which responses were provided by Mr Phillip Ugle. They culminated in the following email being sent by Mr Hill to Ms Lesley Ugle:

As you are aware, a formal Notice of Expulsion from membership was issued to you in accordance with Clause 9 of the SWAMS Constitution. As a result, your position as a Director and your associated rights to attend Board or Committee meetings have ceased, effective from the date of that notice.

Accordingly, you have not been included in recent meetings or communications as these are matters reserved for current Directors and approved attendees only.

If you wish to seek independent legal advice regarding your expulsion, that is your prerogative. SWAMS will continue to act in accordance with its Constitution and relevant governance and regulatory obligations, including updates to the ACNC and ASIC registers.

1. The email was copied to the other directors of SWAMS. Plainly, Mr Hill was seeking to rely upon the terms of the notice of expulsion of 19 September 2025 as the basis for claiming that Ms Lesley Ugle was no longer a director of SWAMS. This position can be contrasted with the terms of Mr Hill's email to Ms Lesly Ugle on 30 June 2025 when he notified her of what was then said to be a suspension of her membership. At that time, Mr Hill said:

4. Status as Director

We acknowledge that, under Section 203E of the Corporations Act 2001 (Cth), your position as a Director is protected. Any removal from your role as Director can only occur by resolution of the members at a properly convened general meeting.

1. Again, there is now a concession that the position adopted in the notice of 19 September 2025 is not correct. However, there is no explanation as to why that position was adopted and maintained up until that concession.
2. Finally, dealing with an earlier aspect of the chronology, Mr Hill was asked about the notice dated 23 May 2025 signed by him requisitioning a general meeting to remove Ms Lesley Ugle and Ms Jones from the board of SWAMS. When asked why he wanted them removed from the board, Mr Hill gave the following answer:

Because they put us into - in harm's way. They instigated a storming from the ..... community which put myself, my life and Philip Ugle's life at risk. We were physically - we physically had to hold the door up to stop community getting to us.

1. Leaving to one side whether, at the time of the Alleged Storming, there was any risk to life (a matter addressed below), as Mr Hill subsequently accepted, his answer justifying the notice referred to events that took place much later than the date when the notice was issued.
2. Mr Phillip Ugle was asked about the reason why the board removed Ms Lesley Ugle as a member of SWAMS. He gave a different account to Mr Hill. His answer was to the effect that Ms Ugle was 'breaching confidentiality' and '[s]he also tried to remove myself'. These were revealing answers. The first reason about confidentiality concerned alleged support that Ms Lesley Ugle and Ms Jones were providing for the CEO of SWAMS at a time when the CEO had been stood down pending a forensic audit. It is not a reason to be found in the minutes or the expulsion notice. The second reason is consistent with the Plaintiffs' case and contrary to the terms of the notice of suspension signed by Mr Hill and sent to Ms Ugle in September 2025. When Mr Phillip Ugle was subsequently taken to the minutes of the directors meeting in June 2025 which recorded the decision to remove Ms Ugle as being because of a conflict of interest, he then said that he would go by the minute because he was just recalling everything that Ms Lesley Ugle had done. This answer rather confirms that the real reason for removing Ms Ugle as a member was because of everything she had done. Later, Mr Phillip Ugle expressed the reason for the removal of Ms Lesley Ugle in terms that she was not upholding her directors' duties. I regard these aspects of Mr Phillip Ugle's account as being consistent with the Plaintiffs' case that the real reason for the attempts to exclude Ms Lesley Ugle was to maintain control by Mr Hill and Mr Phillip Ugle over the SWAMS board and to remove those who would require accountability.

1. After the board meeting on 18 September 2025, letters of expulsion in the terms quoted above were sent to each of the 20 members who the board had agreed to issue with notices of expulsion. The minutes refer to a list of those members as having been tabled. There is no suggestion that the matters listed in the expulsion letters that were sent the following day were tabled before the board meeting.
2. Mr Hill was cross-examined about the contents of the notices of expulsion. The following matters emerged from that cross-examination:

(1) notices in the same terms were sent to each of the 20 members;

(2) one of the matters on which the decision was said to be based was the Alleged Storming of the SWAMS premises without authorisation, but Mr Hill conceded that a number of the 20 members were not involved in the Alleged Storming; and

(3) when asked about the reasons of the board for giving the notices of termination, Mr Hill referred to matters that were not in the notices.

1. Mr Hill gave evidence about how the list of 20 members came to be prepared. He said that it involved watching a video of events that took place at the time of the Alleged Storming. His initial account suggested that it was involvement in the Alleged Storing that was the basis for the expulsion of the 20 members.
2. Mr Hill did not suggest the terms set out in the letters of expulsion were presented to the directors meeting at which the board resolved to remove those members.
3. As Mr Hill's cross-examination unfolded, it became apparent that each of the matters contained in the letters of expulsion did not apply to each of the members. His evidence as to the connection between the matters in the list and each of the members was unconvincing. It included references to complaints that were not specified in the list.
4. Although Mr Hill's evidence as to the justification for the expulsions focussed very much on the events of the Alleged Storming, those events could not explain the inclusion of the names of a number of Elders on the list. Those Elders had been present at the Elders Presentation but not at the Alleged Storming. His own account of the events that took place at the Elders Presentation was to the effect that he allowed them to speak.
5. As I have explained, at one point in his evidence, Mr Hill advanced the Alleged Storming as a justification for his action in requisitioning a general meeting to remove Ms Lesley Ugle and Ms Jones. However, that was a matter that took place much earlier, before the Elders Presentation and the Alleged Storming.
6. Further, I do not accept that there is a foundation for statements by Mr Hill in the course of his evidence to the effect that he and Mr Phillip Ugle were put in harm's way or that their lives were at risk. His description of what occurred was that there was the use of a code to enter the SWAMS premises and that he had been pushing at the door to stop those who were trying to enter with members of the press. His account falls far short of his characterisation of those events as posing a risk of physical harm or that his life was at risk. I accept that there may well have been heated exchanges. The appropriateness of the action taken by those seeking to gain entry is not a matter for adjudication. It is not conduct that should be condoned. However, as to Mr Hill's account, it is significant that there were members of the media present and the police attended (it would seem at his instigation). If indeed, the events at the time of the Alleged Storming were as serious as Mr Hill sought to characterise them then there would be media reports and police charges. I observe that the letters of expulsion did not describe matters in the terms used by Mr Hill in his evidence. It referred only to 'causing distress to staff and interrupting service delivery, thereby compromising community safety and organisational operations'. Mr Hill's exaggeration counted significantly against the credibility of his overall account and the genuineness of his alleged concerns.
7. Mr Hill's account must also be considered in the context of the chronology of events. Action was being taken against Ms Lesley Ugle for a very considerable time before the Alleged Storming. Well before the Alleged Storming, the Elders raised their concerns with the board. Having regard to the nature of SWAMS and its activities, it may be expected that Elders would raise matters with the board if they had concerns as to the way in which its operations were being conducted. The sequence of events and the inclusion of the names of Elders who attended the Elders Presentation but not the Alleged Storming are significant aspects of the chronology when it comes to evaluating the genuineness of the alleged reasons expressed in the expulsion notice sent to Ms Lesley Ugle and the 20 members. The list collects together the names of those who have expressed disagreement with the way in which the board of SWAMS has been acting under the leadership and control of Mr Hill and Mr Phillip Ugle.
8. The conduct engaged in after the notice of expulsion was sent is also significant. As has been explained, it involved the unjustified restriction of Ms Lesley Ugle to a form of observer status and then the maintenance of a position (contrary to Mr Hill's earlier statements) that the expulsion meant that Ms Ugle was no longer a director. Throughout the later part of 2025 this was maintained as the explanation for her not being notified of directors' meetings. As is explained below, those members who were purportedly expelled were treated by the Selection Committee as not qualified for appointment as Member Directors. The appeals brought by members against their expulsions were arranged to be heard at a general meeting to be convened at a general meeting to be held after the annual general meeting.
9. Mr Phillip Ugle's account of the Alleged Storming was to the effect that those in attendance in reception with a reporter held a meeting in the reception area. He said that one of them grabbed the code for the door to the office from behind reception and used the code to try and gain entry. He said that those in reception all pushed on that door. He said that together with Mr Hill and the HR officer, he pushed back and they evacuated the building at the same time. He said that there were threats of violence at the time. I do not regard that account as supporting Mr Hill's claim to the effect that there was a risk to Mr Hill's life.
10. Mr Phillip Ugle was asked about why he had signed the requisition for a general meeting to remove Ms Lesley Ugle and Ms Jones from the board of SWAMS. The responses he gave were to the effect that they were breaching confidentiality and Ms Jones was 'playing games with her attendance at meetings'. These were not matters that had been mentioned by Mr Hill. They are not indicated in the documents. He also referred to claims that they had been working with the former CEO (who had been stood down) and that they had been interfering with the ongoing investigation being a forensic audit of the affairs of SWAMS. These also are matters not mentioned by Mr Hill.
11. When Mr Phillip Ugle was asked about the reason for the board issuing the 20 members with notices of expulsion he said that it was because they were part of the Alleged Storming. He then added that it was for disrupting the meeting of the board, being a reference to the Elders Presentation. His evidence then focussed not on the behaviour of the Elders at the time but the fact that they made demands for Mr Phillip Ugle to be removed and for Mr Hill to be expelled. His complaint was also to the effect that the Elders did not give any warning. It was put to him that there had been an email sent saying that the Elders wanted to come. He maintained that he did not know about that. However, the significant point for present purposes is that Mr Phillip Ugle's account did not refer to any hostile or intimidating behaviour. Rather, his concerns were about the fact that the Elders were demanding that he stand down as chairperson and that Mr Hill be removed and, on his account, that they came without warning.
12. When pressed as to why the 20 members were expelled, Mr Phillip Ugle then referred to reputational damage from going to the media and having the media with them at the time of the Alleged Storming. His evidence then culminated in the following question and answer:

Right. So my question is actually very simple, it's why did you expel these people?---So their conduct - their conduct and reputational damage, and acting against the best interests of the organisation - hijacking meetings. How can we get business done if our board meetings are getting hijacked, when there's threats of violence, when we have to remove potential doctors from the building that won't come and work for us because of these people's behaviours?

1. The last aspect of that answer was not the subject of any evidence from Mr Hill. It is not to be found in the terms of the notice of expulsion sent to the 20 members. It is not pleaded as a reason. Otherwise, the reasons stated by the end of Mr Hill's evidence were not those that he gave when he was first asked.
2. Having regard to all these matters, I find that the matters listed in the notices of expulsion were part of an extended attempt to justify the removal of those who opposed Mr Hill and Mr Phillip Ugle. The real reason for taking those steps was because Ms Lesley Ugle and those included in the list of 20 members had been critical of the conduct of Mr Hill and Mr Phillip Ugle. The removal of Ms Lesley Ugle and the 20 members was an attempt to avoid the ongoing criticism and scrutiny that would continue if they had ongoing involvement of the affairs of SWAMS. In short, the issuing of the notices of expulsion was the continuation of a course of conduct engaged in for the purpose of Mr Hill and Mr Phillip Ugle maintaining their control over the affairs of SWAMS.

The process followed in relation to the appointment of directors

1. The Selection Committee appointed to consider nominations for appointment of Member Directors of SWAMS comprised Mr Hill, Mr Zanich and Ms Khan. As has been mentioned, in August 2025, a call for nominations as Member Directors was sent to members. It was signed by Mr Hill. It referred to four vacancies, three for three year terms and one for a one year term. It required nominations to be submitted in an approved form. It stated that the Selection Committee would review and assess eligible candidates against the boards identified skills and attributes and will recommend nominees for election consideration at the annual general meeting. In fact, the matters to be considered by the Selection Committee were listed in the constitution: cl 29.2(f).
2. The Selection Committee recommended the appointment of the following directors:

Phillip Ugle (3 year term)

Janine Williams (3 year term)

Jenny Wallam (3 year term)

Alicia Khan (1 year term)

1. As may be expected, the constitution provided that a person must not be appointed on the Selection Committee if they are seeking appointment or reappointment: cl 29.2(b). Therefore, it was not possible for Ms Khan to be both a member of the Selection Committee and a person seeking appointment. Mr Hill's evidence was that at the time that Ms Khan was appointed to the Selection Committee she had put her name up for appointment as a Member Director. So, she was appointed at a time that she was known to be seeking appointment. Mr Hill sought to deal with this in his evidence by saying that when the Selection Committee deliberated about Ms Khan's appointment, she did not participate. This is not a course that conforms to the constitution.
2. Mr Hill was asked to explain why the board did not simply obtain a person from outside the board to be on the Selection Committee. He gave the following unconvincing answer:

I think, during that time, we just didn't - well, we wanted to fulfil everything that we could in terms of governance and move things - keep things going.

1. Of course, the appointment of an outside person would not mean delay. Mr Hill then disagreed with the proposition that the reason why he did not appoint a person from outside was that he wanted to control the reappointment process to make sure that the existing directors all got back and no one else did. Mr Hill's answer was to refer to the fact that, at the end of the day, appointment required endorsement by the members. However, it was apparent he was also aware that non-endorsement would be a problem for SWAMS. His view was that in the event of non-endorsement matters would come back to the board to see how SWAMS could move forward. That is to say, matters would remain in the hands of the board in his view.
2. Considered in the context of what else was happening in relation to the removal of Ms Lesley Ugle and the 20 members, I do not accept Mr Hill's answer. Those members who nominated for consideration for appointment as a Member Director, but had received notices of expulsion (being notices that issued some time after the Selection Committee had been established) were all excluded from consideration by the Selection Committee on the basis that they were not eligible. One such nominee was Mr Gavin McGuire. Mr Hill said he adopted that position on the basis that Mr McGuire ceased to be a member immediately upon being served with an expulsion notice. There are two problems with that approach. First, the expulsion only takes effect if the member does not appeal within time. Mr McGuire has a pending appeal. Second, under the terms of the constitution, eligibility was not a matter for the Selection Committee. It was a matter for the board: see cl 28.6.
3. Therefore, the actions by the board in relation to the removal of Ms Lesley Ugle and the 20 members taint the Selection Committee process.
4. There is another issue that arises from the recommendation of Ms Khan for appointment as a Member Director for a one year term. The constitution provides for the Selection Committee to consider nominations for Member Director positions that will become vacant at the end of the AGM. As has been explained, at the next AGM there will be three Member Director vacancies. The vacancy for which Ms Khan was nominated was a casual vacancy created by the resignation of Ms Munns. It is a vacancy until the end of the third AGM. Casual vacancies are filled by the directors not the members.

1. Mr Hill was asked whether he agreed with the affidavit account given by Ms Munns about what occurred at the time when the meeting referred to in the member's notice was convened. Although he initially appeared to give a qualified answer, he then said that he agreed with what was said in Ms Munns' affidavit. Those statements were to the effect that (a) Mr Hill and Mr Phillip Ugle attended the meeting and closed it on the basis that they had advice that the meeting had not been properly convened; (b) about 40 members attended and they remained to discuss their concerns; (c) in the words of Ms Munns: 'Members aired their concerns, and I did not witness any physical altercation nor hear any threats made to anyone in attendance'; and (d) Mr Hill and Mr Phillip Ugle remained in attendance and spoke with the members. These events happened on 30 April 2025.
2. Mr Hill then agreed that a violence restraining order that he said he had taken out in around July 2025 had in fact been taken out by him in the days after the meeting that had been attended by about 40 members. The order applied to Mr McGuire who had been one of the members present on 30 April 2025. The significance of the concession about timing is that Mr McGuire provided an affidavit in which he said that different members of SWAMS who attended the meeting on 30 April 2025 were served with violence restraining orders by Mr Phillip Ugle and Mr Hill claiming that those members had committed acts of violence against the two of them at the meeting. Mr McGuire also deposed to not seeing any acts of violence against Mr Hill and Mr Phillip Ugle at the meeting. Mr McGuire was not challenged as to these statements.
3. Mr Hill did not deal with these matters in his affidavit. He simply said that the violence restraining order against Mr McGuire was removed at a hearing around 13 January 2025 and save for one other violence restraining order he has no such orders in place against SWAMS members. In the circumstances, I take that to mean there are no such orders in place at the time of Mr Hill deposing his affidavit, being 20 January 2026. It is not a refutation of the statement by Mr McGuire.
4. The evidence in relation to restraining orders lends some further support to the Plaintiffs' case. However, I do not regard it to be a matter of significance in reaching an overall conclusion.

1. For reasons I have given, I am persuaded that the board of directors under the control of a faction led by Mr Hill and Mr Phillip Ugle have taken steps to seek to exclude Ms Lesley Ugle and the 20 members. Further, they have done so in order to maintain their control over the affairs of SWAMS and to avoid scrutiny by them. Having regard to the characteristics of SWAMS, their conduct is oppressive. They have no commercial interest to advance or protect by maintaining control. As board members of a community organisation being conducted in accordance with cultural practice in delivering benefits and services to members, reasonableness in the conduct of the affairs of the companies requires them to take steps to maintain cordial relationships and respond to concerns, especially concerns raised by Elders.

1. As has been mentioned, if there has been oppressive conduct of the affairs of a company the Court can make any order it considers appropriate: s 233(1). There is express provision for the making of orders modifying the constitution of the company and orders regulating the conduct of the affairs of the company in the future.

1. In closing, the Plaintiffs indicated that they sought the following orders:
   1. A declaration that the 2025 AGM is the third AGM of SWAMS and the expiry of Directors' terms should be determined accordingly.
   2. A declaration that all of the expulsion notices issued on 19 September 2025, pursuant to resolutions of the Board passed on 18 September 2025, are invalid and of no effect.
   3. An order modifying the Constitution as it applies to the 2025 AGM so that at that meeting:
      1. all six Member Director positions are to be filled; and
      2. an election is to be held, with all members who have nominated for Board positions participating as candidates and the six candidates obtaining the highest numbers of votes being elected;
      3. an independent person is to be appointed to chair the meeting; and
      4. an independent body is to be appointed to count proxies and conduct the election of directors.
   4. An order that SWAMS prepare and distribute to all members a revised notice convening the 2025 AGM, reflecting the orders of the Court and accompanied by a proxy form with appropriate voting instructions.
   5. An order fixing the date of the 2025 AGM.
   6. In the alternative to [2] above, an order that all outstanding appeals by members against expulsion be heard at the 2025 AGM.
   7. An order modifying the Constitution by deleting rule 22.3 [which provides that each member is limited to holding one proxy].

Particular matters bearing upon whether to grant relief in the terms sought

1. There is a need for the next annual general meeting to proceed as soon as possible. Under the constitution the terms of three Member Director positions will come to an end at that meeting. Consequently, there is a need for the nominations for at least those director positions to be brought before the annual general meeting for consideration by the members.
2. The constitution requires a long Selection Committee process. For reasons I have given, the process that has been followed is flawed and could not be the basis upon which nominations are put before the meeting. In order to conduct the nomination process there would be considerable delay which would extend the term of the existing directors (including the one appointee to a casual vacancy) that is to end at the second AGM well beyond the contemplated term. During that time there would be no opportunity for members to have their say in the composition of the board and the control of the affairs of SWAMS would remain with the faction of Mr Hill and Mr Phillip Ugle.
3. The problems with the Selection Committee process have been brought about as part of the oppressive conduct that I have found to be established. In those circumstances, I am persuaded that there is power to modify the constitution of SWAMS only insofar as it applies to the next AGM to allow for the appointment of Member Directors without undertaking the Selection Committee process.
4. In all the circumstances, I am persuaded that to address the consequences of the oppressive conduct as found it is appropriate to make orders that will allow for nominations for appointment as Member Directors to be considered at the next AGM.

1. Further, for the reasons just given, it is appropriate for orders to be made to fix the date for the next annual general meeting to ensure it is convened and held as soon as possible. There will also need to be provision for the distribution of a revised notice of meeting to give effect to the orders to be made.

1. As I have explained, the constitution provides for three Member Directors to be appointed at the next AGM. Therefore, the existing terms of the constitution would not be a sufficient basis to now make orders for all six Member Director positions to be filled at the next AGM. However, the requirements of the constitution are not the only basis upon which relief may be sought in relation to the appointment of directors. The Plaintiffs also submitted that the power conferred by s 233 should be exercised to modify the constitution as it applies to the next annual general meeting so that all six Member Director positions are filled. For the following reasons, I am persuaded that such an order should be made.
2. As I have explained, there has been oppression in the conduct of the affairs of SWAMS by its directors. It is oppression that has continued for some time. The reason for the conduct has been to retain control of the board. In those circumstances, in order to redress the oppression it is appropriate to make orders that will allow members in general meeting to determine the future composition of the whole of the board. There is the further consideration that, if the annual general meeting is not empowered to appoint all Member Directors, Mr Hill and Ms Lesley Ugle who have been major players in the relevant events would otherwise be continuing as directors and the third of the continuing director positions would be filled by the board as a casual vacancy.
3. The constitution contemplates a rotation in Member Directors. It would seem to be appropriate that if all Member Directors positions are to be vacant that of those appointed at the next annual general meeting, two should be for a three year term, two should be for a two year term and two should be for a one year term.

1. The orders contemplate that there will be an election conducted at the AGM at which the candidates for election to the six Member Director positions are those who nominated as part of the Selection Committee process. The difficulty I have with that course is that those nominations were sought at a time when the circumstances of SWAMS were different to that which is proposed by the orders to be made on the application. As I have indicated, those orders will provide for all six member Directors positions to be filled. Further, they will provide for an election process to be conducted at the AGM. They will do so in circumstances where the present proceedings have been conducted and the matters addressed in these reasons have been the subject of findings.
2. In all those circumstances, I consider it appropriate for the orders to be made to include provision for the calling of further nominations for the six Member Director positions. Once the nomination period has closed then notices convening the AGM can be sent. Appropriate dates should be specified in the orders for inviting nominations, sending the notice of meeting and the holding of the annual general meeting.

1. There was no issue between the parties as to the making of orders for the independent scrutiny of proxies and the conduct of the election of directors. I am persuaded that orders as to those matters should be made.
2. The proposed orders include provision for the six candidates obtaining the highest number of votes being elected. No submissions were advanced to the contrary. As matters presently stand, I am persuaded that an order as to the form of election should be made. For reasons I have given, it should accommodate staggered terms of appointment.

1. The current chairperson of SWAMS is Mr Phillip Ugle. Given the findings I have made in relation to oppression and the evidence as to past disagreement, I am persuaded that it would be appropriate for an independent chair to be appointed for the conduct of the next AGM.

1. The Plaintiffs seek orders that would allow for a member to hold more than one proxy. In the course of their evidence, each of Mr Hill and Mr Phillip Ugle agreed with the proposition that it was appropriate for there to be provision for voting by proxies for members of SWAMS so that those who were unable to attend physically could participate in the decisions to be made at an AGM.
2. For SWAMS it was accepted that the clause in the constitution that limited each member to the holding of one proxy was unusual. However, the proposed order changing that provision in the constitution was opposed. Essentially the reason advanced for opposing the order sought was that it would allow a member to accumulate proxies. However, it would still be necessary for those proxies to be obtained and to be in a form that did not direct the manner of exercise of the vote on a particular resolution. Given the characteristics of the company, it should not be assumed that members would provide proxies for a purpose other than participating in the decisions to be made in the meeting. Members have an interest in being able to participate in a company that provides medical subsidies and benefits for its members.

1. As to the two declarations sought. As I have explained, I am not persuaded that there should be a declaration that the next AGM will be the 'third AGM' for the purposes of cl 26.3. I am persuaded that there is a proper basis for determining that the expulsion notices are invalid and of no effect. However, not all the affected members were parties to the proceedings. I am persuaded that there should be declaratory relief in respect of the expulsion notices that were directed to each of the Plaintiffs. The declaration should be to the effect that those notices are invalid and of no effect. As matters presently stand, there appears to be no reason why the same position would not apply to the other members. Therefore, it may be expected that SWAMS would give effect to these reasons insofar as the interests of other members are affected and to do so in respect of the arrangements for the upcoming annual general meeting. It would also be expected that those other members would seek to continue as members of SWAMS. However, those other members were not given formal notice of these proceedings and therefore did not have an opportunity to be heard as to declaratory relief that would have a bearing upon their status as members of SWAMS. For that reason, I do not consider it appropriate to grant declaratory relief in terms that would extend beyond the Plaintiffs.
2. In all the circumstances, it seems to me that the appropriate course would be to reserve liberty to any member who was issued with an expulsion notice to apply for declaratory relief substantially in the same terms as that granted to the Plaintiffs.
3. Give the conclusions I have reached, there is no need to consider the proposed alternate relief for the hearing of appeals against the expulsion of members and whether that should include members who did not lodge appeals within time.

1. Arrangements should be made for the terms of the orders to be notified to members of SWAMS. The burden of doing so should fall on SWAMS. The orders should also make provision for any interested member to apply to vary or discharge the orders within a specified period.

1. Matters were raised with Mr Hill and Mr Phillip Ugle that appeared to bear upon their suitability to hold the position of Member Director of SWAMS. However, the case as formulated was concerned with the alleged conduct of the affairs of SWAMS for the purpose of maintaining control and excluding the board from accountability. I do not consider it necessary to make further findings about the other matters raised. I consider them to be of no material relevance to the matters relied upon by the Plaintiffs to support its claims of failure to comply with the constitution and oppression.
2. Likewise, resolution of the issues raised in this proceeding do not require the Court to consider the appropriateness of actions taken as part of the Alleged Storming of the premises of SWAMS.

Conclusion and provision for further hearing as to final orders

1. The parties will be given an opportunity to propose final orders to give effect to these reasons. The course I propose to follow is to list these proceedings for the making of final orders, including any orders as to costs on 26 February 2026 at 2.15 pm. I will require the Plaintiffs to propose the terms of final orders by 4.00 pm on 20 February 2026. I will require SWAMS to file a marked-up response by 4.00 pm on 24 February 2026. The parties should confer with a view to narrowing the extent of any dispute between them. Having regard to the scheduled date for the annual general meeting, I will, in the interim, order that the meeting scheduled to be held on 26 February 2026 be postponed to a date to be notified to members in accordance with orders to be made by the Court.

I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.